Mr A Lloyd-Penny v Automobile Association Developments Ltd: 3311886/2023
EMPLOYMENT TRIBUNALS
Case No 3311886/2023
Between
Mr A Lloyd-PennyClaimantAutomobile Association Developments LimitedRespondent
Before
Employment Judge Quill; Mr D Bean; Mr D SagarMs C Anderson (instructed by counsel) for respondentDate 18 July 2025
REASONS
[1]The Claimant is a former employee of the Respondent. The Respondent terminated his employment, asserting that he had failed to pass probation.[2]The Claimant brought claims alleging disability discrimination, in relation to the termination of employment, and during employment.[3]Judgment and reasons were given orally on 22 January 2025, and a date for a remedy hearing was arranged. The hearing and the evidence[4]The hearing took place in person, save that the Claimant’s witness, Mr Ingall, attended by video. 1 of 60 The bundle was approximately 253 pages.[6]The bundle included transcripts of 12 telephone calls [Bundle 127 to 170] and we were provided with the audio recordings of those calls.[7]The Claimant gave evidence, and also called a former employee of the Respondent, Mark Ingall.[8]For the Respondent, Mr Micheal Townsend gave evidence.[9]Each of them had prepared a written statement which they swore to, and answered questions on oath from the other side and from the Tribunal
The List of Issues
[10]In the hearing bundle, [Bundle 77 to 81] was the list of issues drawn up on 29 April 2024 at a preliminary hearing. Disability3.1 The Claimant has autistic spectrum condition.3.2 In an email dated 10 April 2024 the Respondent accepts that the Claimant is disabled for the purposes of the Equality Act 2010 and was so prior to his employment by the Respondent.3.3 The issue of the Respondent’s knowledge of the Claimant’s disability will be dealt with in its amended response. EQA, section 15: discrimination arising from disability3.4 Did the following thing(s) arise in consequence of the Claimant’s disability:3.4.1 In certain circumstances the Claimant found it difficult to process certain information which could trigger a “meltdown” during which he would raise his voice.3.4.2 The particular circumstances that the Claimant gave as examples of triggers are as follows:-3.4.2.1 If despatch allocated a job and then changed it and did not provide a legitimate reason.3.4.2.2 If despatch changed a number of jobs in a short period of time.3.4.2.3 If the Claimant could not log onto his software due to faults in the system, if the operations centre challenged him as to why he was taking so long.3.5 Did the Respondent treat the Claimant unfavourably as follows:3.5.1 Not being provided with support from his manager, Mr Michael Townsend.3.5.2 Not checking on the Claimant’s mental health.3.5.3 Not making the Claimant aware of the possibility of a referral to Occupational Health prior to 17 August 2023. 2 of 603.5.4 In or around June 2023 an elderly man in PSU (Control Centre) told the Claimant he was notorious within the department and they knew all about him.3.5.5 Dismissing the Claimant.3.6 Did the Respondent treat the Claimant unfavourably in any of those ways because of the things arising?3.7 If so, has the Respondent shown that the unfavourable treatment was a proportionate means of achieving a legitimate aim?3.8 Alternatively, has the Respondent shown that it did not know, and could not reasonably have been expected to know, that the Claimant had the disability? Reasonable adjustments: EQA, sections 20 & 213.9 Did the Respondent not know and could it not reasonably have been expected to know the Claimant was a disabled person?3.10 Did the Respondent have the following PCP(s): 3.10.1 A system whereby despatch could change jobs at short notice?3.11 Did any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that: 3.11.1 In the circumstance set out above, it could cause the Claimant to have a meltdown.3.12 If so, did the Respondent know or could it reasonably have been expected to know the Claimant was likely to be placed at any such disadvantage?3.13 If so, were there steps that were not taken that could have been taken by the Respondent to avoid any such disadvantage? The burden of proof does not lie on the Claimant; however it is helpful to know what steps the Claimant alleges should have been taken and they are identified as follows:3.13.1 Ensuring that despatch spoke to the Claimant calmly, politely and truthfully.3.13.2 Referring the Claimant to OH earlier.3.13.3 The Claimant’s manger supporting him.3.13.4 Making allowance for the Claimant’s meltdowns when conducting his probation review and not dismissing him.3.14 If so, would it have been reasonable for the Respondent to have to take those steps at any relevant time? Remedy3.15 If the Claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the Claimant is awarded compensation and/or damages, will decide how much should be awarded. 3 of 60
Remedy
[11]This list and the Respondent’s amended Grounds of Resistance were discussed with the parties at the start of this hearing.[12]At paragraph 16 of amended Grounds of Resistance, it was stated:[16]The Claimant made the Respondent aware of his Autism Spectrum Disorder at the interview stage prior to his employment. The Respondent therefore acknowledges that it had knowledge of the Claimant’s diagnosis at all material times.13. Thus that resolved the questions at paragraphs 3.8 and 3.9 of list of issues, while the question at paragraph 3.12 remained a live issue for the panel to determine.14. Within paragraph 20 of its Grounds of Resistance, at [Bundle 68], the Respondent set out the aims it relied on for the purpose of paragraph 3.7 of list of issues. These were: i. Ensuring a safe and appropriate working environment for all of its employees; ii. Ensuring that all of its employees are treated with dignity and respect in the workplace; iii. Ensuring a safe and appropriate environment for all of its customers; iv. Ensuring that all of its customers are treated with dignity and respect by its employees; and v. Ensuring that the Respondent’s reputation is not placed at risk.15. Subject to those clarifications, each side confirmed that the list of issues was still up to date and accurate, in their opinion. This list of issues formed the basis for the decisions we made. The Law – Liability Decision 16. The law which we needed to take into account includes the following matters. Disability[17]Section 6 of the Equality Act 2010 (“EQA”) defines disability. It is one of the protected characteristics defined by EQA. 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability. 4 of 60(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. ... (6) Schedule 1 (disability: supplementary provision) has effect.[18]By virtue of section 15 of the Equality Act 2006, the Tribunal should take the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice into account. The EHRC has published both an Employment Statutory Code of Practice and the supplement to it. Equality Act - Burden of Proof[19]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[20]It is a two stage approach.20.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. At this first stage it is not sufficient for the Claimant to simply prove that the alleged treatment did occur. There has to be some evidential basis from which the Tribunal could reasonably infer that there was a contravention of the act. The Tribunal can and should look at all the relevant facts and circumstances when considering this part of the burden of proof test.20.2 If the Claimant succeeds at the first stage then that means the burden of proof is shifted to the Respondent and the claim is to be upheld unless the Respondent proves the contravention did not occur. 5 of 60[21]In Efobi v Royal Mail [2021] UKSC 33, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong [2005] EWCA Civ 142 and Madarassy v Nomura International [2007] EWCA Civ 33.[22]As per Essex County Council v Jarrett [2015] UKEAT 0045/15/0411, where there are multiple allegations, the Tribunal has to consider each allegation separately when determining whether the burden of proof has shifted in relation to each one. That does not mean that we must ignore the rest of the evidence when considering one particular allegation. It just means that we assess separately, for each allegation, whether the burden of proof shifts or not, taking into account all of the facts which we have found. Time Limits for EQA complaints[23]In EQA, time limits are covered in s123, which states (in part): (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it Discrimination arising from disability[24]Discrimination arising from disability is defined in s.15 of the Act. 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and 6 of 60 (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[25]The elements that must be made out in order for the Claimant to succeed are that: there must be unfavourable treatment; there must be something that arises in consequence of the Claimant’s disability; the unfavourable treatment must be because of, in other words caused by, the something that arises in consequence of the disability. Furthermore, the alleged discriminator must also be unable to show either that the unfavourable treatment was a proportionate means of achieving a legitimate aim or, alternatively, that it did not know and could not reasonably have been expected to know that the Claimant had the disability.[26]The word ”unfavourably” in s.15 is not separately defined in the legislation but should be interpreted consistently with case law and the EHRC Code of Practice. Dismissal, for example, can amount to unfavourable treatment but so can treatment which is much less disadvantageous to an employee than dismissal.[27]Pnaiser v NHS England [2015] UKEAT 0137/15 makes clear that tribunal must identify that, if there was unfavourable treatment, the Tribunal must decide by whom. The Tribunal must then decide what caused that person or persons to subject the Claimant to the treatment in question. That includes making decisions about the conscious or unconscious thought processes of the alleged discriminator. There may be more than one reason or cause for the treatment and the “something arising in consequence of disability“ need not be the main or sole reason for the unfavourable treatment but must have at least a significant (or more than trivial) influence so as to amount to an effective reason for or cause of it. Having made decisions about what caused the alleged discriminator to act as they did, the tribunal will then have to determine whether the reason or cause is “something arising in consequence of” the Claimant’s disability.[28]In Risby v London Borough of Waltham Forest EAT 0318/15, the EAT made clear that an indirect connection between the Claimant’s unfavourable treatment and the “something” that arises in consequence of the disability can be sufficient. The EAT decided that the employment tribunal had been wrong to reject the section 15 claim on the basis that an incident in which the employee lost his temper was unrelated to his disability. On the facts, an effective cause of the loss of temper had been the employer’s decision to hold an event at a venue that was inaccessible to him because of his disability, that loss of temper led to his dismissal, and there was therefore a sufficient connection between the unfavourable treatment (his dismissal) and his disability for the purposes of section 15[29]When considering what the Respondent knew or could have reasonably been expected to know, the relevant time is the time at which the alleged unfavourable 7 of 60 treatment occurred. Thus, where there are different allegations, then the Respondent’s knowledge has to be assessed at the time of each alleged act or omission. For that reason, for example, what the Respondent knew (or could have been expected to know) at the time of a dismissal might be different than what it knew (or could have been expected to know) at the time of an appeal hearing. Proportionality[30]The complaint will not succeed if the Respondent is able to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim. The aim relied upon should be legal, should not be discriminatory in itself, and must represent a real objective consideration. Business needs and economic efficiency may be legitimate aims, but simply demonstrating that one course of action was less costly than another is not likely to be sufficient.[31]In relation to proportionality, the Respondent is not obliged to go as far as proving that the discriminatory course of action was the only possible way of achieving the legitimate aim. However, if there are less discriminatory measures which could have been taken to achieve the same objective then that might imply that the treatment was not proportionate.[32]It is necessary for there to be a balancing exercise which takes into account the importance of the Respondent achieving its legitimate aim in comparison weighed against to the discriminatory effect of the treatment. Regardless of whether the Respondent carried out that balancing exercise at the time (and it is not necessary for the Respondent to prove that it did), the tribunal carries out its own balancing exercise - based on the evidence presented at the hearing – in order to decide if the section 15(1)(b) defence succeeds.[33]If a Respondent has failed to make reasonable adjustments which could have prevented or minimised the unfavourable treatment, then it is going to be very difficult for the Respondent to show that the treatment was a proportionate means of achieving a legitimate aim.[34]The Tribunal must consider whether less severe measures might have been available and, if so, whether the Respondent has shown that the defence still succeeds despite the availability of such less severe measures.[35]Because it is a balancing exercise, and because a dismissal potentially has very severe consequences for a disabled employee, the factors necessary to persuade a tribunal that the defence succeeds in relation to a dismissal decision are likely to have to be more weighty than those which might be sufficient to justify some treatment that was short of dismissal (such as a warning, for example). See, for example, Gray v University of Portsmouth EA-2019-000891. 8 of 60[36]However, each case will turn on its own facts, and the Tribunal must take into account everything which is relevant, based on the evidence presented by the parties. The approach to the balancing exercise discussed by the Court of Appeal in Hardys & Hansons Plc v Lax [2005] EWCA Civ 84, a case based on section 19 EQA, is appropriate when considering section 15 EQA as well. The Tribunal must bear in mind that, for section 15 EQA, the thing that is in the balance is the discriminatory effect of the unfavourable treatment.[37]Section136 EQA applies to alleged contraventions of section 15 EQA. Failure to make reasonable adjustments,[38]Section 20 defines the duty. Section 21 and schedule 8 also apply. 20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A's costs of complying with the duty. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. 9 of 60 (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise. Schedule 8, Part 3, paragraph 20: Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (b) in any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[39]The expression “provision, criterion or practice” (usually shortened to “PCP”) is not expressly defined in the legislation. We have regard to the guidance given by EHRC to the effect that the expression should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, pre-requisites, qualifications or provisions.[40]The Claimant must clearly identify the alleged PCPs to which the adjustments should have been made. The tribunal must only consider those PCPs as identified. See Secretary of State for Justice v Prospere [2015] UKEAT 0412/14/3004.[41]An expectation that employees ought to behave in a certain way, and that doing otherwise would be frowned upon, can potentially be sufficient to show there is a PCP, even if the employer did not enforce the expectation by any formal sanction.[42]It is also important to distinguish between the application of a PCP and any adjustment that may be in place to ameliorate the effect of it on the Claimant. If adjustments have been made for the Claimant, that does not, in itself, prove that there was no PCP.[43]In Nottingham City Transport Ltd v Harvey UKEAT/0032/12, the EAT held that the word practice has something of the element of repetition about it, and if related to a procedure, should be applicable to others as well as the complainant. As per Ishola v Transport for London [2020] EWCA Civ 112, one off decisions made for individual employees might demonstrate that there is a PCP, provided the Tribunal is satisfied that there is sufficient evidence that the employer would take a similar approach in the future.
Findings of Fact
[44]In Onu v Akwiwu; Taiwo v Olaigbe [2016] UKSC 31, the Supreme Court pointed out that a PCP must apply to all employees, or all employees in a subset at least, and that a practice of mistreating workers specifically because of a protected characteristic, or something closely connected to the protective characteristic, 10 of 60 would not fall within the definition of PCP because it would necessarily not be applied to others.[45]When considering whether there has been a breach of s.21 we must precisely identify the nature and extent of each disadvantage to which the Claimant was allegedly subjected. Furthermore, we must consider whether there is a substantial disadvantage when the relevant alleged PCP is applied to the Claimant in comparison to when the same PCP is applied to persons who are not disabled.[46]The Claimant has the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred that the duty may have been breached. If he does then we need to identify the step or steps (if any) which the Respondent could have taken to prevent the Claimant suffering the disadvantage in question, or to reduce that disadvantage. If there appear to be such steps, then the burden is on the Respondent to show that the disadvantage could not have been eliminated or reduced by such potential adjustments or, alternatively, that the adjustment was not a reasonable one for it to have had to make.[47]The Tribunal should take into account everything that is relevant when assessing reasonableness. The EHRC Code provides some guidance and examples. The type of factors that can be looked at include, but are not limited to:• the extent to which taking the step would prevent the effect in relation to which the duty was imposed (i.e. the effectiveness of the step)• the extent to which it was practicable for the employer to take the step• the financial and other costs that would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of its activities• the extent of the employer’s financial and other resources• the availability to the employer of financial or other assistance in respect of taking the step• the nature of the employer’s activities and the size of its undertaking[48]If making a particular adjustment would increase the risk to health and safety of any person (including the disabled worker in question), this will be a relevant consideration in deciding whether it is reasonable to make that adjustment. Paragraph 6.27 of the EHRC Employment Code states that suitable and sufficient risk assessments should be used to help determine whether such risk is likely to arise.[49]Furthermore, in relation to a particular disadvantage, there is no breach of s.21 if the employer did not know and could not reasonably have been expected to know, that the PCP would place the Claimant at that disadvantage. 11 of 60[50]In Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, there had been a failure to consult with the Claimant over the steps that the employer might take. The EAT held that it will always be good practice for the employer to have discussions with the employee, and failing to do so might mean that it fails to identify a particular step that it was obliged (by what is now sections 20 and 21 EQA) to take. However, there is no separate and distinct duty on an employer to consult with a disabled worker. The only question is whether the employer has complied with its obligation to make reasonable adjustments. If the employer does what is required of it, then the fact that it failed to consult is irrelevant. Equally, if the employer fails to do what the legislation requires, it is no defence to say that it consulted the employee prior to that failure. Contravention of EQA / Dismissal[51]Section 39 EQA makes it a contravention of EQA if (amongst other things) an employer discriminates against an employee. Dismissal is expressly covered under section 39:
Findings of Fact
[52]The Claimant began to work for the Respondent in March 2023.[53]The Respondent is part of the Automobile Association group; a British Motoring Association and a public limited company. It provides car insurance, driving lessons, breakdown cover/assistance, loans, motoring advice and other services.[54]The Claimant was employed as a Recovery Patrol working from the Enfield Depot (North London) from 6 March 2023 to 24 August 2023.[55]At the job interview, the Claimant stated that he had autism. He did not say that he required any reasonable adjustments. His impact statement prepared for these proceedings is at [Bundle 43]. It describes the following effects, and our finding is that the descriptions in these extracts are accurate, both about the effects and about the fact that they are the result of his autism. Mr Lloyd-Penny’s interaction with people can be difficult. He struggles with constant change. If he feels he is not being heard then he will become distressed and angry. … Mr Lloyd-Penny needs clear instructions and regular clarification regarding this work. Mr Lloyd-Penny needs to have feedback regularly and the opportunity to ask questions. One of the issues Mr Lloyd-Penny has is that he doubts himself and his understanding of things. These need to be clarified regularly to help give him peace of mind. …[56]Prior to staring work for the Respondent, the Claimant had obtained an Autism Spectrum Condition Report [Bundle 44]. He did not supply a copy of it to the 12 of 60 Respondent during employment. He stated at his interview that he had this report and that he was willing to supply a copy of it.[57]At the start of the report, above the introduction, the report states (in bold): Diagnostic Formulation There was sufficient evidence to support a diagnosis of an Autism Spectrum Condition.[58]The Respondent has conceded disability. We have taken into account some of the comments in the report when making our decisions in this case. We have taken the report as evidence of some of the things which the Claimant said to the assessor. We have taken into account that the report does not say that it was prepared to be used in litigation (and of the fact that it was not prepared to be used in litigation). The report does not contain any of the statements that would be required from an expert witness whose report was going to be submitted and relied upon as expert evidence. The author has not been a witness. We find that the comments which the Claimant did make to the assessor are consistent with the assertions which the Claimant has made during this litigation.[59]The duties of Recovery Patrol include attending emergency breakdowns at the side of the road and recover the vehicle.[60]The Claimant had training during March, which included shadowing a worker carrying out the role, and then helping the other worker, and finally being shadowed by that other worker while he, the Claimant, carried out some shifts.[61]His line manager originally was Mr Savill against whom there are no complaints[62]Mr Savill conducted a 121 meeting, the notes of which appears at [Bundle 113]. The Claimant mentioned certain issues that he was finding difficult because of autism.[63]We have taken account of the full probation policy in the bundle. Under the heading procedure at [Bundle 99] it includes the following paragraphs5.1 Upon commencement of employment your Line Manager should typically hold a series of review meetings throughout your probationary period. Meetings may be held by phone, video conferencing or face to face.5.2 Each review meeting should review your progress against the expected standards of competence and performance as well as addressing any concerns.5.3 Review meetings should typically include discussions around; o Quality of work and work performance o Attitudes and Motivation o Conduct, timekeeping and attendance 13 of 60 o Training Needs[64]The meeting just mentioned is the only documented meeting between the Claimant and Mr Savill.[65]In May, Mr Savill informed the Claimant that he, Mr Savill, would be moving to a different role[66]There was a gap after Mr Savill had moved to that role and before Mr Townsend became the Claimant’s line manager, which was with effect from 1 June 2023.[67]Mr Townsend remained the Claimants line manager until the end of employment on 23 August 2023.[68]Mr Townsend was on leave between 11 July and 7 August 2023. Both in the gap between Mr Savill’s leaving and 1 June and also during Mr Townsend’s leave, the Claimant’s line management was conducted by Thomas Smith (who is Mr Townsend's line manager) assisted by other colleagues.[69]We will discuss some correspondence involving Mr Townsend and the Claimant in more detail in the analysis section below.[70]At [Bundle 120], there is record of a couple of meetings between the Claimant and Mr Townsend in relation to some specific issues. We will discuss the dates in more detail below; that being said the exact dates of the meetings are not crucial to our decision. We accept that the meetings did take place, notwithstanding any discrepancies in the information about the dates.[71]In addition to those meetings, Mr Townsend assisted the Claimant with the procedure for booking annual leave.[72]There are no documented probation “review meetings” until the meeting which took place on 23 August 2023 which led to the termination of the Claimant's employment.[73]Mr Townsend says that he did not feel it necessary to conduct a review at the midpoint in the Claimant's case because, as far as he was concerned, the Claimant would be passing the probation and would not either be dismissed or have probation extended at the end of the probation period.[74]During Mr Townsend’s leave, there was some correspondence about the Claimant sent to Mr Smith (some of which was also sent to Mr Townsend, though it was Mr Smith who actioned it, and Mr Townsend did not make any decisions while he was on leave). We will discuss that correspondence in the analysis below.[75]On his return from leave, Mr Townsend was one of the recipients of an email dated 12 August 2023 at 20:50 [Bundle 171]. The email started “Hi Thomas”, because it 14 of 60 was mainly intended for Mr Smith. It was from Dave Boddision, Dispatcher - Service Delivery Team, who had previously sent some correspondence to Mr Smith about the Claimant during Mr Townsend’s period of leave. Like other correspondence in the bundle relating to the Claimant’s telephone conversations, it was also sent to Jalmia Begum (Service Delivery Operations Manager).[76]At 06:17 on 13 August 2023 [Bundle 171], so about 9.5 hours after the previous email, Lyndon Tyler Service Delivery – Customer Manager, who had been cc’ed into Mr Boddison’s email, also sent some comments. What he wrote is quite important, and will be addressed further below.[77]Ms Begum emailed Mr Townsend at 10:52 the next day (14 August) asking him to ring her. We accept the following paragraph of Mr Townsend’s statement as being accurate: 29. Following this, on 14 August 2023 I spoke with Jalmia Begum (Service Delivery Operations Manage]) about this [171]. Jalmia and I discussed the events that occurred on 12 – 13 August 2023, namely the Claimant’s conduct during the calls. I confirmed that I didn’t have the software to listen to the calls at the time, so I went away from this discussion and requested access to the calls so that I could listen to them[78]The calls which Mr Townsend listened to are those described in the hearing bundle as Calls 1 to 9 [Bundle 127 – 159]. They are in chronological order, with Call 1 starting at 20:13 on 12 August 2023 and Call 9 starting at 04:44 on 13 August 2023. (There is clearly a typo with the date on [Bundle 157]). So the calls all take place within the same shift, over a period of about 8.5 hours. We will discuss the content of the calls in the analysis below.[79]At 8.40 on 16 August 2023, Ms Begum forwarded an email trail to Mr Townsend, which contained comments about the Claimant’s actions during his overnight shift for 15/16 August 2023. In particular, it was stated that the Claimant had not been updating the system accurately (to show when he was available for new work, to show when he was on a break, etc) and had not kept in voice contact with the office either.[80]Having listened to the calls, and noted the further information, Mr Townsend wrote to the Claimant to invite the Claimant to attend a meeting on the Claimant’s return from leave. The email was 17 August 2023 [Bundle 176] and the attached letter was [Bundle 177]. The meeting was scheduled for Monday 21 August 2023 at 13:30. This was to be the Claimant’s next working day, and the meeting was scheduled to start earlier than he would otherwise have started his shift. The letter was headed “Probation Review Meeting”, and the first three paragraphs read: As you know, our job offer is subject to the satisfactory completion of a probationary period. We have been reviewing your progress since you joined us back in March this year, and I would like to hold a review meeting with you. 15 of 60 The main reason for this meeting is to discuss an incident that you had whilst on SHIFT on 12th August 2023 and another on the 16th August 2023 and your current DCRS level. I also need to let you know that one potential outcome of this meeting is that your employment may be terminated.[81]The letter included details of Employee Assistance Program and of mental health first aiders. The Claimant also informed that he could be accompanied by a union representative or a work colleague. It gave no additional information, other than that quoted above, about the “incidents” on 12 or 16 August.[82]At 16:49 on 21 August, the Claimant emailed Mr Townsend, stating as follows [Bundle 179]. The reference to “Ricky” is to Mr Savill. This email came to me during my time off. As you know, I do not read work emails during my personal time as I need to unwind and decompress. It is by luck that I have looked now as my shift doesn't start until 6:30pm. Even so, this notice is less than a few hours which most definitely does not seem a fair way to do business. Further to this, as you are aware I have an autism diagnosis and things being sprung on me that are outside of my usual routine cause me severe anxiety. Indeed, my wife is having to type this message as I am developing a severe migraine. As my diagnosis has not been taken into account since Ricky took a new role I will need to consult with HR to agree some firm adjustments to reduce the stress I am suffering. I have copied them in for this purpose. As the time for the meeting is now past, please let me know how to proceed.[83]Mr Townsend replied at 17:24 (so before the Claimant’s shift was due to start) stating: Thank you for your email. I can advise that I have spoken with employee relations regarding this matter and the probation review meeting will need to go ahead to discuss the matters raised before you can return to work on the road. I have now re-scheduled the Probation Review Meeting for Wednesday 23rd August, PFA the invite letter. I have also updated your Roster and placed you on Special Duties for your SHIFT for tomorrow and for that day so you don’t need to attend the yard and go out in the truck for this day. I have sent you over another invite to the Meeting Via Microsoft Teams please use the link to join the meeting, if you have any issues trying to join or any concerns then please give me a call.[84]As he said in the email, Mr Townsend updated the letter [Bundle 182-183]. Other than the meeting time, the letter was the same as the earlier one. 16 of 60[85]As per the emails from [Bundle 199 to 200] and [Bundle 202 to 205], we are satisfied that the Claimant did lodge a grievance in advance of the meeting. We are also satisfied that Mr Townsend was not informed of this.85.1 The Claimant’s wife wrote on his behalf at 9.49 on 23 August, so more than 6 hours before the meeting was due to start.85.2 At 17:13 (so about 75 minutes before the meeting was due to start), Human Resources (to whom the email had been sent) replied to say that the subject matter could not be discussed with her, Mrs Lloyd-Penny, and that the Claimant would have to raise it himself. The (short) email concluded: We have several internal reporting processes available for him to use if he does not feel able to raise this directly with his own line management.85.3 Mrs Lloyd-Penny forwarded that email to the Claimant, and, at 5.22pm (so within 10 minutes, of the HR officer’s email), he wrote to the HR officer, forwarding the entire email chain (so including his wife’s 9.49 email) and stated: Please see my wife's comments below. If there is a process which I need to follow can you explain it to me as I find these things difficult to navigate.85.4 We are satisfied that that is clear enough that the Claimant was adopting his wife’s comments and was intending his email to be doing what HR had suggested, and was raising “these issues” himself. Similarly, regardless of whether the Claimant was aware of any “grievance” policy (or any other “internal reporting process”), it is clear that he wished the Respondent to treat the matter formally.85.5 The grievance contained little by way of specific detail, but it referred to the Claimant’s autism and alleged that the Claimant was receiving little support. While names were not mentioned in the email, the suggestion is that the Claimant got excellent support from Mr Savill, but was not supported by Mr Townsend.[86]We accept Mr Townsend’s word on oath that HR did not inform him about the grievance before the Probation Review Meeting, and it is common ground that neither the Claimant, nor Mr Wood, nor Mrs Lloyd-Penny informed him. As we have noted, the Claimant’s email to Mr Townsend on 21 August 2023 did alert Mr Townsend to the fact that the Claimant would be contacting HR.86.1 We have no written communications between Mr Townsend and HR in the bundle, and no-one from HR has given evidence. 17 of 6086.2 Seemingly, then, Mr Townsend did not forward the Claimant’s email to HR (which is consistent with Mr Townsend’s email stating that he had “spoken” to employee relations).86.3 However, we have no way of knowing whether the Respondent’s HR team deliberately decided that they would not inform Mr Townsend about the grievance or whether there is a different reason for Mr Townsend not being made aware of it.[87]The meeting did proceed. The Respondent’s notes are [Bundle 188 to 196]. They are sufficiently accurate for us to be able to assess what discussions took place during the meeting, albeit they are not (and do not purport to be) a verbatim record.87.1 The Claimant was accompanied by a union representative, Thomas Wood.87.2 The meeting started at 18:32.87.3 There was a break from 18:49 to 18:58 at Mr Wood’s request.87.4 There was a break from 19:11 to 19:24 at Mr Townsend’s suggestion.87.5 There was a break starting at 19:53 for Mr Townsend to make his decision. He stated that the break would be until 20:25 (so slightly more than half an hour).[88]During the meeting, none of the calls were played to the Claimant. Shortly before the second break, there was this exchange (the underlining is ours): MT This is just one of a couple of incidents that have been highlighted to me now with you being aggressive towards the indoor team. Have you been aggressive towards any staff Adrian? ALP NO MT I received a complaint and have listened to the call containing the task above where you are being aggressive towards members of staff? ALP I am being firm and concise, I have autism, I have apologised for tone, if you listened to the call you would have heard the apology.[89]So Mr Townsend referred to a call (singular according to the transcript, without specifying which of the 9 calls he had in mind (and, during the meeting, Mr Townsend did not state that he had listened to 9 calls). The Claimant, who had not been provided with copies of any of the 9 calls (which were from 10 or 11 days earlier), seemingly thought he knew which call (singular) Mr Townsend was referring to, and stated that it contained an apology. Our finding is that the Claimant did make an apology, and it was in the call that he had with Mr Tyler, referred to on [Bundle 171], which we discuss it in the analysis below. Mr 18 of 60 Townsend did not ask the Claimant for any details of what he, the Claimant, was referring to when he said “apology”.[90]For the second break, Mr Townsend states in his witness statement: I tried to recall the events of the shift with the Claimant, at which point I was met with what I perceived to be outbursts of aggression from the Claimant, at which point I adjourned the meeting to allow the Claimant to collect himself and calm down, and so that he could speak with his union rep. This demonstrated to me again how the Claimant was acting towards members of staff, and I took this into account when considering the duty of care we owe other members of staff and our customers, and I considered how this could place the reputation of the company at risk.[91]What the meeting notes describe is this: MT: Do you recall an incident with the indoor team where you advised the call handler that if you could see the dispatcher and night manager on that evening that you would go up there and drop them from the top story window onto their heads? ALP: They had flared up my autism, they had ignited it, I needed to walk away from it, I don’t deny saying that, excuse are you trying to trigger my autism, you’re asking the question and not understanding the answer, they made me that angry I said those thing that I said on the phone, I spoke with Lyndon and asked him to make an apology, do you not hear yourself , you’re not listening, you are trying to trigger me, I can’t control my autism, I can’t control myself can you when you are angry. You are asking questions to me that are being discriminatory. MT: I can thank you, I am not being discriminatory, I have to ask these questions, think we should take a break for [Mr Wood] to advise why I ask these questions.[92]The “incident with the indoor team” which Mr Townsend was referring to there was within Call 9. Within Call 9, the Claimant had made the following comments to the call handler, Aaron. The “manager” was Mr Tyler and the “dispatcher” was Mr Boddison, and we discuss Call 9, and Aaron’s, Mr Tyler’s and Mr Boddison’s views about it in the analysis below: And it's gonna take me at least 2 hours if not 2 and a half hours to get home or to get to the depot anyway. Aaahh, I hope to god I never meet the manager that I was dealing with or the dispatcher that give me this job. AND Cos I'll drop them from a third storey bloody window, the pair of them on their heads.[93]Within the meeting, as well as questions about the 12/13 August shift, there were questions about whether the Claimant had properly recorded a break on the Respondent’s systems and the tacho on the 15 August shift. The Claimant denied breaking the law forbidding driving while on a break, and denied any attempt to mislead the employer about his break time. Within the meeting, there was a 19 of 60 discussion about the use of(i) the tacho and(ii) the Respondent’s own systems for recording the driver’s activities, including breaks, etc. Within the meeting (and again within the tribunal hearing), the Claimant argued, in effect, that the tacho records would accurately show that he had taken the breaks as required by law, and that if there were discrepancies between that and the Respondent’s own systems, then it was because of innocent mistakes and/or not knowing what correct input to the system he was supposed to have made.[94]There was also the following exchange: MT: I have seen from speaking to the office that this isn’t the only time this has occurred to? And that you have refused to work within London? Why is this? ALP: I cannot deal with central, triggers my anxiety I have tried, it ends up freaking me out MT: What is the problem with working in London? ALP: Crowds being within that environment, I can trigger and have accidents and near misses I want to avoid. MT: You do understand that the position that you applied for within the AA was a recovery Patrol in North London depot? So this is really where I need you to be working if there is work within this area and the City is a high workload area. ALP: I have tried to do so, I am trying to maintain my composure[95]The final exchanges just before the third break were as follows: MT: Explains no 1:1 at this period, transport manager only. Talks about maybe not had a great start with leave booking and cant talk about what happened before. ALP: Wait for cpm approval and holiday, also I wasn’t aware I Had done anything wrong; I hold my hands up and sincerely apologise for any wrongdoing. I am doing my best and have tools to deal with my autism. MT: I will now adjourn the meeting for 00 minutes please leave the meeting and rejoin using the same link at 00:00, thank you. TW: I take it Adrian is a valid person on the team and I thought there was an issue with not having enough 1:1 however due to paternity, obviously Ricky was the previous Pl so I don’t know how many 1:1s were held, MT answer uncertain. It goes that on probation process that patrols in the early period they have frequent 1:1s. What I think is the most [serious] matter is Adrian’s autism, it flare up easily as we can see in this meeting, he has apologised, had he understood the return from break on g1 and taking break on G1, think we need to understand this more and give time, is there anything that we can provide to help [OH] or our Doctor, is there something we can do to help him we are the AA and after all we should be helping Adrian. ALP: Lyndon called me that night 20 of 60[96]During that third break, Mr Townsend spoke to Mr Smith and to Paul Parker from Human Resources, an Employee Relations Specialist. We accept that what Mr Townsend said after the third break (at 20:26) is reasonably accurately stated in the notes, which read: I have fully taken into account everything that you have both said especially during the end of the meeting but unfortunately in the role we play within the AA is that of a customer facing one I cannot risk an incident like the one recorded happening again threats of violence and speaking to anyone in that manner is not acceptable so I have made the decision to end your probation today. You will be paid for your SHIFT in full today and I will look to arrange a suitable time with yourself to meet at the Enfield Depot and collect the AA items issued from yourself including iPhone, Dongle fuel card and gate key if in your possession. Apologises its come to this.[97]The following day, at 9.36am, Mr Townsend sent an email [Bundle 185] attaching the meeting notes and an outcome letter [Bundle 186]. The relevant parts of the letter stated: Re: Unsuccessful Probationary Period – Termination of Employment You attended probationary review meetings yesterday 23rd August 2023 during which you were informed that you had not reached the required standard for which you were employed due to concerns with your behaviour. At the Probationary hearing held 23rd August 2023, it was agreed that your Behaviour was seen as unsatisfactory, and you were notified that you had unfortunately failed your probationary period. Consequently, your contract of employment in the role of RO Patrol will be terminated with effect from 24th August 2023. … I am sorry that we have had to take this decision and I do hope that you find a more appropriate job in the near future. My decision is final and there is no right to appeal.[98]In Mr Townsend’s witness statement, he goes into more detail than is stated in the hearing notes, or the outcome letter, about the matters which he says he took into consideration, and about the specific thought processes which he says led to his decision.98.1 Within paragraph 35 of his statement, he says: No one should be coming into work at risk of being shouted and sworn at, and it’s incredibly inappropriate to call colleagues names or make comments about physical harm, even if the comments were meant in jest. 21 of 6098.2 Within the same paragraph, he also comments that the Claimant was in a customer facing role, and that a safe environment for customer’s and the AA’s reputation were relevant factors.[99]Following the termination, the Claimant’s wife wrote again to the same HR officer that she and the Claimant had corresponded with about the grievance prior to the dismissal meeting (Donna Crawford). She received a reply from Mr Parker; the reply included the comment that there was no right of appeal against the decision [Bundle 203 to 202]. Following Mr Parker’s reply, she wrote again to Mr Parker, including asking about why the Probation Review Meeting had not been put on hold because of the grievance, and commenting that the termination was disability discrimination. The Respondent did not reply to either of those observations. Analysis and conclusions[100]We do not need to make any decisions in relation to paragraphs 3.1, 3.2 and 3.3 of the list of issues.[101]The list of issues included: 3.4 Did the following thing(s) arise in consequence of the Claimant’s disability: 3.4.1 In certain circumstances the Claimant found it difficult to process certain information which could trigger a “meltdown” during which he would raise his voice.[102]Then, in paragraph 3.4.2 (quoted in full in the “Claims and Issues” section above), the Claimant listed some examples of situations which, on his case, could trigger a meltdown.[103]We are satisfied that the things mentioned in paragraph 3.4 of the list of issues did arise in consequence of disability. Specifically, because of his disability, the Claimant found the situations listed in paragraph 3.4.2 to be more frustrating than someone without his disability might find them. Furthermore, because of his disability, the Claimant had a tendency to raise his voice when frustrated.[104]The Claimant did find it difficult to process certain information, and this could cause what has been loosely described in paragraph 3.4.1 as a “meltdown”. We are not seeking to use the word “meltdown” in any technical sense, but the effect on the Claimant of his struggle to process certain information included that he would raise his voice.[105]In other words, the matters mentioned at paragraphs 3.4.2.1 to 3.4.2.3 are not selfcontained and separate “something[s] arising” in consequence of the Claimant’s disability, but are part of the explanation for how, while at work, his disability might 22 of 60 affect his ability to process information, and how in turn, because of his disability, that might cause him to raise his voice. 3.5 Did the Respondent treat the Claimant unfavourably as follows:[106]As per Risby and Pnaiser, the mere fact that there are several steps in the chain of causation between the disability, the something arising, and the treatment, does not necessarily prevent a finding that the treatment was caused by the “something arising”. There are 5 examples of treatment specified. Our analysis is as follows: 3.5.1 Not being provided with support from his manager, Mr Michael Townsend.[107]In relation to paragraph 3.5.1 of the list of issues, as discussed in the findings of fact, there is a dispute about a date of a meeting.107.1 Mr Townsend became the Claimant's performance lead with effect from 1 June.107.2 He was absent on paternity leave and between around 11 July and 7 August 2023 (paragraph 13 his witness statement).107.3 Between 1 June and around 10 July there were interactions between the Claimant and Mr Townsend that were not documented enough in formal meeting notes, but they did take place.107.4 In terms of those documented, our interpretation of the document on [Bundle 120 is that it was on 13 June 2023 that Mr Townsend had a “compliance awareness” discussion with the Claimant in which he went through tacho use with the Claimant in detail.107.5 Our assessment is that Mr Townsend has made an honest mistake, and that, on balance of probabilities, the meeting was not on 14 April. We think it more likely that the Claimant would accurately remember that he had not met Mr Townsend before Mr Townsend became his line manager, than that Mr Townsend could be sure that the meeting about tacho use was definitely while Mr Savill was the Claimant’s line manager. The Claimant has only one line manager (at a time) whereas Mr Townsend manages several staff.107.6 Furthermore, we think that our interpretation that the “date” column is when the matter was first raised (as a task that was necessary) and the “completed” column is when the task was performed is consistent with the second (and only other row) in the table. The second row has 28 June in the “date” column and 8 August in the “completed” column. Since the notes refer to things that happened on 5 July, that task cannot have been completed on 28 June. 23 of 60107.7 So, at the very least, the document is not reliable corroboration that Mr Townsend “Went through Tacho use with Adrian in detail showing what he did and what should be done to prevent this from happening in the future” on exactly 14 April 2023. Even if it does not fully confirm that the meeting was on 13 June (and 13 June is simply the date of entry of the notes), we think it more likely that the meeting took place in June, after Mr Townsend became line manager, and on or (not long) before 13 June.[108]Regardless of the exact dates of the two interactions shown on [Bundle 120], we do accept that the discussions had did take place, Mr Townsend did provide some feedback to the Claimant and he also assisted the Claimant with out showing him how to book holiday.[109]Thus it would not be true to say that “no” support was provided. Some support was provided by Mr Townsend.[110]On the facts, it has not been proven that there was some specific support that was provided to other employees that was not provided to the Claimant.[111]On the facts, it has not been proven that there was some specific support that was provided to others that, because of the “something arising” was not provided to the Claimant.[112]Put another way, there are no facts from which we could conclude (taking into account the very general way in which the factual allegation is worded) that, because of something arising in consequence of the Claimant's disability, Mr Townsend treated the Claimant unfavourably by providing him with less support than Mr Townsend would otherwise have given.[113]Therefore, the allegation that the act/omission in paragraph3.5.1 of the list of and is dismissed.3.5.2 Not checking on the Claimant’s mental health.[114]In relation to checking on the Claimant's mental health, it is our finding that the Claimant did raise issues of feeling anxious and stressed. He mentioned issues about mental health that were more than simply informing Mr Townsend or the employer that he had autism (which he also did).[115]For example, on 19 May 2023, [Bundle 119] he sent an email to Thomas Smith at 18:50. That email makes clear that the Claimant is describing stress and anxiety. The stress and anxiety mentioned is connected to the autism (at least in the Claimant’s opinion, and for the reasons he supplied in the email), but is separate to it. 24 of 60[116]He received a reply dated 22 May [Bundle 119] which gained significance during the hearing which was not flagged up by Mr Townsend’s written statement, or by the Respondent’s Grounds of Resistance. The email read: Morning Adrian, Thank you for reaching out and of course we will support you as much as possible. @Bevan, Dave when you get a moment could you catch up with Adrian please he needs a bit of extra support and coaching. Asking for help, doesn’t alienate you at all! We are here to help Please see below my signature for well being support as and when you need it. Keep safe, Regards, Thomas Smith, Customer Performance Manager[117]It has not been proven that the Respondent took any specific steps to do things that might be called “checking on the Claimant's mental health”. However, we do accept that Mr Townsend was in contact with the Claimant (from 1 June onwards, and not during his leave period) and he was able to, and did, have discussions with the Claimant. Prior to 1 June (in the period after Mr Savill had ceased to be the Claimant’s manager, and during Mr Townsend’s leave period), the Claimant was aware that he could contact Mr Smith (as the exchange on [Bundle 119] demonstrates).[118]The allegation in paragraph 3.5.2 is very vague. For example, it is not clear whether the Claimant is suggesting(i) that some specific words should have been used to enquire about his mental health and/or(ii) that that would have been sufficient.[119]In any event, for each of paragraphs3.5.1 and3.5.2 even to the extent that more support could hypothetically have been provided by Mr Townsend, or even to the extent that the Respondent could hypothetically have done more to proactively make checks on the Claimant's mental health, there are no facts from which we could conclude that the failure to do more was because of the matters listed in paragraph 3.4 as things arising in consequence of the Claimant's disability.[120]Therefore, the allegation that the act/omission in paragraph 3.5.2 of the list of 3.5.3 Not making the claimant aware of the possibility of a referral to Occupational Health prior to 17 August 2023.[121]In relation to paragraph 3.5.3, there is a dispute between the parties. 25 of 60[122]The grounds of resistance accepted that it was factually accurate that the Claimant had not been made aware about occupational health referrals until 17 August.[123]In cross-examination, Mr Townsend disputed that, and pointed to the email on 22 May [Bundle 119] which we have quoted above. In that email, below Mr Smith’s signature was his mobile phone number, his email address, and the Respondent’s website address. Below that was a graphic image. Below (or as part of) the image, there were three bullet points:• To find a Mental Health First Aider to speak to, click here• To use our Employee Assistance Programme. You can call them 24/7/365 on 0800 269 616 or click here to access EAP support online• For more information and advice on wellbeing, click here for ‘My Wellbeing’[124]Mr Townsend alleged that this email informed the Claimant to look at the graphics below Mr Smith's signature and to click on (one or more of) those three links. Mr Townsend’s oral evidence was that clicking on those links would have enabled the Claimant to find sources of information about occupational health referral including the ability to self refer to occupational health.[125]It has not been proven to us what specific information an employee could have been gained by clicking on those links.[126]Mr Smith has not given evidence, and so we do not know why he worded the email in the way that he did. We do not know why (if he did mean it the way that Mr Townsend suggested in oral evidence, though not in his written statement) he could not have expressly said, in the body of the email either(i) “click here to find out about occupational health assessment” and/or(ii) “do you want an occupational health assessment?”[127]We are required to make a decision about whether to allow the Respondent to amend the Grounds of Resistance to withdraw the concession. We have taken into account the balance of injustice and hardship.127.1 The application was made very late, after the Claimant’s evidence had finished. The panel therefore did not have the chance to ask the Claimant questions on oath about the suggestion that Mr Smith’s email gave sufficient information about the possibility of an OH referral.127.2 The point came out during Mr Townsend’s evidence, and so the Claimant did have some opportunity to ask questions about the assertion (as did the panel). Although, of course, without the Respondent having supplied the Claimant with documents to support the assertion about what the clicking on the link led to, the Claimant (and Mrs Lloyd-Penny, who was cross-examining 26 of 60 on the Claimant’s behalf) did not have any material before them with which to explore the assertion that the links led to information about OH referrals.127.3 We have not had a clear explanation about why the Respondent’s representatives made the concession in Grounds of Resistance, or about why this point was not in Mr Townsend’s written statement.127.4 In all the circumstances, however, our decision was that the interests of justice required us to allow the Respondent to withdraw the concession, and for us to assess Mr Townsend’s evidence on its merits.[128]Our interpretation of the 22 May email is that it makes no reference to the possibility of an occupational health referral. Our assessment is that the comments about looking below the signature are ambiguous. As we have said, below Mr Smith's signature is both his email address and the AA’s general website address. Our assessment is that it would have been very easy for anybody to interpret what was said in the body of the email as meaning to contact Mr Smith by phone or email, and/or simply to click the website link to look generally on the (public, customerfacing) website for further information.[129]So the factual allegation that the Respondent failed to make the Claimant aware of the possibility of a referral to Occupational Health prior to 17 August 2023 has been proven (on the balance of probabilities) by the Claimant. [17 August is the communications about the Probation Review meeting; we do accept that, orally by phone, Mr Tyler had given the Claimant some information about the Employee Assistance Program on 13 August 2023].[130]However, we are satisfied that the cause of the Respondent failing to do more than it did to clearly and expressly inform the Claimant about the possibility of an occupational health referral was not something that was because of the matters set out in paragraph 3.4 of the list of issues. In other words, it was not because of something arising in consequence of the Claimant's disability.[131]Therefore, the allegation that the act/omission in paragraph 3.5.3 of the list of 3.5.4 In or around June 2023 an elderly man in PSU (Control Centre) told the claimant he was notorious within the department and they knew all about him.[132]In terms of item 3.5.4, it was clarified by the Claimant during the course of this hearing that what he actually intended to refer to is what was called “Call 11” during the hearing.132.1 It was one of the calls that the Respondent asked us to listen to during our pre-reading. 27 of 60132.2 It is the call for which the transcript is at [Bundle 161].132.3 It was between the Claimant and somebody called Brian at 2300 on 13 August 2023.[133]It is not factually accurate that Brian said that the Claimant was “notorious” and it is not factually accurate that Brian said that “they”, PSU (Control Centre), knew all about the Claimant.[134]The Respondent suggested that the discrepancy between what is in the list of issues and the date of, and content of, Call 11 means that the claim should fail on the basis that the Claimant has not proven (or addressed) the specific factual allegations in the list of issues. We do not agree. We will deal with it on the merits. The Claimant certainly should have applied to amend the list of issues once he had received the transcripts. However, we take into account that the Claimant is litigant in person and that neither he nor his wife properly understood the need to do so. It is certainly a relevant factor that the Claimant has not addressed/clarified paragraph 3.5.4 of the list of issues in his witness statement. As against that, Mr Townsend commented on it in his own witness statement. Further, when we asked the Respondent’s counsel on Day 1 why we needed to listen to Call 11 if (as Mr Townsend said) it was not something that he took into account when dismissing the Claimant, we were told that the Respondent wished to rely on the contents of the call as supporting the argument that dismissal was a proportionate means of pursuing a legitimate aim. In those circumstances, the Respondent and its witness and its representative are familiar with the contents of the transcript, and are not disadvantaged by having to deal with allegation 3.5.4 (as clarified) on its merits.[135]We have compared the transcript to the audio recording, and they match.[136]One comment made by Brian is at the bottom of [Bundle 164]. A few moments earlier, the Claimant had said “You don’t know me” and Brian’s reply had included “I do know you”. After some back and forth (which we take fully into account, but do not need to transcribe here), it culminated in the Claimant saying “How would you know me?” and Brian replying: Because I work in an office that people talk to each other about things. So I do know you as a…[137]The audio matches the transcript. Brian stopped speaking. We listened carefully, and it is not the case that (for example) the Claimant spoke more loudly, and at the same time as Brian. So it is not the case that Brian finished the sentence, even in a way which was not decipherable. The audio evidence is that he simply did not continue, and therefore we do not know what he might have potentially said after the word “a”. 28 of 60[138]After the Claimant had again said “You don’t know me”, Brian started a new sentence, by saying: Yeah but I know of you and I know you've got anxiety problems and everything and I understand all that because I said you didn't know me and you didn’t know what I've done. [xxx] is exactly the same as you and I'm trying to help you.[139]As the call continued, Brian referred to someone he knew well who was autistic, and who also had some other conditions, the effects of which he described to the Claimant.[140]It is not necessary to quote the whole conversation (though we listened to it more than once, and paid attention to, amongst other things, the volume of the Claimant’s voice, and the number of times either interrupted the other). The following short extract is a good example of how the conversation continued after the exchange mentioned above: Brian: I know exactly where you're coming from mate and that's why I'm trying to help you but you know, I know you say you're not shouting and it's because of your situation and I totally understand that. But you it's hard to talk to somebody sometimes over the phone when you are raising your voice and I could understand. Claimant: I'm not raising my voice, I'm being clear and concise. Brian: Yeah, no, at the same time you do raise your voice but you don’t mean to. You're not being offensive or anything and I'm not taking it that way. I am just trying to help you Adrian, alright. Claimant: Well I can't do my job if this damn sat nav isn’t doing its job. Brian: Yeah and I understand that as well because we have sat navs … fantastic system and as I was trying to say earlier it doesn’t know about all the roadworks, it doesn’t know about the roadworks that have just been put up. I'm driving today and I have that problem as well, everybody does but…[141]During the call, Brian states that he knows that the Claimant has anxiety problems. He says he understands the problems that can give someone. He also talks about driving in London, and says why he understands (in agreement with the Claimant) that there are differences between doing recovery work in that part of the country and elsewhere. He mentions having worked for the Respondent for more than 30 years.[142]As per the final few exchanges between them, the call ends on amicable terms.[143]It is speculation as to exactly what Brian knew about the Claimant and exactly what he did not know about the Claimant. It is speculation to some extent about the exact sources of his knowledge about the Claimant. There is enough evidence to infer, and we do infer, that at least one source of his knowledge was conversations with other call handlers in the call centre. 29 of 60[144]In terms of the Claimant having autism, the evidence does not necessarily show that Brian knew that the Claimant had autism from comments made to him by other call handlers. During the call, the Claimant mentioned that he was autistic several times before Brian said that he knew that the Claimant was autistic.[145]In terms of Brian saying (as quoted above) that he knew that the Claimant had anxiety problems, that is not something that the Claimant had expressly stated during this call. Since Brian has not given evidence (or, as far as we know, been asked questions as part of any disciplinary, or probation, or grievance investigation) there is no direct evidence about whether:145.1 it was an inference which Brian drew both from the Claimant's tone of voice, and/or the contents of the telephone conversation more generally;145.2 it was an inference which Brian drew from Brian's general knowledge about people with autism; or145.3 whether he knew about the Claimant's anxiety problems because of something he had been told by someone else (a fellow call handler, for example).[146]Apart from Brian’s own words to the Claimant (bottom of [Bundle 164], as quoted above), our finding that Brian had received some information about the Claimant from other call handlers is consistent with other documents in the bundle, which also tend to show that there had been discussions about the Claimant.146.1 Indeed, it is part of the evidence that the Respondent relies on to justify some of the treatment.146.2 For example, we quoted Dave Boddison’s email of 20:50 on 12 August 2023 [Bundle 171] above. This was just over 24 hours prior to Call 11, with Brian. When Mr Boddison invited Mr Smith to listen to a particular call, he stated the nature of the Claimant’s calls was “a regular occurrence”. That was not a call to Mr Boddison (it was a call to Safyaan, Call 2, which we discuss below). For Mr Boddison to be aware of Call 2, and for him to form the opinion that the Claimant’s behaviour in it was “a regular occurrence”, there must have been some conversations within the team.[147]Our finding is that not only did Brian not say that the Claimant was “notorious”, he did not imply it either. He merely communicated that he was aware that the Claimant had contacted the call centre previously, and implied that it seemed that the Claimant’s call on this occasion might be for similar reasons to some of the earlier calls.[148]Our finding is also that Brian did not state that or imply that PSU (or everyone in PSU) “knew all about” the Claimant. What Brian attempted to make clear was that 30 of 60 he, Brian, believed that he had some knowledge or understanding of autism and of anxiety issues, and of the possibility of someone with a disability (he did not use that specific word) becoming frustrated and/or raising their voice. Whether Brian was right or wrong that he understood the Claimant’s situation is not the point. He was not purporting to comment on what his colleagues might know (or think they knew) about the Claimant; he was expressing his own personal opinion, for which he gave detailed reasons to the Claimant in the call.[149]Thus the specific factual allegations in paragraph 3.5.4 of the list of issues are not made out.[150]Taking the call as a whole, and even taking account of the burden of proof provisions in section 136, we are not persuaded that Brian’s comment about working in an office where people talk about the content of work-related telephone calls was treating the Claimant unfavourably.150.1 The full context of the conversation has to be taken into account. At the start, there were back-and-forth exchanges which could potentially be described as an argument.150.2 Each of them made comments to the effect that the other person did not know them. Each of them suggested that the other person was interrupting them, and not giving them a chance to explain.150.3 Each of them was disputing that the other had relevant knowledge about the other person's circumstances, and, in effect, implying that the other person should be quiet while they supplied more information that they thought the other person lacked, and needed to have.150.4 It is clear to us that the proper context of the remark which Brian made was that he was seeking to persuade the Claimant that he, Brian, was seeking to dispute the Claimant's assertion that he, Brian, had insufficient knowledge about the full set of circumstances (and the Claimant’s suggestion that Brian had insufficient information to conclude that the Claimant would be able to complete the job he had been allocated, and still finish his shift on time).150.5 Brian wished to try to make clear that he did have knowledge about driving conditions in London and he did have knowledge about how the Respondent's satellite navigation system had not always been fully updated (in relation to temporary road closures are bought in particular). He also wanted the Claimant to know that he had (or, at least, believed that he had) some knowledge or awareness of the Claimant's situation, including the fact that the Claimant had autism.[151]We are fully satisfied that Brian was seeking to assist the Claimant, and was seeking to make it clear to the Claimant that that was his intention. The fact that 31 of 60 Brian had a benign motive does not, in itself, mean that the treatment was not unfavourable. However, we are satisfied that, by the end of the conversation, the Claimant had realised that that had Brian’s intention had been to try to convey to the Claimant that he, Brian, did understand the situation. The Claimant realised that Brian had not been seeking to put him down or insult him.[152]Furthermore, the Claimant mentioned his autism in many of the communications we have seen in the bundle. It would be inconsistent with his case for him to suggest that the call handlers ought not to have been aware of his autism (and he has not suggested that). The mere fact alone that call handlers had discussed the Claimant is not the allegation. In the circumstances, implying to the Claimant that the call handlers had discussed him amongst themselves was not, in our judgment, treating the Claimant unfavourably. In other words, to the extent that the Claimant regarded it as a disadvantage to him that the call handlers had spoken between themselves about calls he had made to them, and/or a disadvantage to him that Brian told him that the call handlers had spoken between themselves about calls he had made to them, it was an “unjustified sense of grievance” (to borrow the phrase from Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87, as approved by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11), to describe something which would not be sufficient to amount to a “detriment”).[153]It seems to be factually accurate that Brian did have some knowledge of the Claimant's situation; simply making the comment that he had some knowledge of the Claimant's situation was not implying that the Claimant had done anything wrong or that he was notorious. It was a comment that Brian did not necessarily have to make in order to deal with the telephone call, but the mere fact alone that the comment was not strictly necessary does not convert the comment to treating the Claimant unfavourably (given our decisions above about Brian’s intentions, and given the way in which the call continued).[154]Therefore, the allegation that the act/omission in paragraph 3.5.4 of the list of[155]In terms of item 3.5.5 and will return to this after we have addressed the reasonable adjustments complaints. There is no dispute that the Respondent did dismiss the Claimant.[156]The list of issues includes: 3.10 Did the respondent have the following PCP(s): 3.10.1 A system whereby despatch could change jobs at short notice?[157]The Respondent accepts that it did have the PCP identified at paragraph 3.10.1. 32 of 60[158]Our finding is that the Respondent had a system which could lead to a change in jobs at short notice. On the Respondent's account, which we accept, the allocation of work to Recovery Patrol workers, and other employees involved in providing roadside assistance, was largely automated and driven by AI. In other words:158.1 The computer software had, and used, data about all of the jobs that customers were waiting for, and data based on the information that the Recovery Patrols entered about their own whereabouts and availability.158.2 The software was programmed to take into account all the factors that the Respondent considered relevant about the urgency of each job and the priority it should have.158.3 Based on that data and programming, the computer assigned particular jobs to particular a Recovery Patrol worker.[159]Once the computer assigned a job to a particular Recovery Patrol, the worker was notified, in their vehicle, about the job.159.1 The notification was automatic, not sent by a human. It was then the Recovery Patrol driver’s job to drive to the location that they had been given. In the first instance, the location was supplied in approximate terms.159.2 Once they got close to the location - approximately 10 minutes or so away – the Recovery Patrol would be “locked on” to the job. Being “locked on” meant that the job would not, from this point forward, be reassigned to a different Recovery Patrol. At this point, the Recovery Patrol would receive the customer's phone number and it was their responsibility to telephone the customer, give an expected time of arrival and finalise the meeting arrangements with the customer.[160]However, prior to a Recovery Patrol being “locked on” to a particular job, the computer could reassign any job from one driver to another. The reason that a particular Recovery Patrol became unassigned from a particular job was not always that it had been reassigned to another Recovery Patrol. For example, if the job was no longer required, then no Recovery Patrol would do it (and this could occur either before or after the Recovery Patrol had been “locked on” to a particular job). However, reallocation of a job from one Recovery Patrol to another could happen for a variety of reasons; the reallocation was performed by the computer software automatically (that is, without any of the Respondent’s human employees making the decision), and it was the Respondent’s intention and aspiration that the software was always able to plan the entirety of the work needed, and take into account all of the resources available, and allocate Recovery Patrols, in the way that made the most efficient use of resources. 33 of 60[161]We accept the evidence of the Claimant and his witness that there were times when the job to which a Recovery Patrol was assigned changed frequently within a short period of time. There were also occasions when Recovery Patrol might be allocated to a job that was a considerable distance away from their location when they received the notification; they might then drive for quite a long time in the direction of the job, only to be unassigned from it, and be assigned instead to a different job, which required them to drive a long distance back along exactly the same stretch of road that they had just driven.[162]It was possible - in at least some circumstances - for there to be a manual override. The dispatchers had the ability to “lock on” a particular driver to a particular job earlier than the automated system would otherwise do it.162.1 We make this finding of fact, based on what the Claimant was told during Call 2 and based on the fact that the Respondent has failed to call any witness to specifically outline to what extent human intervention with the job allocation was, or was not, possible.162.2 We have not received any information or evidence about whether other manual arrival overrides would be possible. That is, we know (assuming that what the Claimant was told was truthful and accurate) that once the software had allocated a job to a particular Recovery Patrol, there could be a manual over-ride to lock the driver on to that job. However, we have not heard whether the Respondent believes it would be possible or impossible for there to be a manual override to reassign a particular task from one specific Recovery Patrol to another specific Recovery Patrol, for example.162.3 We have heard, and we accept, that the software was sophisticated enough to know which type of vehicle the Respondent’s drivers were in, and what type of job that vehicle was suited to. We were not supplied with any specific evidence about the extent to which the software could, or could not, receive data about (and/or take into account) any reasonable adjustments that had been agreed for any particular employees. 3.11 Did any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that: 3.11.1 In the circumstance set out above, it could cause the claimant to have a meltdown. Paragraph 3.11.1 refers back to paragraph 3.4.[164]We accept that the Claimant was at a substantial disadvantage because of the PCP in comparison to persons who were not disabled. Compared to people who did not have his disability, the Claimant found it difficult to understand why the job 34 of 60 to which he was allocated changed so frequently and/or why he had been unassigned from a job, after he had spent a long time travelling to it, and not long before his estimated time of arrival. Because the Claimant (on account of his disability) found it difficult to understand these things, that caused him(i) to contact the service centre and(ii) to demand an explanation and(iii) to raise his voice in the course of doing so. 3.12 If so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be placed at any such disadvantage?[165]In terms of the Respondent actually being aware that the Claimant's autism was causing him to be disadvantaged by the PCP, our decision is that the Respondent was actually aware of this by no later than 12 August when the Claimant made clear that that this was his opinion. As per [Bundle 130], he made this clear – at the very latest – near the start of Call 2, so around 20:25 on 12 August 2023.[166]During Call 2, the Claimant stated that he required a clear explanation of the changes. Regardless of whether the opinion of the Respondent, or the opinion of any of the Respondent’s employees, was that the Claimant had been given an accurate explanation (either before Call 2, or during Call 2, or otherwise), the fact is that the Claimant clearly communicated that (in his own opinion, at least his autism was causing the disadvantage mentioned in paragraph 3.11 of the list of issues.[167]A few hours later, there was also the discussion with Mr Tyler. Mr Tyler has not been a witness, but we accept that his email [Bundle 171] accurately summarises some of what was discussed, being: I had a frank discussion with Adrian this morning about his condition. He told me this is a relatively recent diagnosis and he is still trying to understand it. He is not getting medical support, his diagnosis was in Wales and shortly after he moved to London. I asked him is he was OK with customer interactions, he said as long as nothing escalates he is fine and he hasn’t had any really bad feedback up to this point. Adrian wasn’t aware of the support Networks we have in place so I have sent him the contact details for EAP. I’ve also told him to let us know if he needs to discuss anything at any time.[168]In terms of when the Respondent ought reasonably to have been aware of the disadvantage, our decision is that, in this case, the employer could reasonably be expected to have known about the disadvantages throughout the entire period of his employment. The Claimant’s autism was discussed at the interview and the Claimant made the Respondent aware that he was willing to share the diagnosis with them. It was also discussed with his first line manager, Mr Savill. 35 of 60[169]The Respondent suggests that (as per paragraph 20 of Schedule 8 EQA), it could not reasonably have been expected to have been aware of the disadvantage early in the Claimant’s employment because, at the recruitment stage, he said he did not require any adjustments. There is a factual dispute because the Claimant denies that he said he would not need adjustments during employment, and says the comment that the Respondent is referring to was in response to a specific query about whether he would need adjustments for the interview/selection process (only). We do not need to resolve the factual dispute because we accept the Claimant’s submission that, prior to starting work, he did not know how the PCP operated and was not in a position to say, at interview, whether he would or would not be disadvantaged by the PCP in comparison with persons who are not disabled. Since the Respondent did know the PCP, and had been told what the Claimant’s disability was, they could reasonably have been expected to be more proactive in investigating whether the PCP would disadvantage the Claimant.[170]In any event, regardless of what the Claimant said pre-employment, he also posted about his autism on the Respondent’s internal messaging system (Yammer), as acknowledged by colleagues, including Judith Jackson’s message on 14 April 2023 [Bundle 116] which invited the Claimant to contribute to some internal content that she was hoping to publish as part of “Autism awareness month in April”.[171]Even if we are wrong that the Respondent should reasonably have been expected to be aware of the disadvantage from the start of employment (or from the Claimant’s Yammer posts), and even if we were to accept the Respondent's argument that because the Claimant said, during recruitment, that he did not require reasonable adjustments they were not obliged to carry out further investigations, then at the latest, the Respondent ought to have found out about the disadvantage shortly after 14 April 2023. In the one-to-one discussion with Mr Savill [Bundle 113], in terms of support required from line manager, the Claimant’s comment was: As Patrol with autism, I take longer to understand or need things explained in a different way. So I just need some time to have things explained to me or for PL’s or managers to take some time to understand it may take some time to sink in. As it takes a while for me.[172]Our decision is that this was sufficient to put the Respondent on notice that further enquiries were necessary to fully understand what it was that – because of his disability – the Claimant needed to have explained to him differently, or which things might take longer to sink it. An employer of the Respondent’s size could be reasonably expected to think about how a new employee with those needs might be affected by the PCPs which the employer applied to the new employee. So, while it is true that those minutes do not record the Claimant specifically saying that a PCP of changing jobs at short notice was something that he struggled with, 36 of 60 he was making clear that – as a general point – he might need more detailed and/or specific explanations than someone without his disability might need.[173]The things which the Claimant did to counteract any impression the Respondent might have formed at interview (that the Claimant did not require any adjustments) did not end with the things said to Mr Savill. We have already mentioned the email to Mr Smith on 19 May 2023 [Bundle 119]. It included: … just sending off an email, to you both requesting help and understanding in what went wrong. plus as Id asked David Bedford today for advice on this he advised that i request further training on tach master and pre drive to better understand how they work as the way you understand it i do not because of my autism. which frustrates the hell out of me as well as others trying to help. but they don't understand that i don't get what they're or they don't get what I'm saying or trying to explain i know your all trying to help but the way you go about it is mentally taxing and stress full to me, to the point that you think I'm not worth training and would rather give up on me. to which i see this and all the ways previous employers have treated me comes back and i end up overwhelmed and shut down because the alternative of what I'd do scares me to the point of a mental breakdown and it is all to do with my AUTISTIIC NATURE.[174]Our decision is that, on any objective reading of that email (sent to his line manager’s line manager), the Respondent could reasonably be expected to be aware that the Claimant might be disadvantaged by some of the Respondent’s requirements, and might require reasonable adjustments. The email is sufficient to have put the Respondent on notice that investigations were required, and we are satisfied that, had such investigations taken place, then the specific disadvantages that the Claimant relies on for this claim would have come to the employer’s attention.[175]For what it is worth, and in passing, while the Respondent denies being aware of the disadvantage, as mentioned above, Mr Townsend’s oral evidence was that the Claimant’s email was sufficient to prompt Mr Smith to send the Claimant a link which contained information about Occupational Health referrals. As we have already said, neither Mr Smith nor Mr Townsend actually referred the Claimant to Occupational Health. If it is hypothetically true (and we have not heard from Mr Smith) that he was intending (by his 22 May email) to make the Claimant aware that the Claimant could refer himself to Occupational Health, then that is not sufficient, in our judgment, to show that the Respondent had done all it could reasonably have been expected to do to acquire information about which PCPs (if any) placed the Claimant at any disadvantage, and/or about what those disadvantages (if any) were.[176]In terms of what knowledge the Respondent actually had (and when) and what knowledge it reasonably ought to have had, Mr Boddison’s two emails of 15 July 2023 are also significant. 37 of 60176.1 At 20:05, Mr Boddison wrote to Mr Townsend (who was on leave), Mr Smith and Ms Begum, and others, stating (our emphasis): Adrian had a SPCD duty slot in tonight but nobody knew what it was for, and me asking him had made him feel stressed. He has explained to me about his autism, so I didn’t want to push too hard for answers from him regarding the slot. He did manage to find out what it was for in the end but this was an hour and 20 mins into his shift. Is there anything in place that we should know about to help him? I think with Adrian speaking to different people each day, it might catch some SD staff off guard, with His language being so colourful on the phone he could come across aggressive or argumentative to people who aren’t familiar with him, which could spiral into arguments.176.2 At 23:14, to the same recipients, he wrote: He has also called in tonight to say he can’t go into London due to an autism flare.[177]The replies and lack of replies are worth noting. Mr Townsend was on leave and so would not have been expected to respond. However, Mr Smith seemingly wrote nothing on 16 July. On 17 July, Ms Begum sent a “reply all” email directed at Mr Smith: Morning Tom – is there any support we from indoor prospective provide to Adrian.[178]We are mainly focusing in this section on what the Respondent knew and when. However, it is worth noting that Ms Begum does not appear to be of the opinion that there was nothing that her team could do to make adjustments / assist the Claimant. We infer that she was offering to be involved in hearing about what the Claimant’s requirements were, and in identifying what (if anything) the call handling teams might be able to do to help.[179]Mr Smith replied the same day (to same recipients) stating: Morning all, We are aware of Adrian’s condition and have spoken to him about the fact this will be challenging. If we could just work with him as we see fit that would be amazing, this should only be for a few days max.[180]On the Respondent’s case, Mr Smith’s email should be interpreted as meaning that the Respondent was willing to accommodate the Claimant’s difficulties with driving into Central London. We are asked to interpret it as meaning that Mr Smith had found out from the Claimant that the Claimant would sometimes be able to go to Central London, and sometimes not. We are asked to interpret the message 38 of 60 from Mr Smith being that the Respondent should accommodate this: specifically that(i) the Claimant would alert the dispatchers if he was unable to go to Central London during a particular shift and(ii) because Mr Smith did not anticipate this being a frequent occurrence, he wanted/hoped that on those occasions, the Claimant would be assigned to other jobs, avoiding Central London.[181]If the Respondent’s interpretation of what Mr Smith meant by that 17 July 2023 email is correct, then it follows that, by 17 July 2023 at the latest, Mr Smith was actually aware that there were times when – because of disability – the Claimant might need to have some adjustments made to the system by which the computer chose which jobs to allocate to particular Recovery Patrols. We take account, of course, of the fact that this was specifically in relation to jobs in Central London (on the assumption that the Respondent is correct, and that Mr Smith was addressing that specific issue only in his 17 July email) rather than work allocation more generally, or the changes of jobs at short notice. However, on the Respondent’s own case, it would not be correct to state that, because of what the Claimant said at interview, it still believed, in July or August 2023, that the Claimant did not require any reasonable adjustments. 3.13 If so, were there steps that were not taken that could have been taken by the respondent to avoid any such disadvantage? The burden of proof does not lie on the claimant; however it is helpful to know what steps the claimant alleges should have been taken and they are identified as follows: 3.13.1 Ensuring that despatch spoke to the claimant calmly, politely and truthfully.[182]We do not need to say much in relation to 3.13.1. Even assuming, for the sake of discussion, that the Respondent had a duty to take this step, there was no failure to comply with the duty. On the evidence that we have heard, the Respondent has proven that the dispatchers did speak to the Claimant calmly, politely and truthfully. This is true in particular of Calls 2, 9 and 11, for which we have listened to the audio, but also holds true for the calls for which we have only read the transcript.182.1 The Claimant has not persuaded us that there are any facts from which we could conclude that the dispatchers failed to talk calmly and politely. We have taken account that there was a bit of back and forth that could be called “arguing” between the Claimant and Brian at the beginning of Call 11, but, judged objectively, Brian remained calm and polite even during that portion of the call; he stood his ground, and was firm about when he thought it was his turn to speak, but was not rude or angry.182.2 It was suggested in closing submissions that the Claimant might have perceived that he was being spoken to in a patronising way. However, regardless of whether that was his perception or not, it does not change the fact that they were calm and polite. 39 of 60182.3 We reject the Claimant’s characterisation of any of the remarks as being other than truthful. His submission was that the comments made to him by the call handlers to the effect that there was nothing they could do (to change the way in which the jobs were allocated to him by the Respondent’s computerised system) were not true. In particular, the Claimant alleges an inconsistency in Call 2 between Safyaan saying, on the one hand, that he could not control the system, but also saying, on the other hand, that the Claimant was now locked on to complete a particular job, and it was guaranteed that it would not be reassigned by the computer to someone else).182.4 Even apart from the fact that Safyaan stated that could not “fully control” the system (which is obviously not inconsistent with having some control over it) on a more general point, we think that the call handlers(i) gave the Claimant information which made plain what they were saying and(ii) did not say anything which is inconsistent with what we have been told about how the system operated, or their roles, or the degree of discretion which each of them had.182.5 The Claimant did not agree with what they were saying, but that does not mean it was untruthful.182.6 Put another way, even if it is true that the Respondent, at a more senior level, could have implemented a system of making adjustments for the Claimant, it does not follow that any of the call handlers were lying when they explained matters – as they saw them, from their own perspective – to the Claimant, and we are entirely satisfied that they were not lying.[183]Paragraph3.13.1 does not identify a failure to make reasonable adjustments.3.13.2 Referring the claimant to OH earlier.[184]As we mentioned in the Law section of these reasons, Tarbuck makes clear that, in itself, a failure to consider making adjustments is not a breach of the duty to make reasonable adjustments.[185]It is true that, in our judgment, an organisation of the size of the Respondent could have made an Occupational Health referral for the Claimant sooner. As we said when analysing what the Respondent could reasonably have been expected to know, our analysis is that it was on notice of the need to potentially investigate how the Claimant’s disability might affect him at work(i) from the start of employment;(ii) from the Yammer posts;(iii) from the 121 with Mr Savill in mid-April;(iv) from the 19 May email to Mr Smith;(v) from the 15 July emails from Mr Boddison (which, among other things, prompted Ms Begum to ask Mr Smith if there was anything her team could do to help the Claimant). 40 of 60[186]We have not been provided with an adequate explanation for the lack of Occupational Health referral (and we reject the argument that Mr Smith’s email of 22 May sufficed as an offer to the Claimant that he could have a referral if he wanted one).[187]However, in itself, simply referring the Claimant to OH would not have reduced or eliminated the disadvantage that the Claimant was at. As acknowledged in Tarbuck, an OH referral (or similar attempt to gather information) might be something which helps the employer to identify steps which it is reasonable for it to have to take (and thereby help it to avoid breaching the duty to make reasonable adjustments). However, that does not mean that a referral to OH is a step which it is reasonable for the employer to have to take.[188]Paragraph 3.13.2 does not identify a failure to make reasonable adjustments. 3.13.3 The claimant’s manager supporting him[189]The duty to make reasonable adjustments is one that falls on the employer rather than a particular individual. During the Claimant’s employment, as mentioned in the findings of fact, the line manager provided to him by the employer was:189.1 From start of employment until May 2023, Mr Savill.189.2 From Mr Savill’s transfer until 31 May 2023, Mr Smith189.3 From 1 June to 10 July 2023, Mr Townsend189.4 From 11 July to 7 August 2023, Mr Smith189.5 From 8 August 2023 to end of employment, Mr Townsend[190]No criticism is made of Mr Savill. On the contrary, the Claimant has positively stated that he was satisfied with the support the Respondent provided from “the claimant’s manager” during the period when Mr Savill was that manager.[191]In terms of Mr Townsend’s experience as a manager, we note and accept as true what he says in paragraphs 5 and 6 of his statement: 5. I was the Claimant’s Performance Leader from 1 June 2023. At this time I covered 3 yards, comprising of Rainham Depot, Rivus Fleet Enfield and Rivus Fleet Heathrow. I was responsible for 25 Patrols. 6. The relationship between Patrols and their Performance Leader is generally a good one. Performance Leaders are still part of the team and we deal with roadside assistance and breakdowns and other things just as a Patrol does, with our role being a 50/50 split between roadside duties and the additional Performance Leader duties. This is important as it means that as Performance Leaders we know the job of the Patrol and the issues that can arise and means we are easily approached, having a 41 of 60 hands on relationship with the team. I started my journey as a Recovery Patrol so I know this part of the business well. I am now a Roadside Mechanic and I operate out of a van, and I am also a Transport Manager, which requires me to hold the Transport Manger Certificate of Professional Competence Qualification which gives me an indepth knowledge of the rules and regulations within the transport industry. I enjoy my role and consider it to be a productive one.[192]We also accept that 1 June 2023 was not the date on which he first started to have managerial responsibilities. From February 2020 until 31 May 2023, he had been Performance Leader (Area Manager) for Hertfordshire where he managed a Team of 25 Roadside Mechanics across all areas of Essex and Hertfordshire.[193]In oral evidence, Mr Townsend stated, and we accept, that, at his level of seniority, he was authorised to decide whether someone had passed or failed probation, including making a decision, on behalf of the employer, that an employment contract would be terminated for failure to pass probation. He was not authorised to dismiss for other reasons (including conduct or performance). For employees who had passed probation, such decisions would be taken by more senior managers.[194]Mr Smith has not been a witness, and we have no direct testimony about his own managerial experience or training.[195]There are no written communications in the bundle in which any combination of Mr Savill, Mr Smith and Mr Townsend (only) write directly to each other about the Claimant’s disability, work attitude, work performance or probation. There is, for example, no handover note from Mr Savill to (Mr Smith or) Mr Townsend. There is, for example, almost1 no correspondence from Mr Townsend asking for advice from Mr Smith in relation to the Claimant. There is, for example, no correspondence from Mr Smith offering any advice or instructions specifically to Mr Townsend about the Claimant. (There are, as discussed, some email trails in which someone else has raised an issue, copied in both Mr Smith and Mr Townsend, and others; some of those include “reply all” responses from Mr Smith; that is, responses which Mr Townsend would have seen – though for those sent between 11 July and 7 August, he did not see them until after his return from leave.)[196]There are no written communications in the bundle in which any of Mr Savill, Mr Smith and Mr Townsend ask for, or receive, any advice from Human Resources or Occupational Health.[197]As noted in the findings of fact, the “Probationary Procedure” specifically refers to “a series of review meetings throughout your probationary period”. 1 On 6 July 2023, Mr Townsend raised a query with Mr Smith about approving the Claimant’s annual leave [Bundle 122], but there are no other queries to Mr Smith from Mr Townsend in the bundle. 42 of 60197.1 It does not state a specific number, but the word “series”, speaks for itself. Mr Townsend accepts that there would typically be a meeting at around the halfway point (and that there was no such meeting in the Claimant’s case). However, we are satisfied that the written policy implies more than simply meeting at the halfway point.197.2 There is a heading and section “Formal Review Meeting”. In context, this is making clear that there will come a time at which a specific meeting will be held to decide the outcome of the probation, being to choose between confirming a “pass”, dismissing the employee, or extending probation (described more fully in paragraphs 5.4 to 5.8 of the Procedure). However, the opening sentence of that section (“Before the end of the probation period, your Line Manager should formally review your progress through the probation period”) reiterates that it is the intention that “formal” reviews should be taking place prior to this outcome meeting.197.3 As made clear by paragraph 5.7, the Respondent does not guarantee that the “Formal Review Meeting” (ie the outcome meeting) will necessarily be held at the sixth month point; it can take place sooner where appropriate.[198]In the context of what “support” was offered to the Claimant by his manager, we have described above the Claimant’s email to Mr Smith on 19 May, and Mr Smith’s 22 May reply. Mr Townsend was copied in to Mr Smith’s reply (though not the Claimant’s original email) and so did see the entire exchange.[199]We have also described above what Mr Boddison wrote on 15 July (in two emails) and what Ms Begum asked on 17 July, and Mr Smith’s reply in that chain of emails.[200]Now the specific PCP to which the Claimant says there should have been adjustments is that set out in paragraph 3.10 of the list of issues (which we have discussed above) and the reasons that he says an adjustment was required (that is, his explanation of what disadvantage he was at in the absence of adjustments) are those set out in paragraph 3.11 of the list of issues.[201]So it is significant that, in Mr Smith’s email of 22 May 2023 [Bundle 119], he stated that the Claimant needs “needs a bit of extra support and coaching”. However, we also have to take into account that the email to which that was a reply was not specifically about the PCP or disadvantage referred to in the list of issues.[202]It is also significant that, on the Respondent’s case, Mr Smith’s email of 19 July 2023 [Bundle 172] reflected that the Respondent was making an adjustment in relation to whether the Claimant was obliged to take jobs in Central London. We will comment further on that interpretation of the email below. For present purposes, we observe that it was a reply in a chain in which Mr Boddison had said “Is there anything in place that we should know about to help him?” and in which 43 of 60 Ms Begum had said “is there any support we from indoor prospective provide to Adrian?”[203]Mr Boddison’s email of 20:50 on 12 August 2023 [Bundle 171], received by Mr Townsend (though specifically naming Mr Smith in the salutation) referred the Claimant’s manager to a particular call. That was “Call 2” using the labels that the calls were given in the hearing bundle. Within that call, the Claimant made clear that one of the issues that he was struggling with was being unassigned from a particular job that he had been expecting to do, and the frequency with which that was happening. He made it expressly clear that his autism was part of what was causing him to have a problem with this. His comments included the following. Each paragraph being a separate comment; we have omitted some intervening comments, and all of Safyaan’s (the call-handler) comments. The capitals are where the Claimant is raising his voice. The words in brackets in italics are added by us to clarify the meaning, where that was not otherwise obvious. I just don't like the system because I'm autistic. The system assigning me jobs as I'm just arriving to them and I'm driving backwards and bloody forwards I've decided now to bloody wait until somebody decides that I can actually do the job, I'm 10 minutes away from right now, not, hang on. From at this present time, just to go for an hour, so the job I'm going to or was assigned to which is 10 minutes away has to go towards Birmingham which is 2 hours away. it's the third job that I've been assigned to since I came online. WELL ASK HIM THAT, ASK HIM THAT. I AIN'T BLOODY MOVING TO HEAD DOWN THERE HALF AN HOUR DOWN THE BLOODY ROAD TO GET ANOTHER JOB DEASSIGNED. YOU HAVE BEEN TOTALLY AND UTTERLY BULLSHITTED ABOUT [the reasons for changing the Claimant’s allocated next job] YOU TELL [Dave Boddison] HE'S PISSED OFF AN AUTISTIC PERSON AND NEEDS TO GO ON A DIVERSITY COURSE. YES I AM [getting angry] BECAUSE IT'S PLAYING UP MY AUTISM. THIS IS THE WAY I AM. SO WHY DIDN’T IT COME ONLINE TO ME INSTEAD OF SENDING ME TO THE FIRST JOB.[204]It is clear from Call 2 (even in isolation, but especially in the context of the earlier information available to Mr Townsend by the time he listened to it, a few days later, and before calling the Claimant to the Probation Meeting), that the Claimant is highlighting the PCP/disadvantage which are now in the list of issues.[205]We are satisfied that the burden of proof shifts for the step suggested in paragraph 3.13.3 of the list of issues. There is support that could have been given by the Claimant’s manager which, at first sight,(i) could have been provided and(ii) was 44 of 60 not provided and(iii) might have reduced the disadvantage to the Claimant. Therefore it falls to the Respondent to satisfy us either that it would not have been reasonable for it to have had to take that step, or else that taking the step would not have reduced or eliminated the disadvantage to the Claimant caused by the PCP.[206]Our reasons for saying that it appears that there is support which could have been given include:206.1 The probation policy discusses the need for review meetings, including that (prior to the eventual outcome meeting) the line manager “should formally review your progress through the probation period”.206.2 Mr Smith stated on 22 May (in the body of his email) that the Respondent was willing to provide support.206.3 Mr Townsend claims that Mr Smith’s 22 May email (apart from what was stated in the body of the email) flagged up (below the signature) support which could be offered.206.4 Mr Boddison thought that there might be support which could be offered.206.5 Ms Begum thought that there was support that might be offered.[207]Our assessment is that Mr Boddison’s and Ms Begum’s views are particularly significant upon listening to Call 2. Call 2 demonstrates that Safyaan and the Claimant could not necessarily resolve matters simply between themselves. If there was to be any solution at all to the issues which the Claimant was flagging up, the solution required involvement of more senior employees. Ms Begum was clearly willing to have a discussion with “the claimant’s manager” (being Mr Smith, as of 17 July 2023, because Mr Townsend on leave). Our decision is that a reasonable step for the Respondent to have had to take was for “the claimant’s manager” to provide “support” by liaising, on the Claimant’s behalf, with the indoor team to advocate for the Claimant. The Claimant’s manager could have supported the Claimant by asking for extra allowance to be made if the Claimant appeared to be frustrated, and asking whether, where possible, manual over-rides could be applied to reduce the number of times when the Claimant was unassigned from a job (for example, where it had been assigned much earlier, and/or towards which he had travelled a significant distance)[208]We do take into account that there is no certainty about what the outcome would have been of those discussions between the “claimant’s manager” and (for example) Ms Begum. We do not know, for example, whether it could have been possible for there to be any agreement that the Claimant’s calls would always go to a particular call handler, or selected group of call handlers. We do not know whether it would have been possible to devise a system of implementing manual 45 of 60 call over-rides for the Claimant (or of inputting additional information into the software to reduce the number of times the Claimant was assigned, then unassigned, in quick succession, and/or unassigned shortly before arrival at a job that he had been travelling to for a long time). We do not know whether the Claimant’s frustration would ultimately have been reduced. All that being said:208.1 The Respondent has failed to prove that additional support from the Claimant’s manager by liaising with the indoor team to look for solutions would not have resulted in measures that were specifically of assistance to the Claimant.208.2 In any event, on the Respondent’s case, it did implement some changes. That is it avoided the Claimant being forced to do jobs in Central London on days when he notified that he was unable to do them. So, on the Respondent’s case at least some changes were possible with managerial support (Mr Smith’s, in that instance). It has failed to prove the nature and extent of that particular (alleged) adjustment, but has also failed to prove that that was the most that could be done, if there was managerial support (as opposed to the Claimant being left himself to ask for changes to allocation, and/or explanations of the allocation system).208.3 Similarly, manual overrides were possible some of the time, and the Respondent has failed to prove that, with support from his manager, it would not have been possible for the team to apply more frequent manual overrides in the Claimant’s case.208.4 The Respondent has failed to prove that, as a minimum, even if there was no adjustment possible to the work allocation system, the Claimant’s frustration (caused by his disability) with the work allocation system would not have been reduced by the knowledge that(i) his manager had advocated for him and(ii) been able to provide him with a specific explanation as to why, despite that support having been provided by his manager, there were no adjustments that the Respondent could make to the work allocation system.[209]In short, in terms of the suggested reasonable adjustment of “the claimant’s manger supporting him”, the Respondent argues that support from the manager would not have a reduced the disadvantage because it was an automated system and it was beyond Mr Townsend's or Mr Smith's powers to do anything about it. Our decision is that, the burden of proof having shifted, the Respondent has failed to prove that particular contention.209.1 Mr Smith has not given evidence (and nor has Ms Begum). There is no evidence in the bundle of Mr Smith asking Ms Begum anything about what type of adjustments her team could offer (whether by way of manual overrides, or anything else). 46 of 60209.2 Mr Townsend did give evidence. The support he provided to the Claimant is described in paragraphs 16 and 20 to 22 of his witness statement, and he also comments on what other support and training the Claimant had.209.3 In terms any efforts made by Mr Townsend to support the Claimant in relation to the PCP / disadvantage mentioned in the list of issues, it is notable that the only thing he says about any discussion with Ms Begum is that it was about the content of phone calls, and was before he had heard them. In terms of work allocation, he states: For example, if a Patrol is assigned to a certain job, but then a more urgent job arises in their proximity, such as a family with a small child being stranded on the motorway in poor weather conditions, then that Patrol may be redirected so that the more urgent job can be attended to more quickly. Patrols are made aware of the fact that this is part of their role during their training at the outset of their employment. It is part of the role to accept that changes may occur and to follow instructions. Informing Patrols that their job has been changed and re-directing them is a reasonable instruction in my view. We have to adapt to this ensure we get the most suitable resource to that task first time. The Claimant would have been made aware of this during training prior to starting on the road. This would have also been the case on many shifts that the Claimant would have carried out during his time with the AA209.4 This passage is consistent with his oral evidence to the effect that the system was the system, and there was nothing that could be done about it. Mr Townsend and Mr Smith provided no support to the Claimant to either (if true) say they had liaised with colleagues, discovered nothing could be done, and to help the Claimant come to terms with the fact that work allocation could not be adjusted or else (if true, and which we think is more likely) to negotiate some adjustments with Ms Begum, and other relevant colleagues,and explain to the Claimant what those adjustments were.[210]Thus, in relation to the step suggested at paragraph 3.13.3, there was disability discrimination. This was a reasonable step for the Respondent to have had to take in accordance with the duty created by section 20(3) EQA, and there was discrimination within the meaning of section 21(2) EQA. Dismissal[211]We have already mentioned the emails that Mr Boddison sent on 15 July 2023, Ms Begum’s prompts on 17 July, and Mr Smith’s reply at 9.36 that day [Bundle 173- 172].[212]There is then a gap until 12 August. The email exchange of 15 to 17 July was not discussed with the Claimant, either by Mr Smith at the time, or by Mr Townsend on his return from leave on 8 August 2023. 47 of 60[213]So nothing had been discussed directly with the Claimant prior to the next email in the trail, Mr Boddison’s at 20:50 on 12 August which (as mentioned above) asked Mr Smith to listen to “the call that was made by Safyaan … to Adrian at around 20:30 tonight 12/08”. The email added: “I think you need to be aware of the nature of his calls as it is a regular occurrence”.[214]It was Mr Tyler who then forwarded the links to two audio recordings, on 13 August 2023 at 06:17. He provided a link to the one mentioned by Mr Boddison (labelled Call 2 for this litigation). He also provided a link to Call 9 (with Aaron). We have cited the relevant extracts above,[215]Mr Tyler said this about Mr Boddison’s comments and about Call 2: I have had similar interactions with Adrian. On one call he is fine, on another he’s argumentative and unreasonable. I fully appreciate that we need to support Adrian with his condition and he is clearly a very capable driver, however I do worry about him being in a customer facing role.[216]Mr Tyler said this about Call 9: Find below an example of a call into the office this morning where Adrian mentions dropping myself and my recovery dispatcher off a 3rd story window onto our heads! Please note myself or my dispatcher take no offence and he was clearly joking. However, someone who’s circumstances were different could’ve taken that call and been extremely upset by it (I am very glad that another member of my team didn’t take this call).[217]His email then continued with the extract mentioned above, about having had a frank discussion with the Claimant about the Claimant’s condition.[218]The Respondent has not been able to provide an audio recording or transcript of the call with Mr Tyler. We are not treating that as suspicious. We accept that, because of the particular devices used, there was no audio recording made. That being said:218.1 Mr Townsend did not interview Mr Tyler.218.2 The Respondent has not called Mr Tyler as a witness in these proceedings.218.3 Mr Townsend did not play any audio recordings to the Claimant in the dismissal meeting.218.4 The Claimant spoke, in the dismissal meeting, about having apologised.218.5 The Claimant was not challenged on that at the time, or asked to explain. He was not told by Mr Townsend that Mr Townsend had not heard any apology in any of the calls he had listened to. 48 of 60218.6 We accept that the Claimant had no way of knowing that the call between himself and Mr Tyler was not one of those that Mr Townsend had listened to. On the contrary, given what Mr Townsend did say to the Claimant on 23 August, the Claimant had every reason to believe that the call with Mr Tyler on 13 August (before the end of the Claimant’s 12/13 August shift) was one of those which Mr Townsend was referring to.218.7 We accept the Claimant’s evidence to the Tribunal that the Claimant did apologise for the remarks in Call 9 before the end of the shift, and that he did so to one of the people about whom the comments had been made. His evidence to the Tribunal is consistent with what the Claimant said on 23 August to Mr Townsend and is not at all inconsistent with what Mr Tyler wrote on 13 August to Mr Townsend and others.[219]Another dispute arises out of Mr Tyler’s email. As cited above, it includes the sentence: “I asked him is he was OK with customer interactions, he said as long as nothing escalates he is fine and he hasn’t had any really bad feedback up to this point”. The Respondent suggested that this shows that the Claimant told Mr Tyler that he might flare up with a customer if (because of his disability) he became frustrated. The Claimant was not shown the email during his employment, and we accept his evidence to the Tribunal which is that he specifically told Mr Tyler that he thought that there was no danger of a flare up with a customer, and that he recounted his past history (both before and after joining the Respondent) of having had a good relationship with customers, and no complaints from them.[220]As of 15 and 17 July, neither Mr Boddison nor Ms Begum appeared to be suggesting that the Claimant’s conduct was such that it merited dismissal. Each of them sought information from the Claimant’s line management as to whether there was anything else their team needed to do. It is also a fair interpretation of Mr Boddison’s emails that he thought that the Claimant’s line management needed to be made aware of the tone and content of the Claimant’s phone calls. Mr Boddison has not given evidence, but we infer that he was(i) expecting that the Claimant’s managers would raise the matter with the Claimant and(ii) hoping that would be sufficient.[221]Mr Smith has not given evidence to the Tribunal about the email that brought the 15 to 17 July correspondence to a close. He wrote: Morning all, We are aware of Adrian’s condition and have spoken to him about the fact this will be challenging. If we could just work with him as we see fit that would be amazing, this should only be for a few days max. Many thanks, 49 of 60[222]If, as the Respondent has argued in this hearing, it was an email asking that the Claimant not be allocated jobs in Central London (some of the time, at least) then it follows that he was providing no response whatsoever to what Mr Boddison had said about the Claimant having been stressed on the 15 July shift, or about the comments: I think with Adrian speaking to different people each day, it might catch some SD staff off guard, with His language being so colourful on the phone he could come across aggressive or argumentative to people who aren’t familiar with him, which could spiral into arguments.[223]The Respondent has not provided evidence from Mr Smith about which conversation or conversations Mr Smith had in mind when he wrote “we” or “have spoken to him”. There is no evidence from Mr Smith about what he meant by “this” when he wrote “this will be challenging”.[224]The comment “work with him as we see fit” does not expressly specify any particular course of action. As we have mentioned, the Respondent argues that the correct interpretation of “this should only be for a few days max” is that it meant that the Claimant would usually be able to drive in Central London, but “for a few days max”, he would not be able to, and that “work with him as we see fit” should be interpreted as “on the days that he cannot drive in Central London, please avoid giving him jobs there”. If that is true, it implies that Mr Smith believed that work allocation could be adjusted by the Respondent’s employees to override what the computer software would otherwise allocate.[225]As well as no witness evidence to the Tribunal to explain the meaning of the 17 July email, there is also no meeting notes or communication between the Claimant and Mr Smith about Mr Smith agreeing that the Claimant did not have to drive in Central London when he felt unable to do so. Likewise, there are is no correspondence showing any discussion between Mr Smith and Human Resources about such an agreement, or between Mr Smith and Mr Thompson.[226]Additionally, Mr Townsend’s question on 23 August And that you have refused to work within London? Why is this? shows no indication of Mr Townsend being aware that the Claimant and Mr Smith had discussed the topic and reached an agreement over it.[227]Similarly, and furthermore, if Mr Townsend was aware of such an agreement, then it is surprising that his comment You do understand that the position that you applied for within the AA was a recovery Patrol in North London depot? So this is really where I need you to be working if there is work within this area and the City is a high workload area. 50 of 60 made no reference to there being any prior agreement, and no reference to Mr Townsend having checked with Mr Smith that Mr Smith was in agreement with the implication that the Respondent could not accommodate a Recovery Patrol from that depot not doing Central London jobs.[228]In fairness to both parties, we have considered whether the comment “this should only be for a few days max” indicates that it had already been decided that the Claimant would be dismissed shortly. On balance, we do not interpret it that way, as it would not fit in with the chronology. A month went by before the Claimant was invited to the meeting which resulted in his dismissal, and the invitation was more than a week after Mr Townsend was back from leave. We accept Mr Townsend’s evidence that it was his decision to arrange the Probation Review Meeting, and that he did so as a result of the emails of 12 August, and later, and listening to Calls 1 to 9 (and also as a result of the further information supplied by Ms Begum on 16 August 2023 [Bundle 174-175]).[229]In any event, whatever Mr Boddison was hoping or expecting to be the outcome of his 15 July emails, Mr Townsend did not speak to the Claimant about the matters raised in those emails on his, Mr Townsend’s return form leave on 8 August 2023. In the period 15 July to 11 August 2023, there were no interactions between the team and the Claimant that prompted Mr Boddision (or Ms Begum) to raise any fresh queries or issues about the Claimant until 12 August. (Although Mr Boddision did state and imply on 12 August, that there had been some other calls since 15 July that were potentially also perceived as the Claimant being difficult; that is, he suggested that the call to Safyaan was an example of a pattern, rather than a one off)[230]Mr Boddison’s email was sent a very short time after Call 2. We have listened to the audio more than once, as well as carefully considering everything in the transcript. However, in any event, the email itself makes clear that Mr Boddison views the contents of the call as something that is sufficiently serious for it to be raised with more senior employees. Within the call, amongst other things, the Claimant is insulting about Mr Boddison. The remarks include the following. References to “you” are to Safyaan and to “the dispatcher” or “Dave” or “him” and “he” are to Mr Boddison. Well you tell Dave don't piss me off this time. I think that’s bullshit. YOU HAVE BEEN FOBBED OFF BY THE DISPATCHER YOU HAVE BEEN TOTALLY AND UTTERLY BULLSHITTED ABOUT IT. DAVE'S BEING AN ASSHOLE. YOU TELL HIM HE'S PISSED OFF AN AUTISTIC PERSON AND NEEDS TO GO ON A DIVERSITY COURSE. 51 of 60 I am not happy with the way Dave has treated me. I want to know how I can make a formal complaint about it.[231]As mentioned above, a few hours later, Mr Tyler forwarded the audio recordings for Calls 2 and 9, and over the next few days, Mr Townsend obtained, via Ms Begum, the facilities to listen to all of Calls 1 to 9. He did not listen to Call 11 until he was preparing his witness statement for this hearing.[232]The two items in the list of issues which referred to the dismissal are paragraph 3.5.5 and, for the reasonable adjustments complaint, paragraph 3.13.4 which states that a step that it was reasonable for the Respondent to have had to take was: 3.13.4 Making allowance for the claimant’s meltdowns when conducting his probation review and not dismissing him.[233]There are effectively two steps there. One is “making allowances” for the Claimant, and the other is “not dismissing him”.233.1 For the first of these, given the comments that the Claimant made to call handlers about colleagues (Mr Tyler and Mr Boddison in particular) and the tone of voice, volume of voice and specific words used to the call handlers, we have to decide whether it would be reasonable for the Respondent to have had to take the step of expecting the call handlers themselves to put up with more from the Claimant than they might have had to put up with from other Recovery Patrols AND whether it would be reasonable for the Respondent to have had to take the step of expecting the likes of Mr Tyler and Mr Boddison to have to put up with the Claimant making insulting comments about them to the call handlers.233.2 The answer to the first question will heavily influence the answer to the second question, though we also need to take into account that other matters were raised in the Probation Review Meeting, not just the phone calls, and to take into account the other matters mentioned in Mr Townsend’s witness statement.[234]In terms of what call handlers might be expected to put up with, we accept that the anger demonstrated by the Claimant’s words, tone of voice, and the actual words used are more than this employer, or other employers with comparable operations, might expect their call handlers to have to tolerate from colleagues. We also take into account that, on 15 July, Mr Boddison said that he personally was not offended, and, on 13 August, Mr Tyler said that he and Mr Boddison “take no offence”. Brian’s own comments in Call 11 make clear that he, Brian, was willing to make allowance for the Claimant. Whereas Mr Tyler’s remarks imply that Aaron was someone able to cope with the particular contents of Call 9 (albeit, Mr Tyler was concerned that some other call handlers would have been less able to cope). 52 of 60[235]Mr Tyler's email of 13 August [Bundle 171] was copied directly to Mr Townsend. So Mr Townsend knew at the outset (even before listening to Call 9) that Mr Tyler (and according to him, Mr Boddison too) thought that the Claimant was “clearly joking” when he referred to dropping them on their heads.[236]The email also appeared to demonstrate that Mr Tyler and Mr Boddison regarded the Claimant’s behaviour on the phone as connected to the Claimant’s autism. At the least, it acknowledged that they knew that that was the Claimant’s assertion. Mr Townsend did not interview them, or the call handlers, to discuss what allowances they might be willing to make if the employer was satisfied that the Claimant’s behaviour was caused by his autism.[237]Furthermore from reading the email, Mr Townsend would have been aware that, according to the Claimant, at least, the Claimant had not been aware of the Respondent’s support networks prior to the 13 August conversation with Mr Tyler. In other words, all of the alleged conduct during the 12/13 August shift (and any prior to that) was before the Claimant had been aware of such support.[238]The issue of whether the reasonable adjustment complaint based on the step described in paragraph 3.13.4 should succeed is very closely linked to, and overlaps with, the Respondent’s arguments that (to the extent necessary) if can demonstrate that the dismissal was a proportionate means of achieving a legitimate aim.[239]Dismissing an employee (including by reason of deeming that they failed probation) is treating somebody unfavourably within the definition in section 15(1)(a) EQA.[240]We are satisfied and that the dismissal was, at least in part, because of something arising in consequence of the Claimant's disability, namely the contents of the phone calls.240.1 In reaching that conclusion, we have accepted the Respondent’s point that the specific conversation about dropping Mr Tyler and Mr Boddison on their heads came in the context of the Claimant stating that a particular job could have been sorted out more easily and quickly if the decision-makers had agreed to the Claimant’s suggested course of action earlier. It was not specifically a comment about the PCP of changing jobs at short notice.240.2 Further, in oral evidence, Mr Townsend stated that the fact that the Claimant had referred to some colleagues as “plebs” and influenced him. That was in Call 3, and was a criticism of colleagues who (according to the Claimant) had left a customer’s vehicle somewhere that was inaccessible for him to load it onto his vehicle. So, again, on the Respondent’s case, this was an unpleasant comment by the Claimant that was not connected to the PCP mentioned in the list of issues. 53 of 60240.3 However, the dismissal decision was influenced by all the calls, not just Call 9. In particular, Call 2 was what prompted Mr Boddison’s 20:50 email, and that in turn was (part of) what prompted Mr Tyler’s email a few hours later. The events surrounding Call 2 did form part of the questioning on 23 August (as did the contents of Call 9), but the “pleb” comment was not brought up.240.4 Call 2 was where the Claimant expressed particular concerns about the Respondent’s work allocation processes, and, among other things, where he mentioned that the frequent changes were difficult for him because of his autism. (His autism was mentioned several times within Calls 1 to 9, which Mr Townsend listened to before arranging the Probation Review Meeting)[241]More generally, Mr Townsend's dismissal decision was based on the fact that, because of the Claimant’s autism, Mr Townsend believed that there was a future risk of the Claimant and raising his voice and/or being angry and/or being aggressive to other colleagues or other customers in the future.[242]We satisfied that he reached that conclusion, having been influenced by what the Claimant said in Call 2, and by the context of Call 2, being the Claimant's temporary refusal to drive to the next job while he demanded an answer about why the jobs had been changed.[243]The “something arising” as identified in paragraph 3.4 of the list of issues was what led to Call 2, and, in turn, the contents of Call 2 was part of Mr Townsend’s motivation for dismissing the Claimant.[244]Since the dismissal was partially motivated by the “something arising”, we have to consider whether the dismissal was a proportionate means of seeking to achieve a legitimate aim.[245]We accept that the Respondent did have all five of the alleged legitimate aims. i. Ensuring a safe and appropriate working environment for all of its employees; ii. Ensuring that all of its employees are treated with dignity and respect in the workplace; iii. Ensuring a safe and appropriate environment for all of its customers; iv. Ensuring that all of its customers are treated with dignity and respect by its employees; and v. Ensuring that the Respondent’s reputation is not placed at risk.[246]We accept that - in Mr Townsend's opinion - the dismissal was a means of seeking to achieve those aims.[247]In terms of how the Claimant spoke to, and interacted with customers, the Respondent has not shown that it was proportionate to dismiss the Claimant in 54 of 60 pursuit of aims (iii) and (iv). There was a lack of any evidence either that the Claimant had spoken to a customer in a raised voice or an angry or aggressive manner.[248]The Respondent has also not shown that it was proportionate to dismiss the Claimant in pursuit of aim (v). There was a lack of any evidence that any customers overheard the Claimant’s conversations with any colleague, or had seen or heard him do anything that was detrimental to the Respondent’s reputation. There was no evidence that the Respondent's reputation with customers had been placed at risk by anything that the Claimant had done[249]Furthermore, as well as not having any factual evidence that such things had already happened by 23 August 2023, there was no attempt by the Respondent to obtain medical evidence, or other expert evidence, about the likelihood of any of those things happening in the future. It certainly did not have such expert evidence, and the Claimant was not asked to either provide any evidence from his GP, or the evidence of the autism diagnosis, or to agree to attend an Occupational Health assessment.[250]Therefore, since reliance on aims (iii) to (v) fails, the defence stands or falls based on aims (i) and (ii) only.[251]We do accept that the dismissal was a means of seeking to achieve each of aims (i) and (ii).[252]We have to conduct a balancing exercise in relation to deciding whether dismissal was proportionate.[253]We take into account that any termination of employment can have very serious consequences for any employee in any circumstances. That includes financial consequences and self-esteem consequences. Furthermore, a dismissal, including a failure to pass probation, on the grounds of an alleged conduct or performance issue can potentially have knock-on effects in terms of the ability to secure new employment.[254]We accept that aims (i) and (ii) are very important to the Respondent.254.1 In terms of how to treat comments such as those made in Call 9 (about dropping Tyler and Boddison on their heads from a large height), we accept that any responsible employer would wish to take action following, rather than ignore, such comments. That is so even if the comments had been made as a so-called “joke” and/or were clearly intended as a figure of speech, rather than a literal “threat” to carry out the action.254.2 Any reasonable employer would want to ensure that the employees have an appropriate working environment. The Respondent – like any employer - has 55 of 60 very clear legal duties to its employees. It has statutory health and safety duties. It has the duty of care at common law to avoid negligently endangering the health and safety and well-being of its employees. In addition, out there are potentially claims it can be bought at an employment tribunal, including constructive unfair dismissal, by an employee who believes that the employer has improperly allowed another employee to abuse them.[255]One issue we have to decide is whether there was any less discriminatory means for the Respondent to achieve its legitimate aims.255.1 In doing so, that we take into account what Mr Tyler and Mr Boddison each said (in emails) to Mr Townsend and Mr Smith. We also take into account what Brian said to the Claimant.255.2 We also take into account that we have decided that the Respondent failed to make at least one reasonable adjustment. See our decision above in relation to the step identified in paragraph 3.13.4 of the list of issues.255.3 Our assessment is that the Claimant’s line managers (Mr Smith and Mr Townsend) failed to support the Claimant in negotiations with the call handlers and dispatchers to see whether or not the indoor team could do anything to reduce the number of cancelled jobs by manually overriding.[256]Our decision is that the Respondent has not proven that there was no less discriminatory measure that it could take to achieve the legitimate aims. For example, it has not been proven that:256.1 Giving the Claimant a formal written outcome from a review meeting at part of the probation procedure would not have achieved the aims.256.2 That informing the Claimant that he was on a “final warning”, for example, if there was any repetition of comments (whether intended literally or not) about physical violence would not have achieved the aims.256.3 That informing the Claimant that arguing with dispatchers or call handlers and could potentially lead to failed probation, (or possibly a dismissal even after the end of probation, if he did pass it).[257]We do not suggest that it would have been reasonable to expect the Respondent to have told its call handlers that they had no choice other than to put up with any and all abuse that the Claimant delivered to them, regardless of what he said, or how he said it. However, we also reject the argument that the only two options were either the proposition mentioned in the previous sentence, or else dismissing the Claimant. In saying that, we have taken into account that: 56 of 60257.1 The Claimant was willing to be open about his autism. He frequently mentioned it during calls. So the options available to the Respondent in terms of what it could ask the Claimant’s colleagues to tolerate were options which included explaining the Claimant’s disability to his colleagues. It was, or ought to have been, obvious to the employer that the Claimant’s formal written permission for that was not likely to be withheld.257.2 As is clear from the case law, and from EHRC guidance, there are many examples of steps that employers are obliged to take - in order to comply with a duty to make a reasonable adjustment – which require the employer to insist that the disabled person’s work colleagues have to do things that they would not have otherwise been obliged to do.257.3 If, on investigation, the employer found that it was necessary, it might have been possible to arrange that when the Claimant called in, his call would be transferred to one of a group of nominated individuals. This might have the dual benefit of(i) from the Claimant’s point of view, he would be dealing with people who were already aware of his autism, and did not require him to explain it each time and(ii) from the employees’ point of view, it would manage the risk of the Claimant encountering an inexperienced, or sensitive, colleague who might be adversely affected by his attitude.[258]The Respondent made no enquiries at all, either via occupational health or by asking to see the Claimant's autism diagnosis. If the Respondent thought that it was unsafe to allow the Claimant carry on working, unless and until it had looked into whether or not adjustments could be made to reduce the risks of flareups in the future, then they could have suspended him, while those enquiries were made and while adjustments were contemplated. Significantly, however, no action to refer to OH (or ask to see the autism report) was taken immediately after Mr Boddison raised the Claimant’s “colourful language” on 15 July. We are not saying that suspending the Claimant was definitely justified; simply that suspending the Claimant pending further enquires would have been less discriminatory than dismissing him on 23 August 2023, having made no such attempts to collate further information about the effects of the Claimant’s disability.[259]The Respondent has not proven that there were no less discriminatory means of managing the risks to other employees. Furthermore, we have not been provided with any risk assessment which was undertaken.[260]This is large and well-resourced employer. Probation review meetings had not occurred. The Claimant had not been warned about his conduct. The Claimant had flagged up issues of concern in April, May and July, but no referral to OH was made in response to any of those concerns, or at all. 57 of 60[261]As the Claimant told Mr Townsend during the 23 August meeting, he had apologised. He was referring to his apology to Lyndon Tyler. Mr Townsend asked him no questions about the apology, and took no other steps to look into whether(i) it was true that the Claimant had apologised or(ii) who he had apologised to or(iii) whether the recipient had accepted the apology.[262]The fact that the Claimant apologised is significant to the proportionality of the decision to dismiss.262.1 We are not suggesting that - regardless of the circumstances - if a disabled person apologises for conduct caused by something arising in consequence of the their disability then that should always mean that dismissal is disproportionate.262.2 However, the nature of the conduct, the nature of the apology, and the timing of the apology are all relevant.262.3 In terms of timing, the Claimant apologised during the same shift. He also apologised long before Mr Townsend wrote to him about possible termination of employment. Indeed, the apology had been made before Mr Townsend was aware of the conduct during Call 9.262.4 There is no audio recording of the apology, and no evidence from Mr Tyler about it. However, his actual email of 13 August speaks for itself. We are satisfied that he was not seeking anything further from the Claimant in terms of apology following the “frank” discussion they had on 13 August.262.5 The conduct by the Claimant was not trivial. It was conduct that workers should not generally have to tolerate from customers or colleagues. That being said, it consisted of shouting, of using some bad language, of being angry. It also consisted of highly inappropriate comments about physical violence, but in a context in which it was plain that he was not being literal; none of Aaron, Mr Tyler or Mr Boddison thought that he was being literal. This panel does not think he was being literal, or that Mr Townsend had any rational basis for thinking the comment was intended literally.262.6 However, the fact that the Claimant had apologised, and the fact that he had not previously been warned, are relevant to whether the decision to dismiss on 23 August was proportionate.262.7 For avoidance of doubt, we do not ignore the fact that Call 11 post-dates the apology, or that that fact would undermine any suggestion that the apology represented a hard stop on any argumentative conduct by the Claimant. However, for the purposes of the balancing exercise, the apology was at least an indication that the Claimant might be willing to try to improve, and Call 11 was before there had been any indication to the Claimant from Mr Smith or 58 of 60 Mr Townsend that he was in danger of failing probation. Call 11 also took place without the Respondent having implemented any adjustments to the work allocation system (other than, according to the Respondent, avoiding the Claimant having to do jobs in Central London on the days he was not able to do so).262.8 The Respondent’s argument that the Claimant was incapable of modifying his behaviour, and that a warning was pointless, has to be set against the fact that it did not have medical evidence to support that conclusion, and that the Claimant’s own stance – which we satisfied he made clear to the Respondent – was that he was able to control his behaviour, in at least some circumstances (such as customer interactions). The apology offered at least some evidence that the Claimant might be willing to make a good faith attempt to modify his behaviour in calls.[263]Given the apparent understanding demonstrated by at least some of the call handlers to the Claimant's situation, and the lack of evidence that any of them actually felt threatened by the Claimant, dismissing the Claimant rather than imposing a sanction short of dismissal was disproportionate. For that reason the complaint that the dismissal was discrimination within the definition in section 15 EQA succeeds.[264]We also take into account that the grievance was not dealt with before the dismissal (or at all) and that the Respondent treated the matter purely has “failed probation” (and therefore no right of appeal) despite the emails sent by Mrs LloydPenny after (as well as before) the termination (which, as the Claimant made very clear, were written on his behalf and with his full authorisation).[265]In terms of the adjustments suggested by para 3.13.1, for similar reasons to our rejection of the section 15(1)(b) defence, our decision is that there were steps that it would have been reasonable for the Respondent to have had to take rather than dismissing the Claimant (without taking those steps) on 23 August.[266]In particular, even if the words used, and general attitude displayed by the Claimant, in the phone calls, would have led to the early termination of probation for someone without the Claimant’s disability, it would have been a reasonable adjustment to have given a warning to the Claimant, and a chance to come to terms with the frustrations caused by the work allocation system, rather than instantly dismiss on 23 August. In terms of “allowances” for the Claimant’s behaviour, we do not think that it would have been reasonable for the Respondent have had to make it a “one way street” where the call handlers simply had to put up with things from the Claimant that would be unacceptable from another Recovery Patrol; however, as exemplified by each of Brian and Mr Boddison and Mr Tyler, the Respondent did have employees who were willing to be patient with the Claimant and make allowances for him. According to Mr Townsend, he did not 59 of 60 conduct any probation reviews with the Claimant before 23 August because he expected the Claimant to pass probation. By way of adjustment, it would have been reasonable for the Respondent to have had to give the Claimant – who had not previously been warned about his phone manner – to be told that he had to improve or he might fail probation. The same applies to the alleged conduct during the shift of 16 August 2023 (accompanied, in that case, by further discussions about exactly which aspects of the interface the Claimant was claiming to be struggling with).[267]Since the claim was presented on 18 October 2023, following early conciliation from 29 August to 18 September 2023, complaints based on acts/omissions on or after 29 May 2023 were in time. All the complaints which we have upheld were in time. Approved By:[1]The overall sum which the Respondent is ordered to pay to the Claimant is £24,111.68 which is broken down as follows.[2]There is no component for grossing up based on our assessment that there will be no tax payable. If we are wrong about that, and HMRC decide that tax is payable, there can be an application for reconsideration.[3]We do not award aggravated damages, and we are not satisfied that the Claimant has suffered a personal injury as a result of the contraventions of the Equality Act 2010 ("EQA") which we found to have occurred.[4]The Claimant has failed to act reasonably to mitigate his financial losses. Had he acted reasonably to mitigate those losses then he would have been able to start work in a new job, with pay, pension and other benefits matching those he had from the Respondent within 6 months of the date of termination. We assess the financial loss at £8138.28. We award interest on financial loss of £1,113.05.[7]We assess the injury to feelings at £11,000. Case No: 3311886/2023[8]We award interest on injury to feelings of £1,668.38.[9]There is an uplift of 10% for unreasonable failure to comply with ACAS Code (section 207A Trade Union and Labour Relations (Consolidation) Act 1992[10]We make two recommendations: 10.1. For a period of two years from today, whenever the Respondent advertises Recovery Patrols vacancies, it should send a copy of the advert by email to the Claimant within 7 days of first publication. 10.2. For a period of two years from today, whenever the Respondent receives a reference request relating to the Claimant from a prospective employer, it must send a response to the requester within 7 days. We make no recommendation as to the contents of the reference. REMEDY JUDGMENT was delivered orally, with reasons, on 15 July 2025 and the written judgment was sent to the parties on 27 August 2025. Written reasons were requested by the Claimant on 9 September 2025, in accordance with the appropriate procedure and time limit.
Introduction
[11]When making an award for injury to feeling, the tribunal should have regard to the guidance issued in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871, [2003] IRLR 102, [2003] ICR 318, CA, and taking out of the changes and updates to that guidance to take account of inflation, and other matters. Three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury, were identified: 11.1. The top band was (at the time) between £15,000 and £25,000. Sums in the top band should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. 3 of 27 11.2. The middle band was, initially, £5,000 and £15,000. It is to be used for serious cases, which do not merit an award in the highest band. 11.3. The lower band is appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. Awards in this band must not be so low as to fail to be a proper recognition of injury to feelings.[12]In Da’Bell v NSPCC (2009) UKEAT/0227/09, [2010] IRLR 19 the Employment Appeal Tribunal revisited the bands and uprated them for inflation. In a separate development in Simmons v Castle [2012] EWCA Civ 1039 and 1288, [2013] 1 WLR 1239, the Court of Appeal declared that - with effect from 1 April 2013 - the proper level of general damages in all civil claims for pain and suffering, would be 10% higher than previously. In De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, the Court of Appeal ruled that the 10% uplift provided for in Simmons should also apply to Employment Tribunal awards of compensation for injury to feelings and psychiatric injury.[13]There is presidential guidance which takes account of the above, and which is updated from time to time. The relevant guidance applicable to this claim is the sixth addendum which states: In respect of claims presented on or after 6 April 2023, the “Vento bands” shall be as follows: a lower band of £1,100 to £11,200 (less serious cases); a middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band); and an upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.[14]The focus of the assessment has to be on the actual injury caused by the contravention of the Equality Act 2010 ("EQA"), not on an assessment of the seriousness of the contravention(s). That being said, when the Tribunal is considering the evidence which it has received from the Claimant (and any other sources) about the actual injury to feelings, the Tribunal might find that the relative seriousness of the contravention(s) helps it to assess the reliability of the evidence about the asserted effects on the Claimant of the discriminatory conduct.[15]The type of thing that an injury to feelings award compensates for was summarised in Vento as: - An injury to feelings award encompasses subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.[16]Outside the field of discrimination, courts sometimes make awards for personal injury, including psychiatric injury.[17]In Essa v Laing [2004] IRLR 313, the Court of Appeal noted: 4 of 27 41………..Injury to feelings will most frequently occur, of course, without there being a psychiatric illness but both may result from the conduct complained of. They are different, as stated by Stuart-Smith LJ in Sheriff, but they are not, in my judgment, different kinds of damage in the sense contemplated in cases such as Hughes. 42 I agree with the analysis of s.57(4) by Stuart-Smith LJ in Sheriff, with the proviso that while there is a difference between 'injury to health or personal injury' and 'injury to feelings', the two are not inconsistent, may overlap and injury to feelings may contribute to injury to health. In Vento v The Chief Constable of West Yorkshire Police [2003] IRLR 102 an award including sums for both psychiatric damage (clinical depression and adjustment disorder) and injury to feelings was upheld in this court, though that for injury to feelings substantially reduced. Giving the judgment of the court, Mummery LJ commented, at paragraph 63, that during the period of psychiatric disorder there must have been a substantial degree of overlap with the injury to the applicant's feelings. This approach does not support a conclusion that the damages are of a different kind.[18]When assessing the injury, we also have to consider whether(i) any part of the injury was caused by something entirely different, and not by the Respondent at all, or(ii) caused by the Respondent, but not by something for which a claim was brought, or(iii) caused by some act or omission, for which a claim was brought, but where the Respondent’s conduct was not found to amount to a contravention of EQA. It is important to make sure not to award compensation for any such injury, and to only compensate for the injury caused by the complaints of breaches of EQA which we decided – at the liability phase - were successful: Coleman v Skyrail Oceanic Ltd [1981] IRLR 398[19]The claimant does not have to show they knew the treatment was connected to their protected characteristic in order to suffer injury to feelings for the discriminatory act. They only need to know they were subjected to the treatment. However, if the claimant was aware that their protected characteristic was a cause of the treatment they encountered, and especially where the conduct was overtly discriminatory, then that might assist them to show they have suffered serious distress and humiliation.[20]It is not necessary for the claimant to establish that the respondent could reasonably foresee that this type of injury would be suffered: Essa. The relevant question is whether the injury flows from the relevant discriminatory conduct. Personal Injury[21]Employment tribunals have jurisdiction to award damages for personal injuries caused by discrimination, as well as injury to feelings. Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481.[22]A psychiatric illness might have a large number of possible origins or specific causes. It might start, or its progression might be affected, by matters (whether 5 of 27 work-related or otherwise) that have nothing to do with the discrimination suffered. Unless the claimant can demonstrate that the discriminatory acts actually caused the psychiatric damage there will be no compensation under this head.[23]In Thaine v London School of Economics UKEAT/0144/10, a tribunal awarded compensation for injury to feelings and personal injury. The EAT held that where an employee's psychiatric ill-health has been caused by a combination of factors, some of which amounted to unlawful discrimination, but others which were not, it had been open to the Tribunal to discount the employee's compensation by such percentage as reflects its apportionment of that responsibility. The argument that 60% had been too high on the facts was rejected.[24]The Judicial College Guidelines provide guidance on the appropriate levels of awards for pain, suffering and loss of amenity. The Guidelines draw a distinction between psychiatric damage generally (giving categories of appropriate levels of awards for ‘Severe’, ‘Moderately Severe’ and ‘Moderate’) and post-traumatic stress disorder (for which the relevant categories are ‘Severe’, ‘Moderately Severe’, ‘Moderate’ and ‘Minor’).[25]The Tribunal might decide to make a separate award, identifying that it is for the compensation specifically for the personal injury component. However, it would not necessarily be an error of law simply to take the personal injury into account, and make a global award for combined injury to feelings and personal injury. Either way, there must be no double recovery: HM Prison Service v Salmon 2001 IRLR 425. Aggravated Damages[26]There can be an award for aggravated damages where the necessary factors have arisen. Where it arises, it is part of the overall award of compensation for injury to feelings. The award is made as a recognition that the existing injury to feelings has been aggravated further by factors which are in some way related to the act of discrimination but may not necessarily form part of the statutory tort itself.[27]In Alexander v Home Office [1988] 2 All ER 118, the court said: compensatory damages may and in some instances should include an element of aggravated damages where, for example, the defendant may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the act of discrimination.[28]In Commissioner of Police of the Metropolis v Shaw UKEAT/0125/11/ZT, the EAT undertook a review of aggravated damages. It stated that it may be appropriate to make an award of aggravated damages based on analysis of 28.1. The manner in which the discrimination was committed and/or 6 of 27 28.2. The motive of the discriminator and/or 28.3. The discriminator’s subsequent conduct.[29]An analysis of these things might determine that there has been conduct which is capable of being “aggravating”. However, the purpose of analysis is not to determine whether the discriminator acted so badly that they deserve some sort of punishment; it is to consider whether, because of the manner of the conduct, some further injury has been caused to the claimant. Financial Losses[30]The tribunal must act rationally and judicially, when assessing what financial loss has actually been caused by the discrimination, and its approach will always need to be tailored specifically to the circumstances of the case in front of it. In particular, a different approach is required between cases where: 30.1. The claimant is still employed by the respondent 30.2. There was a discriminatory dismissal, which is one of the contraventions for which compensation is to be awarded 30.3. There has been a termination of employment, but that termination is not one of the contraventions for which compensation is to be awarded[31]If the discrimination or harassment has caused such serious psychiatric injury that the claimant is unable to work for a considerable period, the Tribunal will award financial compensation which takes account of that.[32]Where the loss covers the remainder of the complainant’s career, a tribunal should apply the methods used to calculate future loss in personal injury cases, using the Ogden Tables: Kingston Upon Hull City Council v Dunnachie (No.3) 2004 ICR 227. However, that is only where the future loss could be career-long (or for a period comparable to that). If the case If the case is not one of career-long loss, financial losses are using the standard approach.[33]The chances of the employee leaving for fair and non-discriminatory reasons has to be taken into account if making a final award for a discriminatory dismissal (and awarding a loss based on a decision that, but for the discriminatory dismissal, the employee would have remained with the same employer until retirement date is justified only in exceptional circumstances). Whereas, where the issue is not that there was a discriminatory dismissal, but rather that the contraventions of EQA (as upheld by the Tribunal) have prevented the employee from working and being paid, the relevance of the issue of hypothetically remaining employed by the respondent, or else departing for fair and non-discriminatory reasons falls away. Whether having an employment contract with the respondent, or whether with another 7 of 27 employer, or whether being unemployed, the claimant’s assertion is that – because either(i) they are too sick to work at all or else(ii) they can only do fewer hours and/or(iii) earn less per hour – the Respondents discrimination has caused an ongoing loss.[34]In Sharma v University of Portsmouth [2025] EAT 19, the EAT set out the correct approach when considering the hypothetical scenario of the discrimination/harassment not having occurred. Suffice it to say, then, that drawing on the decision of the Court of Appeal in Chagger v Abbey National PLC [2010] IRLR 4:(a) The ET was empowered to order the payment of compensation calculated on a tortious basis. There was also a power to make an award for injury to feelings (see section 124(2)(b) and (6) of the Equality Act 2010 read with section 119(2) and (4));(b) The burden was on [the Claimant] to prove her case on loss and injury;(c) The task of the ET was, as best it could, to put her in the position in which she would have been but for the discrimination which it had found to have taken place;(d) The ET was therefore required to envisage a hypothetical world in which the discrimination which it had identified had not taken place and ask what would have happened, and in relation to the claim for loss of earnings, what [the Claimant] would have earned, before comparing this with what she was now likely to earn as a result of the acts of discrimination which had taken place;(e) What the ET could award was not constrained by reasonable foreseeability. It was required to compensate her for the losses which flowed directly and naturally from [the Respondent’s] tortious acts;(f) However, the ET was also required to consider the chances that [the Claimant’s] losses would have been sustained in any event, or as a result of lawful conduct by [the Respondent], or would not ultimately have been sustained, and to make percentage deductions accordingly; and(g) The ET’s task of assessing future loss therefore necessarily involved a degree of speculation, doing the best it could, on the basis of the evidence which it had. Mitigation[35]When assessing alleged loss of earnings, we apply the same rules concerning the duty of a claimant to mitigate their loss as apply to damages recoverable under the common law. Where the employee has mitigated, a tribunal should give credit for sums earned.[36]When assessing the amount of deduction for the employee's failure to mitigate their loss, the tribunal does not reduce the award that it would otherwise make by a percentage factor. The correct approach is to make a decision - on the balance of probabilities - about the date(s) on which the Claimant would have found work (and/or work at higher income than they actually obtained) had they been acting 8 of 27 reasonably to seek to mitigate their losses, and then make an assessment of what income they would have had from such work.[37]So the approach is: 37.1. Consider what steps it would have been reasonable for the claimant to have had to take to mitigate their loss; 37.2. Ask if the claimant failed to take reasonable steps to mitigate their loss; 37.3. Decide to what extent would the claimant have mitigated their loss had they taken those steps[38]It is for the Respondent to prove that the Claimant has unreasonably failed to take appropriate steps, and that – on balance of probabilities - had those steps been taken, then the losses would have been mitigated. Other Financial Losses[39]In accordance with the usual principles of assessing damages for tort, the Tribunal can award compensation for additional expenses that the claimant incurred as a result of the contraventions of EQA. This might include costs of medical treatment, etc. It is for the claimant to prove the loss. Past losses[40]The Tribunal can award interest on awards made under EQA. This can be on the general damages (injury to feelings, personal injury, etc) as well as on the financial losses occurring prior to the remedies hearing. (No interest is applicable in relation to future loss). ACAS uplift[41]The ACAS Code of Practice on disciplinary and grievance procedures must be taken into account by the employment tribunal if it is relevant to a question arising during the proceedings.[42]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, 9 of 27 the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.[43]So, a failure to comply with a Code has to be an unreasonable failure for this provision to have effect. Some failures might not be unreasonable, and so that is one of the decisions the Tribunal has to make.
Findings of Fact
[44]We do not intend to quote extensively from the liability decisions and reasons. However, we have taken those decisions and reasons fully into account when deciding the remedy issues.[45]If, and to the extent that, either party has sought to make remedy submissions that invite us – expressly or by implication – to make findings of fact that contradict, or are inconsistent with, findings of fact which we already made in the liability reasons, we reject those submissions. The only routes to having us change those findings of fact would have been to successfully apply for reconsideration, or to successfully appeal to the Employment Appeal Tribunal.[46]In terms of events during the remedy hearing (and generally during the litigation), we have taken account of the guidance of the EAT in Habib v Dave Whelan Sports Limited T/A DW Fitness First: [2023] EAT 113[47]In summary, while it is the Tribunal’s duty to find facts, and that will include deciding whether to believe the oral evidence of witnesses, the interests of justice require that the Tribunal be extremely cautious about assuming that a witness’s oral evidence is untruthful or evasive if the witness’s demeanour or phrasing could be attributed to disability rather than a lack of frankness.[48]The Claimant stated numerous times on 21 March and 14 July that he objected to certain questions, either because - according to him – the question was treating him as a neurotypical person, and/or because he thought the question was challenging his integrity. Those comments have not been held against him; that is, we have assessed his credibility without treating those answers as an attempt to be evasive. That is so even though the questions that were put to him were all phrased courteously and professionally, and were questions that the Respondent was entitled to put as part of the reasonable conduct of its defence.[49]We have also taken into account that the orders sent to the parties on 27 February 2024, [Bundle 34 main hearing] included: The claimant shall set out in writing what remedy the Tribunal is being asked to award. 10 of 27 The claimant shall send a copy to the respondent. The claimant shall include any evidence and documentation supporting what is claimed and how it is calculated. The claimant shall also include information about what steps the claimant has taken to reduce any loss (including any earnings or benefits received from new employment)[50]The orders for the remedy hearing included [Remedy Bundle 259] .. full details of 3.7.4.1. the Claimant’s subsequent employment (or any other work). 3.7.4.2. The search for employment, including details of jobs applied for, rejections received, reasons for not accepting job offers, if any, reasons for not seeking work[51]We are satisfied that the Claimant knew that, as part of the remedy assessment, his search for work would be a relevant factor. We are satisfied that he knew that he had to look for documents about his job search and also give truthful evidence in his written statement.[52]Some of the job applications in the bundle, for example [Bundle 238], relate to periods before starting work for the Respondent and so we do not accept that the Claimant was unable to trace records of having made job applications on-line from August 2023 onwards.[53]We do accept that not all employers send rejections. The lack of many specific replies to applications does not count against the Claimant’s credibility.[54]We also note that the DWP has been satisfied with his attempts to find work for their purposes – see [Bundle 467] - and that the Claimant did take part in the arrangements which they made to assist him find work (albeit without success).[55]The Claimant’s contract of employment with the Respondent required him to work shifts. All the shifts that were discussed in the liability hearing were overnight. Typically they started around 6pm or so and finished in the morning of the following day. They sometimes lasted longer than was appropriate in the Claimant’s opinion, according to the evidence he gave at the liability hearing (and comments he made in contemporaneous phone calls).[56]We have not been satisfied that there was a formal agreement that the Claimant only work nights. That was not stated in his witness statement for either hearing.[57]On 21 March, when the Claimant was being asked about his criteria for the jobs he would apply for, he did not state that he was only applying for night shifts. He 11 of 27 did not say that in his written statement for that hearing either. On the contrary, he said that his criteria were that it had to be possible to get to the job using public transport. On being asked to clarify, he answered that most HGV jobs start before TFL open (ie before the public transport network is operating). He said he knew this because he had tried to work at Heathrow and the connections that he needed were not in service in time for him to get there for the required start time.[58]Our finding is that his evidence at the 21 March hearing is inconsistent with his assertion on 14 July(i) that he was only looking for night shift work and(ii) that this was reasonable because of personal circumstances.[59]If it was true that he was only looking for night shift work, it would have been irrelevant that HGV jobs (in the Claimant’s opinion) required arrival on site early in the morning before buses and trains started running. For a night shift job, he would have been travelling to start the shift while the transport network was operating normally. This answer cannot be attributed to a mistake (whether connected to disability or otherwise). He was specifically being asked to clarify what he meant when he had said that the availability of public transport was a factor in which jobs he would consider. We are satisfied that he understood the question and he gave a deliberate answer that he wanted the Tribunal to accept was true. That is, he wanted the Tribunal to find that he had been looking for HGV jobs and that he was potentially willing to consider such jobs that required an early morning start, and that the fact that there were few applications for such jobs was because of lack of early morning public transport to some locations.[60]If it was true that the Claimant was actually only willing to accept night work, then that is a fact that was concealed in his witness statement and oral answers on 21 March.[61]However, our finding is that it is not true that, at the time, the Claimant thought that the only jobs he would apply for were night shifts. For example, the application on 25 August 2023 [Bundle 212] was for patient transport, and there is nothing to suggest it was night work only. Same for the advert on [Bundle 213][62]We accept that some jobs in the bundle did specify nights. We also accept that one option an applicant has is to apply for the job, potentially be interviewed, and seek to arrange night shifts if offered the job. However, if it were true that the Claimant was interested in night shifts only, and intended to apply for work, and only reveal the conditions of “nights only” after receiving an offer, then it is still true that there is a notable lack of job applications, regardless of whether the advert specified “night work” or otherwise. In any case, the adverts that he has put forward (as jobs that he says he applied for) do not demonstrate that he sifted through adverts and only applied for night work. 12 of 27[63]In the first few weeks following the Claimant’s dismissal he applied for four roles between 25 August 2023 – 5 September 2023 [Bundle 212 – 214 and 360].[64]There was the a gap during which the Claimant did not apply for any roles. The Claimant applied for one role on/around 24 October 2023 as a HGV Driver [Bundle 238].[65]There was another gap before the Claimant began applying for roles again on/around 6 December 2023 when he applied for a Recovery Driver role.[66]For the advert on [Bundle 360], the recruiter tried to contact the Claimant [Bundle 361]. The Claimant has not provided any documents showing a reply from him and did not mention a reply in his written statement. Orally he said that he did phone back and decided that the job was not suitable because it did not offer nights. Our finding is that the Claimant did not call back. Firstly, our finding is that – as of Day 1 of the remedy hearing – it was not initially the Claimant’s evidence that he was only willing to work nights. His evidence on that point changed between Day 1 in March 2025 and Day 2 in July 2025. Secondly – and regardless of whether we are right or wrong about that – we are satisfied that, if he had made further enquiries, and found out that the job was not suitable for him, he would have said that in his witness statement. We accept that the Claimant is litigant in person and that he has a disability, but we are also satisfied that the Claimant, with assistance from his wife, knew that preparations for this remedy hearing required him to give details of what discussions he had had about potential work, and about why he had not started new work.[67]So, for the remainder of 2023, after dismissal by the Respondent, the Claimant only applied for around 6 roles.[68]For some of this period, we accept that the Claimant was acting as a full-time carer for his daughter. We accept this even though his witness statement did not refer to it and documentary evidence has not been provided.[69]This was a period of approximately 6 weeks or so around October 2023. If the Claimant had not been dismissed by the Respondent, he would have been unable to work for the Respondent in the (approximately) 6 week period that he was acting as full-time carer. He would either have had to take unpaid leave from the Respondent or a combination of annual leave, paid carers leave (if any such leave would have been available), and / or make arrangements for Time Off In Lieu (that is work extra shifts before or after the period of absence).[70]For calculations of loss, we have not made any deductions to the assessment of what the Claimant would have earned (but for the discriminatory dismissal) to reflect any lack of remuneration / reduction of remuneration in the period that the Claimant was acting as full-time carer for his daughter. We heard no detailed submissions from either side as to what his actual earnings from the Respondent 13 of 27 would have been in that period (if not dismissed), and it is not impossible that – by arranging annual leave, and TOIL, and swapping shifts around, he would have been able to avoid loss of earnings for the period he was unable to work.[71]We are not persuaded that the Claimant looking after his daughter in that period would have prevented him searching for potential work and replying to adverts. We are satisfied that there would have been intervals of time in which he could have carried out job searches / applications on-line and by phone, while at home and looking after his daughter. We accept that he would not actually have been able to commence work in a new job during that 6 week period, but that would have been no reason to refrain from trying to line up a job to start promptly after the end of the period in which he was acting as a full-time carer. The Claimant made some job applications in 2024.[73]We note the contents of the Claimant’s application to Ryanair in November 2024. He stated that his salary expectations were £150,000 per year. We do not accept that he thought that was a reasonable thing to write. His oral answer in crossexamination was that he thought his skills were worth that, but even if that is correct, and even taking account of his autism, we are satisfied that the Claimant knew the question required to give a rough idea of the salary that he would be willing to accept. While there is nothing wrong with asking for an amount that is on the high side of the market rate for the job in question, we are satisfied that the Claimant knew that the employer would not contemplate that amount. We are satisfied that he was not putting this forward as a genuine starting point for a negotiation, and that he knew that the sum was out of the question.[74]Furthermore, the answer that the Claimant inserted the figure of £150,000 as a genuine answer to the question is inconsistent with his other remarks about that figure. He also said that he wrote “£150,000” as a protest because he did not think that the recruiter should have included that question on the application form. This assertion shows that he did not think £150,000 was the answer that someone would give to the question if they were being reasonable, and if they were trying to show a prospective employer that they had realistic expectations. Rather this answer – if true – demonstrates that he thought the recruiter would see the figure of £150,000 and would realise that the applicant was not giving a serious answer to the question.[75]In relation to this particular application, the Claimant was not doing his best to get the job, and he knew at the time that he was not doing his best to get the job.[76]The Claimant has also asserted that he has sifted adverts / potential vacancies, by checking to see if the recruiting organisation was on government lists of organisations which are seen as disability friendly in some way. This is not 14 of 27 something that is in his written statement, and is not something that he mentioned on 21 March 2025.[77]To extent that the Claimant argues that it is not unreasonable for him to fail to apply for vacancies if that prospective employer was not on some government accredited list, we do not accept that is a truthful and accurate explanation for any particular failure to apply for any particular vacancy. If that was a criteria that he was genuinely applying, he would have mentioned it in his witness statement. (Again, we have taken the Claimant’s disability into account before making this finding.)[78]We do not believe it to be true that he was actually researching vacancies, then carrying out the search of the type he described in order to see what accreditations that organisation had. Even apart from the fact that he has shown us no evidence of such searches being carried out which led him to decide not to apply for a particular vacancy, we have also not been provided with evidence about the results of searches into the organisations to which he did apply.[79]The Claimant had ample opportunity to make this assertion in answers to the questions put to him on 21 March, if it was actually true. We are satisfied that the Claimant came up with this purported explanation later than 21 March 2025, and gave it in his oral answers on 14 July 2025, in an attempt to explain away the fact that there was such a low number of job applications. Analysis and Conclusions Mitigation[80]The Respondent has proven that the Claimant has failed to take reasonable steps to mitigate his loss. In particular, the Respondent has shown that the number of applications that were made were much lower than would reasonably be expected of someone who was out of work and who was seeking to obtain a new job that would provide them with a similar income stream to that which they had had in the job that they had lost.[81]We have taken into account that we must not to apply too demanding a standard to the Claimant; after all, he is the victim of the wrongs that we identified in the liability decision. The fact that he left the Respondent’s employment on the termination date is because there was a discriminatory dismissal.[82]However, as well as the low number of applications generally, the Respondent has also shown that there was a lack of response to Angel Recruitment in December 2023 and a failure to complete the application form to Ryanair seriously in November 2024.[83]As set out in the liability reasons, the Claimant worked for the Respondent from March to August 2023, so not a long period of time. For someone in their 50s, who 15 of 27 has had a variety of “jobs” (using that term loosely to include self-employed work and agency work) during their working life, when they leave a job that they have held for about 5 months, our assessment is that it is reasonable to expect that person to start looking for new work pretty much straight away.[84]It would not necessarily be unreasonable for someone who had suffered a discriminatory dismissal to spend – say – a week or so in attempting to persuade the employer to reverse the decision, or to get over the shock of the discriminatory dismissal.[85]In this case, the earliest of the applications made by the Claimant were in August 2023, but he failed to make applications at a reasonable rate from then on.[86]The Respondent has shown that – throughout the time period from the dismissal date to the remedy hearing date – there have been a large number of vacancies in the UK for drivers with qualifications possessed by the Claimant.[87]We have considered the documents each side put into the bundle, and commented on. We note that it is the Claimant’s argument that the peak of the demand for drivers was prior to 2023 and the number of vacancies available had reduced since that peak. However, even on the figures relied on by the Claimant, 20% of employers in that sector were looking for new drivers. Even if that is a comparatively smaller percentage than in years prior to that, in absolute terms, it is still a very high number of potential employers who were looking for drivers.[88]We do not proceed on the basis that Mr Smith accurately counted a precise number of vacancies available to the Claimant. His search methods are likely to have resulted in counting some vacancies more than once, and some of the vacancies would have required a commute that was longer than we would have considered reasonable. However, we are entirely satisfied that the number of vacancies (within reasonable commuting time) each month vastly exceeded the number of applications made by the Claimant and that it was an unreasonable failure to attempt to mitigate by the Claimant that he made so few applications. Our assessment is that 10 or 20 applications per week (on average) is the lowest reasonable number of applications that the Claimant ought to have made. At the very least, even if he was highly selective in the first few weeks, then well before the end of 2023 he ought to have increased the number of applications to 10 or 20 per week if he was making a serious effort to obtain new employment.[89]We take into account the Claimant’s arguments that there were things that counted against him in the job market. He says these were a combination of:(i) the dismissal reason which the Respondent had given him (and which therefore would need to be disclosed to prospective new employers);(ii) the short duration of his employment with the Respondent. 16 of 27[90]In itself, a belief that some employers might see those things as a reason to be reluctant to employ the Claimant would not be a good reason to make fewer applications. On the contrary, it would potentially be a good reason to make more applications. However, they are things that we take into account when deciding how quickly the Claimant would have been able to get a new job had he made reasonable attempts to mitigate his losses. 90.1. In terms of the fact that the Claimant’s employment with the Respondent lasted only 5 months, that would not necessarily be a barrier to being offered a job. The Respondent offered the Claimant a job, and had not been dissuaded by the fact that his employment history was not solely filled with long periods of employment with a single employer. He had had periods of: agency work; being a full-time parent; being self-employed. There is nothing unreasonable about any of that, of course, but we do not think that the fact that the Claimant’s employment with the Respondent was for 5 months (rather than longer) would significantly alter the impression that his employment history would give to a prospective employer. We do not think that the pattern of work history is particularly unusual, such that it would be treated by employers as a reason to decline to offer the Claimant a job (especially given that, as with the Respondent, many employers use a probation period which allows them to assess suitability for themselves). 90.2. In any case, our decision is that if some employers would decide not to offer the Claimant a job because he had not lasted long with the AA, many would not take that approach. The more applications a person makes, the more chance there is that they will find a prospective employer that is not deterred by any particular features of the candidate’s employment history.[91]Our overall assessment is that if the Claimant had made reasonable attempts to find work, starting promptly following his discriminatory dismissal, and maintain a regular number of job applications, then, within 6 months of the termination date, he would have been appointed to, and started work in, a job which offered a similar level of income, pension and other benefits, to those that he had with the Respondent, and also offered similar shift patterns, and was within a reasonable commuting distance from his home. Contributory Fault[92]The Respondent submits that we should make a reduction to the compensation that we would otherwise order to reflect contributory conduct.[93]In accordance with normal tort principles, it lies within our power to do that. In all the circumstances of this case, including the decisions we have made in relation to failure to mitigate, and the Chagger assessment set out below, our assessment is that a reduction for contributory fault is not appropriate in this case. 17 of 27 Personal Injury[94]The Claimant has not proven that he has suffered a personal injury as a result of the contraventions of EQA which we identified in the liability decision.[95]It is not the case that an Employment Tribunal can only find in a claimant’s favour if there is evidence from an expert witness or treating clinician.[96]However, to the extent (if at all) that the Claimant suggests that diabetes has been caused by, or worsened by, the Respondent’s contraventions of EQA, our decision is that causation has not been proven.[97]We have noted the GP entry relating to 11 September 2023 [Bundle 462] and that that date is within a month of termination of employment. However, there is insufficient evidence for us to conclude that there is any link between the matter referred to in that entry, and the Respondent’s discriminatory treatment of the Claimant.[98]Similarly, we note paragraphs 31 to 33 of the Claimant’s witness statement, and the corresponding entries in the GP record for 24 and 28 January 2025, but we are satisfied that the GP is not recording a medical condition that has been caused by, or exacerbated by, the Respondent. Life Insurance[99]We agree with the Respondent that this should not be awarded as a separate head of loss. The benefit in question was part of the Respondent’s pension scheme, and we will be making an award in relation to loss of pension benefits. Car Breakdown Cover[100]We will make an award in relation to this loss. There has been limited evidence about the actual expenditure by the Claimant in replacing this benefit, but we are willing to assess the loss as being of £148 per year. Chagger[101]As per our liability decision, what happened on 23 August 2023 was discriminatory. We decided that, rather than dismiss the Claimant that day, the Respondent ought to have done something else.[102]To avoid disability discrimination on 23 August 2023, the things the Respondent should have done included taking steps to see what arrangements could be made to assist the Claimant with his interactions with colleagues, and to see what could be done to reduce the frequency with which the Claimant was deallocated from one particular recovery and allocated to a different one. 18 of 27 102.1. We commented on Tarbuck v Sainsburys in paragraph 50 of the liability reasons. In terms of the duty to make reasonable adjustments, if there is no obligation to take a particular step to alleviate a disadvantage, then there is no breach merely because the Respondent failed to investigate whether it had such an obligation. 102.2. The duty is not a duty to discuss the possibility of adjustments. 102.3. The Tribunal’s decision has to be a binary one. Either the duty to take a particular step existed and failing to take that step was a breach of the duty (regardless of whether taking the step was discussed with the Claimant or not) OR the duty to take a particular step did not exist and failing to take that step was not a disability discrimination within the definition in section 21 EQA, (regardless of whether taking the step was discussed with the Claimant or not).[103]In paragraphs 239 to 266 of the liability reasons, we explained why the dismissal was discriminatory and why there was failure to make reasonable adjustments. We heard from Mr Townsend at the liability hearing, and from each of Mr Townsend and Mr Smith at the remedy hearing. Regardless of their opinion of why it would be difficult to have made adjustments to the Respondent’s work allocation systems, we are satisfied that that making adjustments for the Claimant was reasonable. We are satisfied that the alleged difficulties have been massively overstated and it is notable that the Respondent did not choose to call a witness who was responsible for the system itself.[104]As stated in the evidence, at any given time, the Respondent is likely to have a few hundred recovery patrols on duty, so to the extent that it is suggested that applying a manual override in the Claimant’s case, so that he would stay on a particular job – rather than that job be reallocated to another patrol – would cause extra disruption to the other recovery patrols, we do not accept that. It is simply not plausible that keeping the Claimant on specific jobs would cause noticeably more frequent / disruptive reallocations for everyone else. For sure, there would be one less person, out of the hundreds, available to the software for it to use for reallocation, but that one less person would not cause others to have many more changes than they would otherwise have had. When there is a cohort of hundreds of employees due to be on duty, the likelihood is that one or more might phone in sick before the start of the shift, or go home sick during a shift. The extra work that has to be accommodated because of any one person’s absence does have to be accommodated, but the additional workload is spread around.[105]The Respondent also seeks to argue that making this adjustment would cause health and safety risks to its customers, or cause appreciable delays (on average, presumably) to its customers. We are not satisfied of those things on the evidence presented to us. The computer would still be handling hundreds of jobs at any one 19 of 27 time, and distributing the work between hundreds of employees, and we are not persuaded that simply locking the Claimant on to particular jobs would make such a large difference to the Respondent that it was not reasonable for it to have to make this adjustment for the Claimant. In particular, on the evidence, the Respondent would not have had to do manual overrides for every single job that was allocated to the Claimant. There just needed to be a system in place such that, if the Claimant had had several changes within a short period of time, he could contact the allocators and be locked on to the current one.[106]Furthermore, as the Respondent accepts, some jobs were taken out of the computerised allocation system, and outsourced. When that happened the outsourced job was effectively “locked on” to the relevant contractor. The adjustment required for the Claimant would not be more disruptive to the Respondent’s overall allocation of tasks than outsourcing a particular job.[107]If it were true that there was no way of having a senior dispatcher monitor the work allocated to the Claimant remotely, and intervene with a manual override where needed, then the Respondent needed to have a system in place that the Claimant would be able to contact someone by phone to request it. The Respondent’s arguments that only very senior people could authorise manual overrides, and it might not be possible to contact them, and/or might be too disruptive to contact them, is not an impressive one. The evidence does not persuade us that permission for a dispatcher to lock the Claimant onto a particular job could not have been pre-authorised or delegated.[108]In the liability reasons, one of the matters we said could have been investigated was whether a small group of staff could have been designated as the people that the Claimant would always speak to when he needed to contact the indoor team. That was against the background of the Claimant having stated in the litigation that he had concerns that his affairs seemed (to him) to have been a topic of conversation within the team. If confidentiality was a concern to the Claimant, but it was also necessary to brief people to make allowances for the Claimant’s manner of speaking, the solution – we wondered – might be to have specifically designated employees. The Respondent said that that would not be possible. However, since the Claimant says that, in fact, he would not have objected to people knowing about his disability if it was part of making reasonable adjustments, the issue falls away. We are satisfied that the Claimant would have confirmed this to the Respondent in August 2023 if the discussion had taken place then.[109]So rather than terminate the Claimant’s probation/employment on 23 August 2023, the Respondent could – if it had concerns about the Claimant’s conduct or performance – have extended that probation and given him clear warnings / guidance about what was needed, and also put in place some adjustments for him. (Whether the adjustments could have been implemented with immediate effect on 23 August rather depends on whether – in this non-discriminatory scenario, the 20 of 27 Respondent had taken steps prior to the 23 August meeting, to decide what was needed and what could be done. However, we are satisfied that, if not implemented on 23 August, they could have been implemented promptly afterwards.) For the Claimant to be put in the position that he would have been in if there had been no disability discrimination on 23 August, we have to assess what would have happened if the Respondent had refrained from dismissing him on that day, and taken the steps we have mentioned above instead.[110]Mr Townsend confirmed at the liability hearing that there were no performance concerns in terms of the Claimant’s main duties of attending to customers’ vehicles etc. Mr Townsend said that the reason he had not had more meetings with the Claimant is that things were progressing reasonably well (other than the tacho discussions we mentioned in the liability reasons) and he had fully expected the Claimant to pass his probation until the issues about phone calls with colleagues arose.[111]As we said in the liability reasons, it was not unreasonable for the Respondent to have had concerns about the way some staff (on the indoor team) were spoken to by a colleague (the Claimant). It would have been reasonable and nondiscriminatory to have warned the Claimant about this and told him that he needed to make improvements (albeit, as we have said, the Respondent also needed to make reasonable adjustments).[112]We listened to some of the phone calls, and we had transcripts of the ones we listened to and others. It is not necessarily simple and straightforward to imagine how future phone calls would have turned out, following (a warning to the Claimant and) reasonable adjustments, but that is the task we have to perform. This is because we are satisfied that if the Claimant continued to speak to colleagues in the same way that he had sometimes done previously, then there could have been a decision by the Respondent to fail the Claimant’s probation / dismiss the Claimant that was not discriminatory.[113]In the phone calls, the Claimant had raised his voice, and he had sought to talk over the other person. We note that Mr Townsend considers that the Claimant had made “threats”. We made our own assessment in the liability reasons, and do not need to repeat everything that we said there. It is certainly true that the Claimant used “colourful” language that many employers would regard as inappropriate when used by one employee to another during a shift (especially) during a work-related conversation. Further, even if said by way of jest, comments by one employee about dropping another employee on their head, do not have to be tolerated for prolonged periods of time if there is no improvement.[114]Our assessment is that if there had been no discrimination, then there would have been no dismissal within 3 months of 23 August, because that would have been the time to implement adjustments, and to assess whether the Claimant’s 21 of 27 behaviour to colleagues improved. However, there is a 50% chance that there would have been a non-discriminatory dismissal after 3 months.[115]So we will award the Claimant 100% of financial losses for the first 3 months, and 50% thereafter.[116]We do not apply this reduction to the injury to feelings award. The injury to feelings was initially suffered on 23 August. We will comment on its duration below, but the fact that there could have been a non-discriminatory dismissal in the future did not reduce the impact – on 23 August 2023 – of the discriminatory dismissal. Injury to feelings[117]We set out the relevant law above. For the reasons we are about to give, our assessment is that this is a lower Vento band case, albeit one towards the top of the lower band.[118]We take into account the fact that, on joining the Respondent, the Claimant had been led to believe that the fact that he had autism, and the fact that he was open about having autism, would be treated sympathetically/appropriately.[119]We take into account that the Claimant had had a good working relationship with his first manager, Mr Savill. Further, in around April, the Claimant was highlighted on Yammer as someone who was having a good experience working with the Respondent.[120]So all those things, but especially the fact that the Respondent was effectively advertising itself internally – and using the Claimant to help do so – as a disabilityfriendly employer, stood in stark contrast to the way in which the Claimant was treated in August, exacerbated the injury to the Claimant’s feelings. His expectations had been built up, and he was let down.[121]As part of that, we take into account the Claimant’s evidence that he was hoping that this would be a long term job. However, we also take into account that it had lasted 5 months in total and that the Claimant had had various other jobs in the past.[122]He was understandably upset to lose the job and we note that in paragraph 48 of his statement, he described the effects as being very serious indeed.[123]It is for those reasons that we regard the appropriate figure as being towards the top of the lower band. However, we have not been persuaded that those serious effects lasted a long time. In particular, we are satisfied that injury to feelings from the discriminatory dismissal did not cause the Claimant to be unable to apply for new jobs. 22 of 27[124]We are not satisfied that injury is such that it crosses the threshold into being a middle Vento band case. The appropriate sum is £11,000. Calculations[126]We have payslips in the bundle. 126.1. August 2023 [Bundle 206] is not useful for calculating normal pay because it includes payments attributable to termination 126.2. March 2023 is not useful because it is the month during which the Claimant started work 126.3. April is [Bundle 210], May is [Bundle 209], June is [Bundle 208] and July is [Bundle 207].[127]In a typical month (for example, July) the Claimant’s gross basic pay was £2360. The annual was £28,320.[128]In July, there is a gross sum (£717.03) which is a deduction for “AA lease salary exch”. So the Claimant’s actual earnings for that month are found by adding that deductions back on. Tax and NI deductions that month were around 16.99% of gross, so the net figure to add back on for “AA lease salary exch” would be [£717.03 – £121.79 =] £595.24.[129]The average net figure per month (calculated by using the payslips for April to July and taking into account the adjustment just mentioned) was £2254.42. The gross average was £2815.[131]Employer’s pension contribution was 3%. So we take that to be £84.47 per month on average.[132]So the aggregate of net salary plus employer’s pension contributions is £2254.42 plus £84.47 = £2338.89 per month.[133]We are awarding 3 months at 100% of the loss. So 3 x £2375.89 = £7,016.67[134]We then add breakdown cover, which is £148 per year, so £37 for 3 months, which is £7,053.67.[135]The Claimant has to give credit for the sums received by way of Universal Credit, and those are: £681.69 for October and £1112.15 for November.[136]So for the period for which we are awarding 100%, the net figure is £7,053.67 - £681.69 - £1112.15 = £6,259.83. 23 of 27[137]We have then taken the whole months December, January, February to estimate the loss for the fourth, fifth and sixth month following dismissal (the calculation is not exact, because the Claimant’s dismissal date was 23 August, and there was a week’s payment in lieu of notice, but it is a good enough approximation). 137.1. The aggregate loss is again £7,053.67. 137.2. The deductions for Universal Credit are £692.47, £1184.99 and £1419.31. 137.3. After those deductions, the loss for those months was £3,756.90.[138]However, we only award 50% of the loss for those months, so £1,878.45[139]The financial loss is therefore £6,259.83 + £1,878.45 = £8,138.28 Interest on financial loss[140]We take the mid-point of that 6 month period for which we are awarding loss, and we award interest at 8% per annum from that mid-point to today (which is 624 days).[141]The interest calculation is: £8138.28 x 0.08 x 1/365 x 624 which is £1113.05. Injury to feelings plus interest The injury to feelings award is £11,000.[143]We award interest on that from the dismissal date to today’s date (692 days)[144]The interest calculation is £11,000 x 0.08 x 1/365 x 692 = £1,668.38 ACAS Uplift[145]In the liability reasons, we discussed the correspondence which we labelled as a “grievance” (see paragraphs 75, 86, 99 and 264, for example).[146]We decided that the Respondent’s HR department knew about the grievance prior to dismissal, and we also decided that the person who made the decision to dismiss (Mr Townsend) did not know about it (see paragraph 66 of the liability reasons).[147]The requirements of the ACAS code for grievances include: the employer must try to understand the grievance; usually there should be a meeting/hearing at which the contents of the grievance can be explored (and, if necessary, clarified); there should be a clear outcome, which usually should be in writing; there should be some type of appeals process. None of those things were done in this case. 24 of 27[148]Our decision is that the requirements of the ACAS code did apply, because the communications (sent by his wife, but, as the Respondent knew, sent on the Claimant’s behalf and with his authorisation) did amount to “concerns, problems or complaints” that the employee had raised with his employer. There was a failure to comply with the requirements of the ACAS code, and so we need to decide whether that was an unreasonable failure.[149]The Respondent points out the following: 149.1. The grievance communications sent before dismissal did not specifically refer to the upcoming probation meeting. 149.2. After the Claimant was dismissed, he was an ex-employee rather than a current employee. That is, he became an ex-employee before any grievance meeting was arranged. 149.3. Taking into account data protection requirements, the persons in receipt of the grievance communications did as much as they could. The Respondent says that there was no unreasonable failure to comply with the Code in those circumstances.[150]We certainly do not agree with the submission about data protection requirements. The Claimant did clearly inform the Respondent that he had authorised his wife to communicate on his behalf. It was reasonable for the Respondent to require the Claimant’s written consent (indeed, they were obliged to seek that), but they did receive it. If there was then going to be some other reason for refusing to deal with what Mrs Lloyd-Penny submitted (such as that she was not a union representative, or work colleague, for example), then it was incumbent on the Respondent to make it clear to the Claimant that there was something else he needed to do in order to comply with the requirements of any grievance policy/procedure; as far as this Tribunal is concerned, the words used, and the fact that the communications were sent to the HR department, were clear enough.[151]The Respondent has sufficient resources that it should be expected to be aware of the existence of, and contents of, the ACAS Code of Practice on disciplinary and grievance procedures.[152]We do accept that, if the probation meeting was not postponed, there would not have been sufficient time to be able to deal with the grievance (or the first stage, not including appeal) prior to the probation meeting. We also accept that the Claimant did not ask for the probation meeting to be postponed pending investigation of the grievance.[153]The circumstances are that – pre-dismissal – the Claimant made complaints about the way that - according to him – he was being treated by a particular manager (as 25 of 27 per paragraph 85.5, Mr Townsend was not named, but it was clear that he was the person being referred to). That manager dismissed the Claimant shortly after those complaints (and, to repeat, Mr Townsend was unaware of the complaints – there is no suggestion that he dismissed the Claimant because of the “grievance”). In those circumstances, our decision is that it is an unreasonable breach of the ACAS code to fail to take any steps to deal with the grievance, and we do not agree with the Respondent’s arguments to the contrary. In particular, even though the grievance was raised shortly before the Claimant’s employment was terminated, given the specific nature of the allegations made, it was unreasonable to fail to consider whether there was any merit in the allegations, notwithstanding the fact that the manager in question had terminated the Claimant’s employment.[154]There was effectively a complete failure to comply with the Code. However, taking into account the timing of the grievance (shortly before the probation meeting, and just before – therefore – the end of employment), we do not think that it is appropriate to award the full 25%. Our assessment is that a 10% uplift is appropriate and proportionate. Aggravated Damages[155]In our judgment, the Claimant falls well short of the threshold for demonstrating an entitlement to aggravated damages. None of the questions that he was asked during the hearing were improper and nor was it unreasonable for the Respondent to deny the allegations and mount a defence to them. We are aware that the Claimant does feel “aggravated” (speaking loosely) by the things that we decided amounted to discrimination, but our injury to feelings award of £11,000 already takes that into account. Recommendations[156]In terms of recommendations, as per the current version of the legislation, we can only make recommendations for things which we decide would be a means of obviating or reducing an adverse effect on the Claimant.[157]Bearing in mind that the Claimant is an ex-employee (not a current employee), we do not think that any recommendation which required the Respondent to draw the judgments or reasons to the attention of any particular person would obviate or reduce any adverse effect on the Claimant of any matter to which these proceedings relate. It is therefore entirely a matter for the Respondent, and not for this Tribunal, to decide which internal people or departments (if any) need to have this judgment drawn to their attention.[158]We do not consider that it would be unduly onerous for the Respondent to have to send copies of vacancies to the Claimant. In the course of the hearing, we heard that the Respondent has had some vacancies from time to time. We make no comment (and nor would it be appropriate for us to do so) on the likelihood of either 26 of 27(i) the Claimant applying for vacancies or(ii) the Claimant being appointed if he applies. However, we consider that the adverse effects of the dismissal would be potentially obviated if the Claimant is made aware of vacancies, and at least – therefore – has the chance to make a decision about whether or not to apply.[159]Thus we make the recommendation set out in paragraph 10.1 of the judgment.[160]In terms of what information is held on the Claimant’s personnel file, we do not propose making any recommendation about what should be recorded as the termination reason. The Employment Tribunal has already given judgment to the effect that there was a discriminatory dismissal.[161]There does not seem to be any reason for us to find that the Respondent has failed to reply to any reference request that it has received. The assertion that no reference requests had been received was not challenged during crossexamination.[162]However, we consider that the adverse effects of the dismissal would be potentially obviated if the Respondent did respond promptly if and when any reference requests are received in the future. If the Claimant does receive employment offers, then it will assist him to start work as soon as possible if the Respondent responds promptly to any reference request. It is for the Respondent, and not us, to decide what the contents of the reference would be; we acknowledge that, when supplying a reference to a prospective employer, the Respondent would have a duty owed to the recipient of the reference, as well as to the Claimant.[163]Thus we make the recommendation set out in paragraph 10.2 of the judgment.