Mr J August v Chassis Cab Ltd: 3313416/2023 Mr J August v Chassis Cab Ltd: 3313416/2023
JUDGMENT
The claim of disability discrimination (discrimination arising from disability) is dismissed.REASONS
[1]The Respondent is a family business and the DAF truck franchise holder for East Anglia. It manufactures and repairs motor vehicles and parts and accessories. The Claimant was employed by the Respondent with effect from 6 September 2021 under a two year fixed term contract as an Apprentice Parts Advisor.[2]On 24 August 2023 the Claimant was informed that his employment was being terminated with effect from 31 August 2023. 1 of 11[3]ACAS conciliation took place between 16 October 2023 and 16 November 2023.[4]On 24 November 2023 the Claimant brought a claim for unfair dismissal and for discrimination arising from disability pursuant to s.15 Equality Act 2010 (EqA). He has since withdrawn his claim for unfair dismissal as he had less than two years’ service at the date of dismissal.[5]As regards his complaint of discrimination arising from disability he alleges that at all material times he was a disabled person within the meaning of s.6 EqA by reason of anxiety and depression. He says that he was dismissed by reason of his sickness absence and that his sickness absence arose in consequence of his disability.[6]The Respondent accepts the Claimant was a disabled person by reason of anxiety and depression throughout his employment.[7]The Respondent further accepts the Claimant was dismissed by reason of his sickness absence. However it denies the Claimant’s sickness absence arose in consequence of his disability. It avers, in any event, the dismissal was a proportionate means of managing the sickness absence of its staff and ensuring the quality of service to its customers.[8]The Respondent further denies that it knew or could reasonably be expected to have known that the Claimant had the disability of anxiety and depression at the material time.[9]Accordingly at the outset of the hearing it was agreed that the issues to be determined were:(i) Whether the sickness absence which led to the Claimant’s dismissal arose in consequence of his disability.(ii) If so, whether the Respondent could show dismissal was a proportionate means of achieving a legitimate aim.(iii) If not, whether, at the material time, the Respondent knew or could reasonably have been expected to know the Claimant had the disability of anxiety and depression.[10]We heard evidence from the Claimant and, for the Respondent, from Mr Alistair MacDonald (AM), General Parts Manager, Mr Danny Mutton (DM), then Assistant Parts Manager, and Ms Justyna Andrzejewska (JA), Compliance Administrator. We were also referred to a bundle of agreed documents.The Evidence
[11]The Claimant commenced work on 6 September 2021. His salary was £6.00 per hour and his contract was a fixed term of two years for the purpose of participation in the DAF apprenticeship scheme. On 4 April 2022 his salary was 2 of 11 increased to £9.50 per hour to comply with the living wage obligations. Although he was primarily based at Ipswich, he was required to work at different sites as necessary and his duties included providing cover, driving, parts picking and other tasks within the Parts Department.[12]The Claimant’s hours were initially 8am to 5pm, but since he needed to take his brother to school the Respondent agreed for his hours to be changed to 8.30pm to 5.30pm to accommodate this. On occasion the Claimant also provided cover for the night shift from 5pm to 1am.[13]The start of the Claimant’s employment was slightly delayed because he needed to have a surgical procedure following an accident. When AM sent the Claimant a letter on 19 August 2021 asking whether he was still interested in the job, the Claimant replied, apologising, and told AM that he had been “trying to sort out my health both mentally and physically”.[14]On 6 September 2021 the Claimant attended an induction which also incorporated an Occupational Health assessment. On 15 September 2021 the Occupational Health provider confirmed the Claimant was in good health and did not recommend any adjustments.[15]At the end of September 2021 the Claimant had a car accident and was absent from work on 28 and 29 September 2021. AM messaged the Claimant as soon as he heard about this. The Claimant said he was OK physically following the accident, and the car was almost fully repaired, but “struggling mentally atm with that”. He also said he was feeling a bit better but “still hadn’t driven yet”. AM assumed the reference to struggling mentally was attributable to the car accident and not part of a wider health issue and the Claimant agreed in evidence this was how his message read. In his GP notes for 27 September 2021 there is a reference to the Claimant having had a road traffic accident.[16]On 30 November 2021 the Claimant informed DM, his line manager, that he wouldn’t be able to come into work the following day as he had some personal things going on at home that he needed to deal with.[17]On 6 December 2021 the Claimant was absent because, he said, of an infected tooth. In his GP notes there is a reference to the Claimant having received “out of hours” medical attention on 6 December 2021.[18]On 27 and 28 December 2021 the Claimant was absent, because, he said, he needed to book a Covid PCR test as he had been in contact with people who had tested positive for Covid. In his GP notes there is a reference to the Claimant receiving a negative Covid test result on 29 December 2021.[19]On 2 and 3 February 2022 the Claimant was absent, because, he said, he needed to have a scan at hospital. There is a contemporaneous reference in the Claimant’s GP notes to the Claimant feeling anxious and being prescribed medication for irritable bowel syndrome. 3 of 11[20]Between 9 February 2022 and 15 February 2022 the Claimant was absent for 5 & ½ days due, he said, to having Covid. In his GP notes there is a reference to the Claimant receiving a positive Covid test result on 10 February 2022.[21]On 24 March 2022 the Claimant messaged DM to say he wouldn’t be coming in the next day as he couldn’t cope with the stress both at home and at work. That the workload was “ridiculous”, although he understood there was an issue with being short staffed and so the problem could be fixed in the near future. The Claimant was absent on 25 March 2022.[22]The Claimant’s GP notes on 28 April 2022 record the Claimant having various blood tests and tests for thyroid and liver function.[23]On Saturday 1 May 2022 the Claimant told DM he was going to have to take off Wednesday 4 May 2022 because of a loss in the family, and then on 4 May he said he didn’t feel up to coming in to work the following day. He was given 4 and 5 May 2022 as compassionate leave days.[24]On Friday 6 May 2022 the Claimant messaged JA to say he was struggling with his mental health and that it was affecting his work. As well as being a Compliance Administrator JA had recently completed a two day training course to become one of two Mental Health First Aiders within the Respondent. We note here that the Respondent does not have a designated HR function and instead uses its compliance function to provide basic HR support and uses third parties for more complex HR matters.[25]JA messaged the Claimant immediately and arranged to speak with him the same day. The meeting lasted about two hours. The Claimant informed JA he was having suicidal thoughts and that he had reached a similar low point a couple of years earlier when he had “been on the Orwell Bridge” and had at that time received help from professionals. The Claimant described his anxiety as derived from his workload, difficulties with his apprenticeship, and also personal issues, such as caring for his grandfather and brother, his relationship with his mother, his relationship with his daughter’s mother, and parental issues. JA suggested the Claimant contact his GP and the Samaritans. She also asked the Claimant for his permission to speak to AM about the matter, which the Claimant gave.[26]JA messaged the Claimant over the subsequent weekend saying “I’m always here to listen if you need to talk or ask for help”. The Claimant messaged back saying he was feeling worse but that he had spoken to the Samaritans. He said he did not think his mental health was going to improve anytime soon.[27]On Monday 9 May 2022 JA sent another message to the Claimant to ask how he was feeling. The Claimant did not provide a response to how he was feeling but agreed to meet AM (who himself had messaged the Claimant) later that week. 4 of 11[28]In his meeting with AM the Claimant said he had issues at home with his mother, and that he was looking after his grandfather and brother. As regards work he also said he felt he was doing more than most other employees and that he was struggling with some of his assignments for his apprenticeship. Subsequently AM helped the Claimant with some of his assignments and took steps to improve his workload.[29]While we consider that both JA and AM gave the Claimant support we are surprised that neither of them considered referring the Claimant to Occupational Health. This is particularly so in view of the severity of the Claimant’s low mood and the fact he told JA that this wasn’t the first time he had experienced such a low point. Given his willingness to talk to JA and AM, there is no reason to believe the Claimant would not have agreed to such a referral and discussed his mental health with the relevant medical professional. Furthermore, if such a referral had been made it’s possible that the Claimant’s employment with the Respondent may have followed a different trajectory.[30]The Claimant did not have any sick absence in the week commencing 9 May 2022 and there is no reference to his anxiety and depression in his GP notes for that week. However the notes record a hospital referral to a haematologist and to the Claimant having an ECG.[31]On 17 May 2022 the Claimant messaged DM to say he wasn’t coming in because he hadn’t slept due to his breathing being bad lying down and feeling lightheaded and nauseous.[32]On 20 May 2022 JA messaged the Claimant to ask how he was. The Claimant said he had been off sick and at the hospital the previous day. His GP notes for 19 May 2022 record that the Claimant had had a chest X-ray. The Claimant said in evidence he believed his chest and breathing problems were the result of damage to his chest in his car accident in September 2021.[33]On 23 May 2022 the Claimant’s GP notes record him as having “a new episode of Mixed Anxiety and Depressive Disorder” and being prescribed 28 days of Sertraline.[34]On 25 May 2022 the Claimant messaged JA asking for a chat and she arranged to meet him the same day.[35]That meeting lasted about 1.5 hrs. The Claimant was more positive and told JA that his workload had improved. There was some discussion of his personal problems. JA’s evidence, which was not contested, was that the Claimant didn’t seem fully engaged in the meeting and was preoccupied with texting his partner.[36]The Claimant didn’t reach out to JA again.[37]On 27 June 2022 the Claimant messaged DM to say he wouldn’t be in the next day as he needed to take a day off “to sort out my mental health before it starts getting bad again”. The Claimant was then absent on 28 June 2022. We 5 of 11 note that DM hadn’t been informed of the Claimant’s meetings with JA and AM in May 2022 and/or the fact the Claimant had been having suicidal thoughts.[38]On 7 July 2022 AM and DM discussed with the Claimant their concerns regarding his attendance, his time keeping and lack of communication with his managers regarding his attendance.[39]On 8 July 2022 the Claimant had a Depression Interim Review with his GP and was prescribed a further 28 days of Sertraline.[40]There is no further reference to the Claimant experiencing symptoms of anxiety and depression in his GP notes prior to the termination of his employment more than a year later, or to any further prescriptions for Sertraline (or other anti-depressant medication).[41]On 11 July 2022 AM messaged the Claimant to find out how he was doing and the Claimant replied to say he was “getting on well” and “enjoying it very much”.[42]On 29 July 2022 there was a review meeting between the Claimant and AM and DM at which the Claimant was told they were happy with the improvements he had made.[43]On 15 August 2022 the Claimant’s GP notes refer to him having various tests including blood tests and thyroid function tests.[44]Between 17 and 22 August 2022 the Claimant had another period of sick absence. This time a return to work form was completed on his return. The reason given by the Claimant for his absence, as stated on the return to work form, was for muscle pains in his back. Further, his GP notes record the Claimant reporting back pain on 17 August 2022 and being seen by a physiotherapist.[45]The return to work form included the following questions: 1. Is this period of absence due to any underlying issues or reoccurring health problems? 2. Do you anticipate any further absences in connection with this period of absence? 3. Is there anything we should be aware of in connection with this absence? 4. Concerns (This could be workload, stress, things going on in your personal life or any other issues you feel that are affecting your wellbeing). 5. Support (What can we do to help?)[46]The Claimant answered “Not that I am aware of” to question 1; “No” to questions 2 and 3. “No, just due to overlifting” to question 4. And “Manual Lifting Training is booked for October 22” to question 5. 6 of 11[47]On 21 September 2022 the Claimant left a two-day training course. When the Respondent found out and asked why, the Claimant said “he felt unwell and couldn’t sleep so just drove back early this morning instead of this afternoon”. He said in evidence that he didn’t regard this as an absence from work as he wasn’t supposed to have been in work that day in any event.[48]On 26 September 2022 the Claimant was absent because, he said, of a worsening cold and needing to take a Covid test.[49]On 16 November 2022 the Claimant was absent because, he said, his grandfather had fallen and hit his head and shoulder and needed the Claimant to accompany him to the hospital.[50]On 23-25 November 2022 the Claimant had a period of sick absence, which he stated on the Return to Work Form were for a stomach infection, cold and flu. The Claimant answered “I’m doing tests to find out. Nothing previously related” to question 1, “Yes to see the doctor” in answer to question 2, and “No” to the remaining questions. The Claimant’s GP notes of 28 November 2022 record reference to the taking and postponing of various tests including blood tests, liver function tests, and faecal immunochemical testing.[51]On 28 November 2022 AM issued the Claimant with a Formal Written Warning (FRW) as regards his sickness absence and advised him that it was significantly impacting the business. The FRW was to remain live on his file for 6 months.[52]On 6 December 2022 a further informal meeting was held by AM and DM with the Claimant to discuss his attendance record for the year, his attitude towards work and his colleagues and his communication regarding his absences from work. The Claimant was told that his absences were unacceptable, that he was leaving earlier than his shift was due to finish and discussed other performance matters. The meeting was recorded in a letter sent to the Claimant of 7 December 2022.[53]The Claimant was absent again on 2 February 2023. A return to work form records him saying “I was not ill, it was a mix of personal issues, the fact I did not sleep. I was sorting my issues out.” Further, that “Jamie mentioned to Alistair and Danny he needed time to go for a DNA test. He also needed time to arrange home improvements for his grandfather”.[54]As regards the questions, the Claimant answered “Not a health issue” to question 1. “No” to questions, 2, 3, and 5. And “Personal stuff at home” to question 4. In cross-examination the Claimant said that this absence was not entirely unrelated to his anxiety and depression “as any parental issues have an effect on your mental health” (the DNA test being relevant to the Claimant’s parental issues).[55]On 28 April 2023 the Claimant messaged to say he wouldn’t be coming in as he had food poisoning. 7 of 11[56]On 4 May 2023 the Claimant messaged to say he wouldn’t be coming in as he “still had the migraine from yesterday and [felt] nauseous”.[57]The Claimant was absent again on 18 May 2023. A return to work form records him saying “he was vomiting on and off all night after flying back from Mallorca”. The answer “no” is given to all five questions set out above.[58]The Claimant was absent again on 14 and 15 July 2023. A return to work form records the reason as “food poisoning”. Again the answer “no” is given to all five questions set out above.[59]The final absence was on 19 and 20 August 2023. A return to work form records the reason as the Claimant becoming “light-headed, dizzy and nauseous on Friday night and vomiting on Saturday”. Again the answer “no” is given to all five questions set out above.[60]On 24 August 2023 the Claimant was given notice of his dismissal with effect from 31 August 2023. The dismissal letters states, “Over the course of your apprenticeship, from the start to the present date, I have had several meetings with you to discuss your performance and work attendance as Parts Apprentice. Throughout this year, your cumulative absence from work due to self-certified sickness has amounted to 8 days, resulting in an absenteeism rate of 4.91%. I consider this to be a high percentage of sickness in your position. Your regular absence from work, due to self-certified sickness, is now having a detrimental effect on the Parts Department performance and more importantly the disruption and unreliability this causes is unacceptable”.[61]The Claimant initially agreed in cross examination that the great majority of his absences were unrelated to his disability of anxiety and depression. However towards the end of Mr Bignell’s cross-examination he then said that some of his absences had been related to his disability but that he hadn’t liked to say so at the time because he felt pressurised by the fact that AM and DM were filling out the return to work forms. The Claimant said he sometimes felt bad and made excuses not to come in and that not every piece of information on the return to work forms were truthful. However he couldn’t now say which parts of which forms were not truthful.Conclusions
[62]Section 15 EqA provides that:(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 (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. 8 of 11(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.[63]The only act of unfavourable treatment relied upon is dismissal.[64]As regards the reason for the Claimant’s dismissal (the “something” that caused the unfavourable treatment), it is not in dispute that this was the fact the Claimant had had 8 days’ sick absence in 2023, which AM regarded as unacceptable in the light of the Claimant’s high level of absences in 2021 and 2022.[65]The first question is therefore whether the Claimant’s absence record, particularly in 2023, arose in consequence of his disability of anxiety and depression. In this respect, while the causal link between the “something”, in this case the Claimant’s absence record, and the unfavourable treatment, in this case the dismissal, may include more than one link, it is “a question of fact, assessed robustly in each case whether something can properly be said to arise in consequence of disability” (Pnaiser v NHS England [2016] IRLR 170 at [31]).[66]The Respondent relies on the fact of the Claimant having 36 recorded absences during the period of his employment and, in particular, 8 absences between 1 January and 24 August 2023. Two of the 36 absences were compassionate leave (4 and 5 May 2022). The only other absences, which on the face of it, were because of stress, anxiety or the Claimant’s mental health were two days, respectively on 25 March 2022 and 28 June 2022. The remaining 32 days – including all of the 8 days in 2023 were, on the face of it, for reasons other than the Claimant’s anxiety and depression. In crossexamination, Mr Bignell went through each of these 32 days of absence with the Claimant and save for the absence on 2 February 2023 the Claimant initially accepted that they were not related to his anxiety and depression.[67]In respect of his absence on 2 February 2023 the Claimant stated his absence was not “entirely unrelated” to his mental health, however he did not contest the fact that he was absent that day in order to get a DNA test and arrange home improvements for his grandfather. While the parental/paternity issues the Claimant was dealing with may well have had an impact on his mental health, we consider the particular absence on 2 February 2023 arose in consequence of the Claimant’s need to carry out personal tasks and not in consequence of his disability of anxiety and depression.[68]As regards his other absences, late in his evidence, as recorded above, the Claimant changed his position and said that at least some of them were related to his anxiety and depression and that on occasions he had not told the Respondent the real reason why he was not coming into work.[69]The burden of proof rests on the Claimant to show a causal connection between his disability and his absences from work. 9 of 11[70]On the basis of the contemporaneous reasons given by the Claimant for his absences, it is clear the great majority of them did not arise in consequence of his disability. The question is whether his late assertion that he did not tell the employer the truth and that some of his absences were because of his anxiety and depression, even though he didn’t say so at the time, is sufficient proof of the causal connection required.[71]In this respect we note the Claimant’s assertion was a very general one, made only in the latter half of his cross examination and not included in his witness statement. Moreover, he was unable to point to any particular absence which he now says arose in consequence of his anxiety and depression but which at the time he said was for other reasons.[72]Furthermore, there is no medical evidence to support the Claimant’s assertion. While the GP notes record that the Claimant was diagnosed with a “new episode” of anxiety and depression” in May 2022 (following the loss of a family member), there are no references in the GP notes to the Claimant’s anxiety or depression, or to any symptoms thereof, in 2021 or at any time after his Depression Interim Review on 8 July 2022 (when he was prescribed the second of two 4-week prescriptions for Sertraline) prior to his dismissal. Although we accept that the Claimant wouldn’t necessarily have gone to his GP every time he had a bad day (as regards his mental health), the fact remains that the notes provide no positive proof that the Claimant’s absences from work (other than on 25 March and 28 June 2022) arose in consequence of his anxiety and depression. Indeed they show that the Claimant regularly attended his GP practice in relation to health concerns other than his anxiety and depression.[73]In addition, while we understand that some employees may be reticent to tell an employer that they are too unwell to come to work because of their mental health, we note that in this case the Claimant doesn’t appear to have been reticent about referring to his mental health. He told his employer even before he started work that he was trying to sort out his (physical and) mental health, that he wasn’t coming into work because he couldn’t cope with the stress (on 25 March 2022) and that he needed a day to sort out his mental health (on 28 June 2022). He had also spoken to JA about his problems with mental health at length on two occasions in May 2022. Further, while the Claimant said he didn’t raise his mental health with his employer after May 2022 because he hadn’t received any support when he did so, we don’t consider this to be a fair assessment of the Respondent’s response. It is true that the Respondent did not make a referral to Occupational Health, however both JA and AM had been supportive of the Claimant, his workload had been lessened and AM had helped the Claimant with some of his apprenticeship assignments. Accordingly, if the Claimant’s real reason for his absences (or any of them) in 2023 had been his disability of anxiety and depression, there’s no reason to believe that he would have hidden that reason from the Respondent.[74]Accordingly, we are not satisfied that the Claimant’s absences in 2023 arose in consequence of his anxiety and depression, and/or that his absences in 2021 and 2022 arose to any material extent in consequence of his anxiety 10 of 11 and depression. It follows that the Claimant was not dismissed for something arising from his disability.[75]Since we have answered the first issue identified at paragraph 9(i) above in the negative, the claim must be dismissed and it is not necessary to consider the second or third issue. Approved by: