Judge Bartlett, Mr Wharton and Mr BoustredIn person for claimantMs Andrew for respondentDate 23 April 2025
JUDGMENT
[1]The claimant’s claims for Direct Disability Discrimination fail.[2]The claimant’s claims for Discrimination Arising from Disability fail.[3]The claimant’s claims for Indirect Discrimination fail.[4]The claimant’s claims for Failure to make Reasonable Adjustments fail. Approved by:[1]The claimant’s claims for Direct Disability Discrimination section 13 Equality Act 2010 fail.[2]The claimant’s claims for Discrimination Arising from Disability Section 15 Equality Act 2010 fail.[3]The claimant’s claims for Indirect Discrimination Section 19 Equality Act 2010 fail.[4]The claimant’s claims for a Failure to make Reasonable Adjustments Sections 20 & 21 Equality Act 2010 fail.
REASONS
[1]The claimant was employed by the respondent from 3 October 2022 until 15 May 2024. He was employed as a senior business development manager. The respondent is a business that sells technology such as dash cams for commercial vehicles.[2]The claimant submitted his ET1 on 27 October 2023. A preliminary hearing took place on 19 April 2024 at which a list of issues was created. The claimant later confirmed that he did not wish to pursue his unlawful deduction from wages or holiday pay claim as the respondent paid this.
The hearing
[3]The tribunal heard from the following witnesses: 3.1. Ms Norris 3.2. Mrs Dawn Crisp 3.3. Mr Callum Crisp 3.4. Mr Matthew Johnson 3.5. Mr Michael Higginbottom 3.6. Mr Scott Cassell 3.7. Mr Chris Baines 3.8. Ms Claire Andrew[4]The list of issues is as follows:1.1 The respondent accepts that the claimant had cancer, which is defined as a disability by Schedule 1 Para 6 of the Equality Act 2010. He was therefore disabled from the point where the evidence shows that he first had cancer (see Bennet v Mitac Europe Limited UKEAT/0185/20/LA para 63).1.2 When did the respondent know, or when ought the respondent reasonably to have known, that the claimant was a disabled person? The claimant says it was 10 July 2023, when he informed his line manager that a tumour had been found and it was likely cancer. The respondent denies that on that occasion the claimant provided information which was sufficient for the respondent to reach that conclusion. Instead, the respondent says it was 19 July 2023, when it received the OGD medical report. 2. Direct disability etc discrimination (Equality Act 2010 section 13)2.1 The claimant relies on a hypothetical comparator.2.2 Did the respondent do the following things:2.2.1 Invite him to a disciplinary hearing on 17 July 2023. (The respondent accepts this, but asserts that at this point it was unaware that he was disabled.)2.2.2 Between 10 and 17 July 2023, failing to contact the claimant about the information which he had provided regarding his health. (The respondent accepts that it did not contact the claimant in that period but asserts that at this point it was unaware that he was disabled.)2.2.3 Refusing to postpone the disciplinary meeting on 19 July 2023. The claimant says he was initially told that the meeting could only be pushed back by one day. He accepts it was later postponed, but only after he had unnecessarily had to provide full written reasons. The respondent asserts that it reasonably postponed the hearing on receipt of the written information.2.2.4 Failing to properly inform the claimant about internal job opportunities while he was on sick leave. The claimant says that in September 2023 he was informed in one email about three job opportunities with only approximately nine hours before the deadline for applying, whereas other employees have been informed earlier. This did not allow him sufficient time to determine whether the positions were suitable for him. The respondent reserves its position as to whether the roles were suitable, but in any case, maintains that if the claimant had asked for an extension to the deadline, it would likely have been granted. The three roles were in operations, engineering and accounts.2.2.5 In August 2023, hiring Chris Baines as a direct replacement for the claimant while the claimant was on sick leave. The respondent says there was genuine business need to hire Mr Baines, and that the claimant was given assurances that this would not affect his position.2.2.6 Issuing the claimant with a written disciplinary warning on 24 March 2024. The claimant argues that his health was not properly taken into account when the respondent made this decision. The respondent argues that it took occupational health advice and that the decision was justified.2.3 Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else would have been treated. There must be no material difference between that hypothetical person’s circumstances and the claimant’s.2.4 If so, was it because of disability?2.5 Did the respondent’s treatment amount to a detriment? 3. Discrimination arising from disability (Equality Act 2010 section 15)3.1 Did the respondent treat the claimant unfavourably by: 3.1.1 [See list at 2.2.1 above].3.2 Was any unfavourable treatment because of something(s) arising from the claimant’s disability? What were those things?3.3 Was the treatment a proportionate means of achieving a legitimate aim?3.4 The Tribunal will decide in particular:3.4.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;3.4.2 could something less discriminatory have been done instead;3.4.3 how should the needs of the claimant and the respondent be balanced?3.5 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? [See 1.2 above.] 4. Indirect discrimination (Equality Act 2010 section 19)4.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP:4.1.1 Its disciplinary/capability policy.4.1.2 A practice of applying the Bradford Factor scoring for absence as part of its capability policy.4.2 Did the respondent apply the PCPs to the claimant?4.3 Did the respondent apply the PCP to persons with whom the claimant does not share the characteristic (of being disabled with cancer) or would it have done so?4.4 Did the PCP put persons with whom the claimant shares the characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic? The claimant says that the application of the policy did not take into account that in the case of a person with cancer, previous absences might have been caused by the disease even before the disease was known about.4.5 Did the PCP put the claimant at that disadvantage, in that he was issued with a written warning.4.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent says that the warning was issued for performance, not absence.4.7 The Tribunal will decide in particular:4.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims;4.7.2 could something less discriminatory have been done instead;4.7.3 how should the needs of the claimant and the respondent be balanced?[5]Reasonable Adjustments (Equality Act 2010 sections 20 & 21)5.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? From what date? [See 1.2 above.]5.2 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs:5.2.1 Having grievance meetings without an independent third party.5.2.2 Not providing recordings or transcripts of meetings5.3 Did the PCPs put the claimant at a substantial disadvantage compared to someone without the claimant’s disability?5.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?5.5 What steps could have been taken to avoid the disadvantage? The claimant suggests:5.5.1 His request of 27 October 2023 for an independent third party to be present to take notes or chair grievance meetings should have been granted.5.5.2 He should have been provided with transcripts and recordings of meetings that took place on 11 and 21 March 2024.5.6 Was it reasonable for the respondent to have to take those steps (and when)?5.7 Did the respondent fail to take those steps? The Law 5. S13 of the Equality 2010 sets out the test for Direct Discrimination: “(1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (5)If the protected characteristic is race, less favourable treatment includes segregating B from others…”
The Law
[6]In Dziedziak v Future Electronics Ltd UKEAT/0270/11, [2012] EqLR 543 the EAT found that the conduct complained demonstrated an intrinsic link with nationality which was sufficient in itself to pass the burden of proof to the respondent and the respondent had failed to establish another nondiscriminatory reason.[7]In Amnesty International v Ahmed [2009] IRLR 884, [2009] ICR 1450, EAT, Underhill P set out: “In other cases—of which Nagarajan is an example—the act complained of is not in itself discriminatory but is rendered so by a discriminatory motivation, ie by the “mental processes” (whether conscious or unconscious) which led the putative discriminator to do the act. Establishing what those processes were is not always an easy inquiry, but tribunals are trusted to be able to draw appropriate inferences from the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions). Even in such a case, however, it is important to bear in mind that the subject of the inquiry is the ground of, or reason for, the putative discriminator's action, not his motive: just as much as in the kind of case considered in James v Eastleigh, a benign motive is irrelevant … The distinctions involved may seem subtle, but they are real … There is thus, we think, no real difficulty in reconciling James v Eastleigh and Nagarajan. In the analyses adopted in both cases, the ultimate question is—necessarily—what was the ground of the treatment complained of (or—if you prefer—the reason why it occurred). The difference between them simply reflects the different ways in which conduct may be discriminatory.''[8]This has been confirmed in a number of subsequent cases including more recently by Linden J in Gould v St John's Downshire Hill [2020] IRLR 863, [2021] ICR 1, EAT(a case of alleged discrimination because of marriage): ''…the logic of the requirement that the protected characteristic or step must subjectively influence the decision maker is that there may be cases where the “but for” test is satisfied – but for the protected characteristic or step the act complained of would not have happened – and/or where the protected characteristic or step forms a very important part of the context for the treatment complained of, but nevertheless the claim fails because, on the evidence, the protected characteristic or step itself did not materially impact on the thinking of the decision maker and therefore was not a subjective reason for the treatment. This point is very well established in the field of employment law generally where, for example, an employer may be held to have acted by reason of dysfunctional working relationships rather than the conduct of the claimant which caused the breakdown in those relationships (see e.g. the cases on the distinction between dismissals related to “conduct” and dismissals for “some other substantial reason”, such as Perkin v St Georges Healthcare NHS Trust [2006] 617 CA; and the cases in relation to public interest disclosures such as Fecitt & Others v NHS Manchester (Public Concern at Work Intervening) [2012] ICR 372 CA and Panayiotou v Chief Constable of Hampshire Police [2014] IRLR 500 EAT).[9]S.23 of the Equality Act 2010 sets out the law relating to comparators: “(1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”[10]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, HL (a sex discrimination case), Lord Scott explained that this means that “the comparator required for the purpose of the statutory definition of the discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class.”[11]S15 EqA 2010 sets out: “Discrimination arising from disability (1)A person(a) (A) discriminates against a disabled person(b) (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2)Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 5. S19 of the Equality Act 2010 sets out the test for Indirect Discrimination: Indirect discrimination (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim. 6. In Newham Sixth Form College v Saunders [2014] EWCA Civ 734 the Court of Appeal confirmed that the guidance given in Environment Agency v Rowan [2008] IRLR 20, [2008] ICR 218 must be applied, so that in order to make a finding of failure to make reasonable adjustments the following must be identified: (a) the provision, criteria or practice applied by or on behalf of an employer; or (b) the physical feature of premises occupied by the employer;(c) the identity of non-disabled comparators (where appropriate); and(d) the nature and extent of the substantial disadvantage suffered by the claimant. Laws LJ in Saunders added: ''the nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustment necessarily run together. An employer cannot … make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and extent of the substantial disadvantage imposed upon the employee by the PCP'.' 7. The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the tribunal, as set out by the EAT in Jennings v Barts and The London NHS Trust UKEAT/0056/12, [2013] EqLR 326, [2013] All ER (D) 184 (Mar). Langstaff P in Donelien v Liberata UK Ltd UKEAT/0297/14 (16 December 2014, unreported; affirmed by the Court of Appeal [2018] EWCA Civ 129, [2018] IRLR 535) warned that when considering whether a respondent to a claim 'could reasonably be expected to know' of a disability, it is best practice to use the statutory words rather than a shorthand such as 'constructive knowledge' as this might imply an erroneous test. The burden – given the way the statute is expressed – is on the employer to show it was unreasonable to have the required knowledge. 8. We have considered Pilkington Uk Limited v Jones [2023] EAT 90 and Hall v Chief Constable of West Yorkshire Police [2015]. 9. We found A Ltd v Z to be helpful to the issue of knowledge under s15(2) of the EqA 2010. At para 23 it set out the following: “In determining whether the employer had requisite knowledge for section 15(2) purposes, the following principles are uncontroversial between the parties in this appeal: (1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39. (2) The Respondent need not have constructive knowledge of the complainant’s diagnosis to satisfy the requirements of section 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) longterm effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J. (3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant. (4) When assessing the question of constructive knowledge, an employee’s representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610, per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052), and (ii) because, without knowing the likely cause of a given impairment, “it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]”, per Langstaff P in Donelien EAT at paragraph 31. (5) The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code, which (relevantly) provides as follows: “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.” (6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665). (7) Reasonableness, for the purposes of section 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.” Burden of Proof 10. S136 of the Equality Act 2010 sets out the burden of proof which applies to discrimination cases: “(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.” 11. In Igen Ltd v Wong the Court of Appeal approved the guidance given in Barton v Investec Securities Ltd [2003] IRLR 332 concerning the burden of proof in discrimination cases which is that: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail…. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.”[12]In Madarassy v Nomura International plc 2007 ICR 867, CA Lord Justice Mummery stated: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” The ECHR Code of Practice[13]We have also had regard to the Code of Practice: Employment Equality and Human Rights Commission: Equality Act 2010 Code of Practice (the “Code”).[14]In relation to s15 EqA 2010 and the employer’s knowledge it sets out: “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. Example: A disabled man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The worker is disciplined without being given any opportunity to explain that his difficulties at work arise from a disability and that recently the effects of his depression have worsened.”[15]In order for the claimant to succeed in his claims, at material times the respondent needed to be aware that he had a disability.[16]It is accepted that the claimant was a disabled person with cancer and that the respondent had knowledge of this from 15:50pm on 18 July 2023. This is when the claimant informed the respondent that he had been diagnosed with cancer.[17]As some of the issues predate this date and start from 10 July 2023 we must consider if the respondent had knowledge of the claimant’s disability from 10 July 2023 or any other date before 18 July 2023. The claimant says that the respondent had knowledge from 10 July 2023 because of the call that took place between him and MH at just before 10 AM on 10 July 2023. This is before the claimant was diagnosed with cancer.[18]Paragraph 6 of Sch 1 EqA 2010 sets out that cancer is a disability. The ECHR Code sets out that “2.18. Cancer, HIV infection, and Multiple Sclerosis are deemed disabilities under the Act from the point of diagnosis. In some circumstances people who have a slight impairment are automatically treated under the act as being a disabled.”[19]We have taken into account the guidance of the EAT in Bennett v Mitac Europe Ltd [2022] IRLR 25 which sets out: “63. It is important to distinguish between a person having cancer and having been diagnosed as having cancer. It is the former that is protected by para 6 of App 1. If there is any doubt, the statute prevails over the guidance. If a person has cancer but does not seek medical attention, so never obtains a diagnosis, that would not mean that the person did not have cancer and so was not disabled. In such a case the person might have difficulty in proving that he had cancer. The diagnosis will often provide the first evidence that the person has cancer. Usually, the date of diagnosis will be the date from which a person is deemed to be disabled. That is consistent with the guidance that refers to a person being disabled 'effectively from the point of diagnosis'.64. Some confusion may be caused by the reference to the 'point of diagnosis'. If a person attends a doctor and is informed that he has cancer and that it is advanced and must have been present for, say, six months; what is the 'point of diagnosis'? Is it the date from which the medical evidence shows that the person first had cancer or the date six months later when the diagnosis was pronounced. I consider it is clearly the former and, certainly, for the purposes of the para 6 of App 1, it is the earlier date form which the deemed disability began.65. At para 40 HHJ Eady QC stated: 'On its face, the question for the ET in this case was a simple one: had the claimant had cancer?'66. I consider that the following passages are really concerned with the issue of the date from which there was evidence that the claimant had cancer, which was the material issue in the appeal: 'As the Guidance and the EHRC Code state, once a person is diagnosed with cancer, they are deemed to be disabled for the purposes of the EqA. That would support the claimant's submission that this must mean the focus will be on the point of diagnosis and, in this respect, the claimant criticises the ET for failing to determine the question before it at the relevant time… 41. An ET is, of course, not an expert medical body. It was bound to reach its determination on the basis of the evidence before it. … 47. I largely agree with the claimant on these points. When determining whether a condition satisfies the deeming provision of para 6, there is no justification for the introduction of distinctions between different cancers or for an ET to disregard cancerous conditions because they have not reached a particular stage. I equally agree that it is undesirable that ETs' determinations under Sch 1 para 6 should necessarily be required to be based on high-level medical expert evidence as to what is, or is not, cancer (not least as it is not impossible to conceive that this might be a matter of some specialist academic debate). Equally, however, Sch 1 para 6 does require that a complainant have one of the specified conditions; it is not sufficient that they might develop a relevant condition in the future and I am not persuaded that a purposive construction requires such a broad approach to be adopted.'67. The lack of logic in the respondent's contention that a person is deemed to be disabled from the date of a diagnosis of cancer, can be tested as follows. If a person attends a doctor and is diagnosed erroneously as having cancer does that mean that they are deemed to be disabled from that date, even if the evidence later shows that the diagnosis was wrong? Obviously not. The relevance of the medical diagnosis is that it is generally a key part of the evidence of the period during which a person had cancer so was deemed to be disabled.68. Furthermore, a person can be subject to discrimination because of disability in circumstances in which the person is believed to be disabled. I can see no reason why a person could not be discriminated because of disability if at the time it is thought that a disability will arise at a later date, although that point does not arise for determination in this case and has not been subject to detailed argument, so I make no final determination on it. If a disability is undiagnosed and unsuspected by the employer it will not be possible for the employer to have discriminated because of it. On the other hand, if a person does have cancer, and the employer believes that to be the case, disability and knowledge can be established before a medical diagnosis has been obtained.”[20]Therefore, we have considered what happened on the call between the claimant and MH on 10 July 2023.[21]The claimant said in his witness statement that he told MH that “a tumour was found and it was being investigated for cancer”.[22]In the ET1 the claimant put it that he told MH that “I had a tumour and it was highly likely that it was cancerous” The claimant submitted the ET1 on 27 October 2023, this was after he had surgery, spent several weeks in hospital and was recovering from the operation. We consider that by this time he was familiar with the words tumour and cancer in a way that he was not on 10 July 2023.[23]Neither party has been legally represented at any stage in this case. The bundle contains documents from the claimant which include extracts of documents and his commentary on them. For example, at p 222 the claimant’s commentary includes “…The response to this alleged that this was the first the company had heard about this, this was not the first time I had made representatives of the company aware [sic] that I had serious health issues”. The claimant’s commentary at p 217 set out “Claimant had an endoscopy procedure carried out on Sunday 9 July 2023, where a suspicious tumour was discovered, and several biopsies were taken. CC was advised that it was likely this was cancerous…”[24]We have taken these as examples to show how the claimant has used slightly different words in recounting what he said in that call.[25]Ms Norris, the claimant’s ex-fiancé, in her witness statement said that on the call “Callum clearly articulating what had happened in the last 24 hours and [MH] responded with what I perceived as indifference”. Mr Wharton asked her what she recalled about the call between the Claimant and MH and she said that the claimant had just been for a blood test, had had a routine appointment and they had some concerns, had a biopsy and “likely this is something sinister, it could be cancerous”[26]It can be seen from the above that there is some difference between what the claimant said and what Ms Norris said. Particularly in that the claimant used the word tumour and cancer on one account and cancerous on another account. The tribunal recognises that it is very hard for any individual to recall the exact words that were said in even a memorable conversation. Recalling that conversation which has been repeated in somebody’s memory for some time also damages the integrity of that memory as to exactly what was said. We consider that this is demonstrated by all the different accounts of that call that have come before the Tribunal. It is therefore a very difficult task for a tribunal to determine exactly what was said.[27]In oral evidence Mr Higginbottom was asked in detail about the call by Ms Andrew, the claimant and Mr Wharton and he maintained that he did not accept hearing the word tumour on that call.[28]We do think that it is relevant to our assessment of the evidence that at this time MH’s partner had recently undergone surgery to remove a brain tumour and that she very unfortunately died from that illness. There is undisputed evidence that when he found out that the claimant had cancer he called him as soon as he was permitted to try to share advice from his personal situation. We recognize that at that time the claimant did not want to hear what MH had to say and that is understandable. However, we find that even though it is possible that MH could have been doing this to protect himself or the company that this is unlikely and instead that he was showing genuine human compassion when he understood that the claimant had cancer. We consider if he had understood that the claimant almost certainly had cancer and was just waiting for the official diagnosis from the oncologist on 10 July 2023 MH would have acted differently and tried to support the claimant in a personal way. We consider that this background lends support to MH’s claim that MH would have taken seriously words that were used to him which indicated to him that there was a real risk or likelihood that the claimant had cancer.[29]We recognise that there is a difference between what the claimant perceived he informed MH and what MH took from that call. The claimant’s position is that he said enough that the respondent should have known that he almost certainly had cancer and was very unwell ie he was disabled. MH’s position is that nothing that was said on that call that alerted him to a real possibility that the claimant had cancer or a serious illness ie a disability. In response to Judge Bartlett’s question he said that the word “cancer” had not been used on the call and that he had heard blood tests. Mr Wharton put it to him that the claimant said that he had told him that “that it was a tumour and was highly likely that it was cancerous”. MH said that “I don’t know how anyone would know it was highly likely to be cancerous without medical evidence” We take his evidence to mean that all he heard was something vague and used in common parlance rather than a serious statement that there was a very real probability that the claimant had cancer. For example, someone may say that they are having a mole checked out to see if it is cancerous, that would not necessarily be sufficient for someone to take this as a serious statement that they almost certainly had cancer at that point.[30]We are not satisfied to the balance of probabilities that the claimant used the word cancer on the call, neither Ms Norris in her statement or oral evidence nor Mr Higginbottom used that word to describe what was said and MH disputed that was said. Ms Norris’ witness statement used the word “mass” and not tumour. We accept that the words to the effect that what was found “could be cancerous” were used in the call by the claimant. We do not find that the words “highly likely to be cancerous” were used. We accept that the word “cancerous” was used but not “cancer”.[31]We have also considered the background circumstances to this call in assessing whether the respondent should reasonably have taken from that call that the claimant was disabled in that he very likely had cancer and/or that MH had been told enough about the situation that the respondent should have reasonably made further enquiries into the claimant’s health.[32]We find that the call on 10 July 2023 occurred in the following circumstances: 32.1. The claimant was 31 years old; 32.2. He had taken 3 days sick leave during from January 2023 to 10 July 2023; 32.3. The respondent had some concerns that the claimant may have been off sick in excess of these days and had failed to declare them as sick leave. There are emails from Ms Andrew to the claimant in April, May and July about his sickness and attendance. On 4 July 2023 the claimant set out in an email to Ms Andrews that he had taken 3 days sick leave and given the reasons which include, covid-19, a cough syncope and chest infection. He firmly denied the suggestion that he had taken more sickness absence. We find that there was nothing in this rather minor sickness absence record to alert the respondent that the claimant might be suffering from significant ill-health; 32.4. The claimant did not ask for any time off sick on 10 July 2023 or any of that week. We consider that this is an important factor as to how the what the claimant said would be perceived by MH. If a person had received devastating news about a life changing health situation, an employer may reasonably expect that person to ask for some sort of leave so they could try to address such a difficult situation. The claimant did not ask for any leave, he did not even ask to have the afternoon of 10 July 2023 off work and therefore his behaviour in this regard downplayed the seriousness of the message he was trying to convey.[33]Taking into account all the circumstances we do not consider that there was sufficient information for the respondent to have reasonably known that before 18 July 2023 the claimant had a disability.[34]We have consider the guidance in Bennett (appellant) v Mitac Europe Ltd (respondent) [2022] IRLR 25. In the terms of that Judgement there is insufficient in this case for the respondent to have suspected before 18 July 2023 that the claimant had cancer.[35]We do not consider that the respondent should have reasonably made more enquiries in all the circumstances about the claimant’s health between 10 July and 18 July 2023 and the background we have set out above. MH understood that the claimant was waiting for test results and it is reasonable for an employer to wait for an employee to contact them with the results rather than chase them up when there was no indication that there would be any more results or information before then. For the reasons set out above, we have found that the words used by the claimant in the circumstances of the case and the larger circumstances around his employment did not require this.[36]Therefore, the respondent did not have actual or constructive knowledge of the claimant’s disability until 18 July 2023. Direct Discrimination[37]We will consider each of the issues in turn. “Invite to a disciplinary hearing on 17 July 2023”[38]It is not disputed that the respondent did invite the claimant to that meeting.[39]We have found that this claim must fail because the respondent was not aware that the claimant was disabled.[40]Even if we had found that the respondent had actual and/or constructive knowledge of the claimant’s disability we find that this act was not for a reason connected to the disability. This is for the following reasons: 40.1. There is substantial documentary evidence in the bundle that the claimant was well below his revenue targets and smart goals. He had brought in revenues of £84,882 at 17 July 2023 against a target of £800k and this was not disputed by the claimant. There was evidence that his lack of revenue was discussed between Matt Johnson, Scott Cassell and MH from February 2023 onwards. This evidence was repeated by the respondent’s witness in oral evidence; 40.2. The timing of the recruitment of Chris Baines: 40.2.1. There is a text message from Chris Jones, the Operation manager and CB’s nephew to CB on 6 July 2023 asking if CJ could pass CB’s number on to MH. 40.2.2. CB’s evidence was that he spoke to MH about a role within the respondent on 6 July 2023, that he also spoke to MJ and MH on 7 July during which it was agreed he would come in for a more formal interview on 10 July 2023 which he did; 40.2.3. MH’s evidence was that he spoke to CB about a role within the respondent on 6 July 2023 and on 7 July 2023 with MJ at which they invited CB to attend the offices for an interview on 10 July 2023; 40.2.4. MJ’s evidence was similar to that of CB and MH and consistent with their evidence; 40.2.5. We find that the individuals who were involved in the interviewing and recruitment process for the respondent gave evidence about these dates that was consistent. We have carefully considered whether the respondent’s account of the timing of the arrangements with CB is as it says it. There is almost no documentary evidence to support the respondent’s claims about the timing. The only documentary evidence is the screenshot from Chris Jones’s phone. There were no emails, calendar appointments nor the signed contract by CB. We have considered whether to draw an adverse inference from this lack of documentation. We have decided not to because there is the screenshot and we have considered that we have heard from three witnesses who have all said the same thing about the dates. We consider that while some of them may have been prepared to do whatever it takes to protect the company, we do not consider that they all would have done and in particular we consider that CB does not have a real motive to not be truthful about these events. 40.2.6. We find that these events occurred before the claimant said anything related to disability. 40.2.7. The evidence of MH and CB was that CB was offered the role as Senior Business Development Manager on 10 July and he accepted the role on 17 July 2023. We have accepted this evidence as we have found this evidence consistent with the other witness evidence and evidence about the surrounding circumstances. 40.2.8. We note that Ms Andrew did not communicate CB’s recruitment to the claimant until 25 July 2023 which was after the respondent was aware of the claimant’s disability. We accept that CB’s evidence that he started work in August 2023 but we also accept that this is because he was on garden leave. Therefore, we have accepted the dates as the respondent has put them. 40.3. We find that the disciplinary letter was sent to the claimant on 17 July 2023 after CB had accepted the role and we consider that the respondent had decided to dismiss the claimant because it had found a replacement. MH and CA’s evidence was that they had started preparing the letter around the end of June which is just over 2 weeks before it was sent out. We find that the letter sent to the claimant was detailed about his performance concerns. It was not simply an invitation to a disciplinary meeting. We accept that this would have taken some time to put together. The letter was sent at 10am on 17 July 2023 and we find that it was finalized at the latest on Friday 14 July 2023. MH and CA’s evidence was that it was finalised on 13 July 2023 and ready to go out on 14 July 2023 but that MH wanted to send it on Monday and not a Friday so that the claimant did not worry about it over the weekend. We accept that evidence. We also consider that the respondent was waiting for CB to confirm he had accepted their offer. We find that it would have been difficult for the respondent to complete that letter if they had started work on it as soon as the call with the claimant finished on 10 July 2023. Therefore, we have concluded that this letter was started before 10 July 2023 and the call between the claimant and MH. 40.4. We have considered if the call on 10 July 2023 played any role in the letter being finalised or sent out ie if the respondent had notice that the claimant might be unwell and his performance affected so that they were motivated to terminate his employment. We have concluded that the 10 July 2023 phone call played no part in the respondent’s decision because of the detailed records about failure to meet targets, the seriousness of this for the company and the timing around the hiring of CB; 40.5. During the evidence of various witnesses they stressed that this was a small company, the claimant had failed to bring in more than a very small amount of revenue which was unsustainable for the business and it meant that there was a risk that the business would have to close and/or that people would lose their jobs. The respondent’s evidence also stressed that the claimant was on a high salary in the respondent, higher than the previous more junior business development managers and that without revenue his position was unsustainable. We find that the respondent would not have been happy to pay what it considered to be two high salaries of senior business development managers when it had never had so many roles previously and it was now in financial difficulties. Therefore, we find that the respondent’s intention was to dismiss the claimant as they had found a replacement, namely CB, but that this had no connection whatsoever to his disability and instead was because of the fact that he had not brought in sufficient revenue. However, when they found out about the claimant’s cancer they decided not to dismiss him and to postpone any action indefinitely (at that point).[41]We recognise that from the claimant’s perspective on 10 July 2023 he felt that he had communicated to his employer that he very probably had cancer and the next thing he heard from his employer was a letter a week later inviting him to a disciplinary meeting with the potential outcome that he would be dismissed. It is clear how somebody would be extremely upset and distressed in that situation. However, at this hearing we have been presented with considerably more evidence about the situation and we have ultimately concluded that there were numerous actions being undertaken by the respondent around that time that the claimant had no awareness of and that had no connection to his illness.[42]In summary, we have found that the claimant has discharged the prima facie burden of proof but that the respondent has discharged the burden of proof on it by cogent evidence that the reasons for its actions were unconnected to the claimant’s disability. “Between 10 and 17 July 2023, failing to contact the claimant about the information he had provided regarding his health”[43]This claim fails because we find that the respondent had no actual or constructive knowledge of disability.[44]We find that there was a mismatch between what the claimant perceived that he had communicated about his health and about what MH understood about the claimant’s health.[45]The claimant was not off sick during this week.[46]We find that the respondent would have acted in this way towards anyone including all those without a disability and the actions are not for a reason connect to disability. At worst MH was waiting for the claimant to contact him about the outcome of the tests he had said he was having. We find that not contacting the claimant whilst he was waiting for results was not done for a reason connected to disability. “Refusing to postpone the meeting on 19 July 2023”[47]It is not disputed that the following happened: 47.1. The disciplinary letter inviting the claimant to the disciplinary meeting on 18 July 2023 was sent to the claimant at 10am on 17 July 2023; 47.2. At 4:22pm on 17 July 2023 the claimant emailed and said the meeting needed to be postponed “I have an urgent appointment with a consultant at the hospital tomorrow morning at 9:50am for my results.” 47.3. At 4:53pm 17 July 2023 Rachel Agate (HR) responded asking him “what time in the afternoon would you like to do the meeting.” 47.4. At 6:07pm the claimant responded and said “this will need to be postponed for another day” 47.5. Rachel responded at 12:48pm on 18 July 2023 that “[the hearing] cannot be pushed back beyond Wednesday”; 47.6. At 3:50pm on 18 July 2023 the claimant responded “As discussed with Michael on 10th July 2023, I am currently undergoing medical support for my cancer diagnosis”[48]We find that the respondent did postpone the meeting by a short period of time to the afternoon of the same day initially and then when it had knowledge that the claimant was disabled they postponed it indefinitely (it later took place in March 2024). For these reasons, the claim must fail.[49]Even if we had found that there was a refusal to postpone we would have found that it had no connection whatsoever to disability. The respondent wanted to proceed with the disciplinary meeting and that is the only reason for it not wishing to give longer postponements. “failing to properly inform the claimant about internal job opportunities while he as on sick leave”[50]We find that the respondent did inform him of internal job opportunities throughout his sick leave. This claim therefore fails. “In August 2023, hiring Chirs Baines as a direct replacement for the claimant while the claimant was on sick leave”[51]It is accepted that CB started employment on 4 August 2023. We have found that he was offered the job on 10 July 2023 and he accepted it on 17 July 2023. We also find that CB was hired as a direct replacement for the claimant. We reject the evidence that he was only hired for the northern region for the reasons we have given above.[52]However, for the reasons we have given above, we find that he was hired solely because the claimant had brought in so little revenue that the respondent wanted to hire a replacement. We find that there is no connection whatsoever to the claimant’s disability.[53]There is documentary evidence that the respondent has dismissed more junior business development managers when they did not bring in sufficient revenue. This supports the respondent’s case that they have and do dismiss people who do not bring in sufficient revenue and that they treated the claimant the same as those non disabled persons (we accept they are not comparators as they had less senior roles than the claimant). Issuing the claimant with a written disciplinary warning on 24 March 2024.[54]It is not disputed that the respondent did issue the claimant with a disciplinary warning for performance on this date.[55]The disciplinary meeting had been scheduled to take place on 18 July 2023 and the respondent did postpone this. On 7 February 2024 the claimant had asked in an email for the disciplinary meeting to take place. He was asked about this in oral evidence and he said that he made this request because he wanted to get it out of the way, his health was better and he was starting to think about being able to get back to work.[56]At the meeting the claimant said that in the period January to July 2023 his health had been impacted by cancer even though he did not have the diagnosis of cancer until mid-July 2023. He believed that his ill-health had significantly affected his performance at work. He gave the figure that his performance had been reduced by approximately 60%.[57]We find that the disciplinary meeting was focused on the claimant’s failure to meet his revenue targets and requirements to complete certain tasks and record this into a system called salesforce. We find that these comments and conclusions by the respondent are evidenced in the documentary evidence. It is not disputed that the respondent reduced the claimant’s revenue targets by 60% to reflect what the claimant had said about his ill-health and the effect on his performance. The respondent only considered his performance during the period up to 18 July 2023. This meant that it did not consider any time the claimant had spent on long-term sick as a result of his disability.[58]We find that the claimant was treated more favourably than a person who did not have a disability. We find that a hypothetical comparator would have been dismissed and the claimant was given the lesser sanction of a written warning.[59]We have also considered the point from Bennett v Mitac Europe Ltd and whether the respondent was influenced in its decision by a view that the claimant would continue to under perform due to his disability. We find that this cannot be supported. The respondent has established that the meeting was called in March 2024 because of a prompting request of the claimant. The meeting took place and he was issued with a warning, he was not dismissed which is quite different to Bennett v Mitac Europe Ltd.[60]Therefore, accepting that the claimant has discharged the prima facie burden of proof, we find that the documentary and oral evidence about the claimant’s performance (which was not disputed) discharges the burden of proof on the respondent. Discrimination arising from disability[61]The list of alleged unfavourable treatment matched those events set out in the list of issues identified for the purposes of direct discrimination. We have considered whether each of those in turn satisfies the requirements of s15 EqA Discrimination arising from disability. “Invite to a disciplinary hearing on 17 July 2023.”[62]We have found that the respondent did not have actual or constructive knowledge of the claimant’s disability when he was invited to the disciplinary hearing and therefore this claim must fail. “Between 10 and 17 July 2023, failing to contact the claimant about the information he had provided regarding his health”[63]We have found that the respondent did not have actual or constructive knowledge of the claimant’s disability during this period and therefore this claim must fail. “Refusing to postpone the meeting on 19 July 2023”[64]We find that the respondent did not fail to postpone the meeting, as they did postpone it several times. Therefore, this claim fails.[65]Further, the claimant has not identified what the something arising from disability is. We have taken it that he was unable to attend the meeting on 19 July 2023 because of medical appointments.[66]We do not accept that there was less favourable treatment because the meeting was postponed initially on request by the claimant to the afternoon of the same day and then it was postponed indefinitely.[67]We also find that any unfavourable treatment was not because he could not attend the appointments as the meeting was postponed so he could attend the medical appointment. “failing to properly inform the claimant about internal job opportunities while he as on sick leave”[68]We have found that the respondent did not fail to properly inform the claimant about internal job opportunities whilst he was on sick leave and therefore this could not be unfavourable treatment. “In August 2023, hiring Chirs Baines as a direct replacement for the claimant while the claimant was on sick leave”[69]It is accepted that CB started employment on 4 August 2023. We have found that he was offered the job on 10 July 2023.[70]The claimant has not identified what the something arising from the claimant’s disability was. We consider that the something arising from disability is that the claimant was on sick leave.[71]The alleged unfavourable treatment is the hiring of Chris Baines as a replacement for the claimant.[72]On the facts as we have found them above, we find that there is no connection between the hiring of Chris Baines and the claimant’s disability. This is because the decisions to hire Chris Baines were taken before the claimant commenced long-term sickness absence and before the respondent’s had knowledge of the claimant’s disability. Therefore, we find that the “because of”, the causal connection, is not met. Issuing the claimant with a written disciplinary warning on 24 March 2024.[73]The claimant has not identified what the something arising from disability is. We have taken that the something arising from disability is that he did not meet his revenue targets as his performance was materially and detrimentally affected by his disability.[74]We find that the warning was unfavourable treatment.[75]We find that the warning was not because of the something arising from disability because the effect of the disability on his performance had been discounted by the reduction in his performance targets.[76]If we had found that there was causation, we consider that the legitimate aim was that employees worked at sufficient performance levels for the sustainable running of company.[77]We find that the respondent’s decision to issue him with a written warning was a proportionate means of achieving the legitimate aim. The reduction of the targets by 60% was a proportionate reduction of his targets to take into account the effect of his disability. Indirect discrimination Did the respondent have the following PCP: its disciplinary/capability policy[78]We find that the respondent did apply the disciplinary policy to the claimant and that it applies it to persons with whom the claimant does not share the characteristic of being disabled with cancer. We must therefore consider if the PCP put persons with whom the claimant shares a characteristic at a particular disadvantage when compared with those that do not share the characteristic.[79]We have found that the respondent applied the disciplinary policy to the claimant because of his performance.[80]The list of issues has referred to absences however it is accepted that the disciplinary had not taken into account absences. Even putting this issue differently so that the issue is that the performance policy affected persons whose performance was affected by ill-health by cancer. We find that there is no group disadvantage as those with other disabilities would have been treated the same.[81]However, even if the claimant succeeded on group disadvantage, we find that the respondent acted proportionately in pursuing the legitimate aim (of employees working at sufficient performance levels for the sustainable running of company) by reducing his targets to 40% Did the respondent have the following PCP: a practice of applying the Bradford factor scoring the absence as part of its capability policy.[82]We accept that the respondent had this PCP however we find that the respondent did not apply the PCP to the claimant. In early July 2023 there was an email from Ms Andrew to the claimant which mentioned the Bradford factor. However, there was no further mention of this and it is clear from the written warning given in March 2024 that absence played no part in the respondent’s decision. This part of the claim must fail for this reason. Reasonable adjustments Did the respondent have the following PCP’s: having grievance meetings without an independent third party[83]We find the respondent did have this policy as the respondent accepts that it heard grievance meetings internally and rejected the claimant’s request for a third party to hear a claim. We do not consider that this PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability. We find that individuals claiming a grievance about senior managers who do not have any disability never mind the claimant’s disability would be in the same situation as the claimant and therefore there would be no substantial disadvantage. Did the respondent have the following PCP: not providing recordings or transcripts of meetings[84]We find that the respondent did not have a PCP of not providing transcripts of meetings. The claimant specified the meetings of 11 and 21 March 2024 in the list of issues. There is documentary evidence that he was provided with a transcript of the meeting on 11 March 2024. The respondent also attempted to send him the recording of this meeting but was unable to do so because of the file size. It put the recording on SharePoint which the claimant was unable to access. There is an email of 27 March 2024 attaching a transcript of the 21 March 2024 meeting and sending it to the claimant. Therefore, we find that the respondent did not have a policy of not providing transcripts of meetings.[85]We find that it did not have a policy of not providing recordings of meetings as there is evidence that it tried to send the recording of the 11 March 2024 meeting to the claimant.[86]In any event, we find that this PCP did not put the claimant at a substantial disadvantage compared to someone without the claimant’s disability. The claimant has not identified the substantial disadvantage and we consider that many employees including those without the claimant’s disability may have liked and may have found a recording of meetings useful but there is no disadvantage[87]Further, we find that it was not reasonable to have provide a recording of meetings when a transcript has been provided. J Bartlett COSTS JUDGMENT 1. The respondent’s application for a costs/preparation of time order is refused.
The Law
[1]In an email dated 11 April 2025 the respondent’s representative made an application for a costs and/or preparation of time order under rule 74 of the Employment Tribunal Procedure Rules 2024. The claimant responded via email on 15 April 2025.
Background
[2]The substantive liability and remedy hearing was heard before the tribunal on 17, 18, 19, 20 and 21 March 2025. At that hearing the tribunal dismissed all of the claimant’s claims giving oral judgement and reasons.[3]After judgement was given Mrs Andrew (the respondent’s lay representative) made an application for a costs/preparation of time order. The tribunal gave her a break and some time to make that application and she made it orally. What was said in that application did not engage with the factors set out in Rule 74 of the Employment Tribunals Regulations. Judge Bartlett read out rule 74 and explained that these were the criteria that the tribunal considered in making such orders. It was the tribunal's opinion that circumstances described at the hearing were complaints about the inconveniences of litigation rather than engaging with the criteria set out in Rule 74 Employment Tribunal Procedure Rules.[4]The tribunal offered the parties the option to make a written application after they had had some time to consider their positions. Mrs Andrew was happy to accept this route. Directions were issued and it was agreed that the decision would be made by the tribunal, on the papers without the appearance of any representatives for the parties. It is on this basis that the application comes before us. The Tribunal Rules relating to costs[5]The Employment Tribunals Procedure Rules at rules 73 to 80 set out the principles and processes that must be applied in relation to costs/preparation of time orders.[6]Rule 75 sets out “A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgement finally determine the proceedings in respect of that party were sent to the parties.”[7]Rule 74 sets out:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply had no reasonable prospect of success, or (c)a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned..[8]The respondent’s application relied on three separate grounds which are as follows:a. the claim had no reasonable prospects of success Rule 74(2)(b)b. the claimant acted unreasonably in bringing the claim Rule 74(2)(a); and/orc. the claimant was in breach of case management orders relating to preparation of the case for the substantive hearing Rule 74(3).[9]We shall take each of these in turn. The claim had no reasonable prospects of success[10]The application submits that the claimant refused to engage in any internal discussions and sent unsubstantiated email after email. This conduct relates to a period when the claimant was still employed by the respondent and we consider that this is an employment matter and not a matter related to the claim in the Employment Tribunal. We consider that it has no relevance to this claim.[11]The application submits that some of the claimant’s claims had no reasonable chance of success. These are identified by reference to the list of issues as 2.2.3, 2.2.4, 2.2.6, 4.6 and 5.2.2.[12]Firstly, we note that the respondent made strike out and deposit order applications that were considered at a hearing and those applications were rejected. That decision does not bind us however it may have relevance.[13]We accept that the claimant had no real prospect of success of establishing the following factual allegations:a. 2.2.3 this concerns the postponement of the disciplinary hearing on 19 July 2023;b. 22.2.6 this concerns that the claimant’s health was taken into consideration when issuing a disciplinary warning;c. 4.6 the claimant was not issued with a written warning for absence.[14]We do not accept that the claimant had no real prospects of success of establishing the other factual allegations identified by the respondent namely:a. 2.2.4 which relates to informing the claimant about all internal job opportunities whilst on sick leave. This was a factual dispute and it turned on evidence that was wholly within the respondent’s gift. We find that it cannot be said that this had no reasonable prospects of success prior to the final hearing.b. 5.2.2 which relates to the claimant being provided with transcripts. The actual facts concerning provision of the transcripts was not straightforward. The tribunal were provided with documentation that indicated the transcripts were available but we were not provided with the actual transcripts. This was a factual allegation that was to be determined and was by the tribunal on the evidence before it.[15]As we have found that some of the claims had no reasonable prospects of success, we have gone on to consider whether to exercise our discretion to make a PTO.[16]We have decided not to exercise our discretion for the following reasons:a. as set out in full in our liability judgement, this case involved very careful consideration of knowledge of the disability on the part of the respondent. Our ultimate conclusion that the respondent did not have knowledge before a certain date led to the failure of certain claims. The claimant’s position was highly arguable. There were substantial litigation risks on both parties;b. whilst we have found that a limited number of the factual allegations had no reasonable prospects of success, even if they had been excluded they would have made little difference to the preparation required for this case and they would not have resulted in a shortening of the final hearing. Those particular allegations were dealt with quickly by the parties and the tribunal;c. this case involved issues that it was quite proper came before a tribunal. The claimant had received a cancer diagnosis and from his perspective, as soon as this was communicated to the respondent, it embarked on a course of conduct which was discriminatory. For the reasons set out in our judgement the claimant’s perspective was understandable and our decision turned on an analysis of the facts and an application of the various legal tests relating to discrimination to the facts as we found them to be. The claimant acted unreasonably in bringing the claim[17]This appears to refer to the above and that the claimant refused the respondent’s settlement offers. The tribunal is concerned that the respondent has disclosed without prejudice offers and if they were without prejudice then they should not have been disclosed to us. In any event, the tribunal considers that this was a finely balanced claim that was determined on a very careful assessment of all the evidence before the Tribunal including oral evidence and involved very careful consideration of legal concepts including adverse inferences.[18]We find that it cannot be said that the claimant acted unreasonably in bringing the claim. As was said in response to the applications for strike out and deposit orders this is a discrimination case and it raised important issues and they were to be determined by the tribunal. Our own judgement sets out that we understood that from the claimant’s perspective he had informed the respondent that he was suffering from cancer and then they attempted to terminate his employment. It was only because of the careful consideration of all the evidence that was before us which was not available to the claimant that the claim was ultimately decided in the respondent’s favour. In these circumstances it cannot be said that the claimant acted unreasonably in bringing the claim. We consider that so far as an argument can be made that in respect of those limited parts identified in the previous section which had no reasonable prospects of success, that it was also unreasonable in bringing those parts of the claim we repeat our conclusions above and reasons for declining to exercise our discretion. The claimant was in breach of case management orders relating to preparation of the case[19]We find that the claimant was in breach of some of the case management orders. We do not consider that the claimant disputes this. We accept that the claimant did not provide the documents in disclosure and for the bundle preparation on the dates required by the case management orders and he had also not prepared a witness statement. The claimant was given time at the start of the tribunal to prepare a witness statement. We understand that this placed considerable pressure on the respondent. However, the witness statement was reasonably short, the respondent was given time to prepare their cross examination and we do not consider that the respondent was prejudiced by this. We do not consider that the actions of the claimant increased costs in any way for the respondent. Mrs Andrew was an employee of the respondent and the time spent on these matters, she would have had to have spent on them at some point, it is simply a question of when she had to put that time in.[20]Rule 74(3) sets out the tribunal may make a costs/PTO where there has been a breach such as the claimant has committed. However, we have decided not to make an order under this rule. As we have set out elsewhere in this judgement, this was a finely balanced case which involved important issues relating to discrimination. The case was ultimately decided by very careful assessment of the evidence provided to the Tribunal including but not limited to an assessment of the oral evidence before it and a careful assessment of these facts and the various legal tests relevant to discrimination. In all the circumstances of the case, we decline to exercise our discretion. Approved by: