Employment Judge QuillIn person for claimantMs S FIrth (instructed by counsel) for respondentDate 13 February 2024
JUDGMENT
[1]From no later than 9 March 2021, the Claimant’s back pain/sciatica was a disability (within the meaning of section 6 the Equality Act 2010).[2]From a date prior to the commencement of the Claimant’s employment with the Respondent, the Claimant’s anxiety was a disability (within the meaning of section 6 the Equality Act 2010).
REASONS
[1]This was an in-person hearing conducted in the Employment Tribunal.[2]This judgment and reasons deals with the preliminary issue about whether the Claimant has the protected characteristic of “disability” within the definition in section 6 of the Equality Act 2010 (“EQA”).[3]I heard witness evidence from the Claimant and, for the Respondent, Michael Powers.[4]I also had the bundle of documents prepared for the hearing by the Respondent. In addition, I had the Claimant’s statement of terms and conditions, which he asked to be photocopied by the Tribunal staff. I had a written skeleton argument from the Respondent.[5]I also had the Tribunal’s paper file, which was used to deduce the dates on which certain of the Claimant’s documents had been created and sent to the Tribunal and the Respondent. The documents had been sent by post, rather than electronic means, and so the date stamp on the front page of each set of documents, each set being bound by paperclips, elastic bands, etc, was used as a guide to when the whole of the set had been submitted.[6]For the reasons I gave orally, I agreed to allow the Claimant to argue that he had a mental impairment (anxiety/depression) as well as a physical impairment (back pain/sciatica) which met the definition of “disability”.[7]The Claimant’s evidence in chief was taken as:7.1 [Bundle 37]. Typed impact statement. (dated circa March 2022)7.2 [Bundle 38]. Handwritten impact statement (dated circa July 2022)7.3 [Bundle 46 to 48]. Response to Further Information request (dated circa July 2022)7.4 [Bundle 106]. Statement as ordered at first preliminary hearing (dated circa September 2022.7.5 Oral answers to my questions.[8]Mr Powers had prepared a written statement.
The law
[9]Section 6 of the Equality Act 2010 (“EQA”) defines disability. 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. ... (6) Schedule 1 (disability: supplementary provision) has effect.[10]The section refers to the need to take into account Schedule 1. The paragraphs in that schedule include the following extracts in Part 1. 2 Long-term effects(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. 5 Effect of medical treatment (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.(3) Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.[11]The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” is issued by the Secretary of State under section 6(5) of the Equality Act 2010. The guidance does not impose any legal obligations and is not an authoritative statement of the law. In other words, where appellate court decisions differ from the guidance, then it is the court decision which takes precedence in the interpretation of the legislation. The guidance must be taken into account (Part 2 of Schedule 1, paragraph 12), but, ultimately, it is the legislation itself which must be interpreted and applied by the Tribunal.[12]The Guidance includes the following extracts. Meaning of ‘impairment’ A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. Section B: Substantial Effects of behaviour B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities. For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities. (See also paragraph B12.) When considering modification of behaviour, it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing. It would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping or using public transport. B10. In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment. Effects of treatment B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1. Section C: Long-term Recurring or fluctuating effects C5. The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ (Sch1, Para 2(2), see also paragraphs C3 to C4 (meaning of likely).) C6. For example, a person with rheumatoid arthritis may experience substantial adverse effects for a few weeks after the first occurrence and then have a period of remission. See also example at paragraph B11. If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as longterm. Other impairments with effects which can recur beyond 12 months, or where effects can be sporadic, include Menières Disease and epilepsy as well as mental health conditions such as schizophrenia, bipolar affective disorder, and certain types of depression, though this is not an exhaustive list. Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant. C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether. Assessing whether a past disability was long-term C12. The Act provides that a person who has had a disability within the definition is protected from some forms of discrimination even if he or she has since recovered or the effects have become less than substantial. In deciding whether a past condition was a disability, its effects count as long-term if they lasted 12 months or more after the first occurrence, or if a recurrence happened or continued until more than 12 months after the first occurrence (S6(4) and Sch1, Para 2). Section D: Normal day-to-day activities Meaning of ‘normal day-to-day activities’ D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. D5. A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as breast-feeding or applying make-up, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities. Specialised activities D10. However, many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner. Indirect effects D22. An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse effect on how the person carries out those activities. For example:• pain or fatigue: where an impairment causes pain or fatigue, the person may have the ability to carry out a normal day-to-day activity, but may be restricted in the way that it is carried out because of experiencing pain in doing so. Or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time. (See also paragraphs B7 to B10 (effects of behaviour));[13]Furthermore, by virtue of section 15 of the Equality Act 2006, the Tribunal should take the Equality and Human Rights Commission’s Equality Act 2010 Code of Practice into account. The EHRC has published both an Employment Statutory Code of Practice and a supplement to it. The questions to be answered[14]In Goodwin v Patent Office [1999] I.C.R. 302, the EAT provided guidance on the for the Tribunal to adopt when making a decision about “disability” in accordance with the definition in the Disability Discrimination Act 1995. The following four questions should be answered, and treated as separate questions, albeit some of the evidence and analysis will overlap between the questions and albeit answering these questions separately must not get in the way of examining the evidence as a whole and adopting a purposive approach to interpreting and applying the actual statutory wording.14.1 Did the claimant have a mental or physical impairment? (the ‘impairment condition’);14.2 Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? (the ‘adverse effect condition’);14.3 Was the adverse condition substantial? (the ‘substantial condition’);14.4 Was the adverse condition long term? (the ‘long-term condition’).[15]In Sullivan v Bury Street Capital Limited Neutral Citation Number: [2021] EWCA Civ 1694, the Court of Appeal approved the following list as setting out the questions that a tribunal is required to address when determining whether or not a claimant is disabled for the purposes of the Equality Act 2010.15.1 Was there an impairment?15.2 What were its adverse effects?15.3 Were they more than minor or trivial?15.4 Was there a real possibility that they would continue for more than 12 months or that they would recur?[16]Effectively this is the same as the list produced in Goodwin (and the fourth question is to be re-worded when the claimant is seeking to argue that the effects had already lasted 12 months by the relevant date).[17]The Respondent’s knowledge is not directly relevant to any of these questions or, more generally, to the issue of whether a person meets the definition in section 6 EQA. However, of course, evidence from the Respondent (whether witnesses or documents) can be taken into account when deciding whether there is any corroboration for (or undermining of) the Claimant’s account to have been suffering from particular adverse effects at particular times.[18]The point in time which the question of disability is to be determined is the date of the alleged discriminatory act or omission. That, therefore, is the date to be used when deciding all of the four questions, including, importantly, the fourth (the long term condition).[19]If the definition is satisfied as of the date of the earliest alleged act, then it might not be necessary to separately consider later dates as well. However, where necessary, that can be done. In any event, if the definition is not satisfied as of the earliest alleged discriminatory act or omission, then the four questions can be answered as of the dates of each later complaint. Impairment Condition[20]For the first of the four Goodwin questions, there is no further statutory definition of either “physical impairment” or “mental impairment”. The expressions should be given their ordinary and natural meaning. If there is found to be no impairment, then the definition in section 6 EQA is not met. An adverse effect on day to day activities is not sufficient, if not caused by an impairment. However, the existence of an impairment can, in an appropriate case, be inferred from the evidence of adverse effects. As noted in paragraph 40 of in J v DLA Piper UK LLP [2010] UKEAT 0263/09/1506 (in a passage which is reflected in the Guidance): “In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the claimant's ability to carry out normal day-to-day activities has been adversely affected on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.”[21]In Walker v Sita Information Networking Computing Ltd [2013] UKEAT 0097/12/0802, the EAT said: “That is not to say that the absence of an apparent cause for an impairment is without significance. The significance is, however, not legal but evidential.” In other words, where there is no identified cause of the alleged effects/symptoms, it is open to a Tribunal to conclude that the claimant does not genuinely suffer from them. The EAT pointed out that “that is a judgment made on the whole of the evidence”. Adverse Effect Condition[22]For the second of the four Goodwin questions, the focus is on what the claimant cannot do, or can only do with difficulty, rather than on the things that they can do. The fact that a claimant can carry out a particular normal day-to-day activity does not mean that their ability to carry it out has not been impaired. When deciding the legal question, it is wrong to conduct an exercise balancing what the claimant cannot do against the things that they can do (because the focus must only be on what they cannot do, or can only do with difficulty). That does not mean that there can be no evidence/analysis about what the claimant can do. For one thing, it can be part of identifying the boundary between what they can and cannot do. So knowing that a person can walk 500m unaided would be a relevant part of the analysis if the evidence was that they could not walk 1000m unaided. Furthermore, where the claimant’s evidence is disputed, then evidence that they can actually perform certain activities might be relevant evidence when deciding whether to accept their assertions that there are other particular activities that they cannot do.[23]As per Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522, the requirement is to examine the effect on the individual, and this involves considering how the claimant carries out the activity compared with how they would do if not suffering the impairment.[24]The expression “day to day activities” encompasses activities which are relevant to participation in professional life as well as participation in personal life. It is not further defined in the legislation, and should be given its ordinary meaning, taking into account the Guidance and the Code. D3 of the Guidance give some examples, but, of course, it would be impossible to create a complete list of an expression which is capable of covering such a large range of the things that humans do.[25]As per D5 of the Guidance, the fact that only a minority of people perform a particular activity does not necessarily mean that it is not within the definition “normal day-to-day activities” and nor does the fact that people do not perform the activity on more days than they do not perform it. However, there are some things that are so specialised, or so rarely done by any human, that they would not be considered “normal day-to-day activities”. Substantial Condition[26]For the third of the four questions identified in Goodwin, section 212(1) EQA defines “substantial” as meaning “more than minor or trivial.”[27]It was pointed out in Aderemi v London South East Railway Limited [2013] ICR 591 that the analysis must not proceed on the basis that there is “a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial” but rather on the basis that “unless a matter can be classified as within the heading ‘trivial’ or ‘insubstantial’, it must be treated as substantial”.[28]In Rayner v Turning Point UKEAT/0397/10, it was held that (although the question of whether there is a substantial adverse effect is a matter of fact for the tribunal to determine), in circumstances where a claimant is diagnosed with a condition by their GP (in Rayner, the condition was anxiety) and the GP advises them to refrain from work, then that is, in itself, evidence of a substantial effect on day-to-day activities because were it not for the condition (anxiety in that case) the claimant would have been at work. Day-to-day activities can include going to work.[29]When deciding which (if any) day-to-day activities are affected and whether the effect was substantial, then various matters might need to be taken into account, depending on the particular circumstances of the case. These include:29.1 Does the impairment cause the claimant to avoid doing a particular thing because (for example), it causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation.29.2 The time taken to carry out an activity.29.3 The way in which the claimant carries out the activity;29.4 The cumulative effects of the impairment;29.5 the cumulative effects of more than one of impairment;29.6 the effect of behaviour;29.7 the effect of environment29.8 the effect of treatment (which is any treatment, not just medication). Long term condition[30]The fourth Goodwin question is the long term condition. As mentioned above, the question is to be answered as of the date of the alleged contravention of EQA. [Subject to the qualification that, as per section 6(4) EQA, someone who previously met all elements of the definition, but no longer does so, is also covered, if the alleged contravention is due to the past disability. To be covered as having a past disability, the claimant would have to demonstrate that there was a time in the past, that is before the alleged contravention in question, that they met the long term condition (as well as the all the other requirements)].[31]There are three different routes by which a claimant can satisfy the long term condition (paragraph 2 of schedule 1 EQA). Where the claimant cannot demonstrate that the substantial adverse effects of the impairment had already lasted 12 months (by the relevant date), then they must demonstrate that the substantial adverse effects of the impairment were (as of that date) “likely” to last either long enough to reach the 12 month mark, or else for the rest of the claimant’s life.[32]The question of whether the effects are likely to last for more than 12 months is an objective test based on all the evidence, and it is not relevant whether the employer or employee knew (or ought to have known) that the effects were likely to last long enough.[33]In this context, the word “likely” means "it could well happen" and does not impose a requirement that it was more probable to occur than not occur: SCA Packaging Limited v Boyle [2009] UKHL 37; [2009] ICR 1056.[34]Conditions with effects which recur only sporadically or for short periods can still qualify as long term impairments. If the effects on normal day to day activities are substantial and are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. It is for the claimant to establish this, but it is sufficient that they show that "it could well happen" that the substantial adverse effects recur (beyond 12 months).[35]The likelihood of recurrence is to be assessed as at the time of the alleged contravention. It does not follow from the fact that there was actually a subsequent recurrence of an impairment that, as of the date of the alleged discrimination, it must have been “likely” that there would be a recurrence. The issue of whether a recurrence was “likely” cannot be judged retrospectively, based on what actually did happen after the relevant date; however, evidence created later (especially medical reports) can still be taken into account to help answer the question about whether, as of the relevant date, recurrence was likely.[36]As noted in Sullivan, the fact that the substantial adverse effect has recurred episodically might strongly suggest that a further episode was something that (as of the relevant date) “could well happen” again in the future. However, that is not an inevitable finding. Each case must be decided on its own facts and evidence. Treatment[37]When considering each of the four Goodwin questions, as per paragraph 5 of schedule 1, it is important to effectively ignore any beneficial effects of treatment and to ascertain the effects on day-to-day activities as it would otherwise be but for that medical treatment.[38]This provision applies even if the ongoing treatment results in the effects being completely under control or not at all apparent. However, if the treatment results in a permanent improvement or “cure” (such that ongoing treatment is not required to keep the effects at bay) it will be necessary to consider whether the effects of the impairment, prior to the treatment, were sufficiently “long term”. Evidence Issues[39]Medical evidence is likely to assist the Tribunal but, ultimately, it is the Tribunal’s legal determination, based on the totality of the evidence, that counts. A claimant who fails to produce medical evidence to support their case runs the risk that the Tribunal will decide that they have failed to meet their burden of showing that the Section 6 definition is met. However, there is no rule of law that medical evidence is essential in order for the Tribunal to be satisfied that the definition is met.[40]In accordance with normal principles, if the Tribunal decides that either party (the Claimant or the Respondent) had documents in their possession that they have failed to disclose, then they run the risk of the Tribunal deciding that they did so deliberately, and that they did so because the documents undermined their case. However, in accordance with normal principles, not every failure to disclose will lead to that result, and the Tribunal might decide to accept the party’s explanation for the failure, and/or accept that the missing documents did not assist the opposing party. Was an effect a reaction to a life event[41]When a claimant alleges that they have a mental impairment which satisfies all elements of the definition, the Tribunal might have to take into account the guidance issued in J v DLA Piper UK LLP [2010] IRLR 936. Although decided on pre–Equality Act 2010 legislation, it gives guidance that is still relevant about the need to precisely analyse the effects of any alleged mental impairment and to distinguish between, on the one hand, that people’s moods can change and people can have a low mood and can feel anxious about things because of life events (the type of thing that might affect almost everybody from time to time) and, on the other hand, the effects of an impairment. There are many life events that can upset people and cause a great deal of distress (and some people will have more severe reactions than others). The Court made it clear that it is important to note that even if somebody has exhibited significant symptoms of distress on several different occasions, if each occasion was reacting to particular life events, then that might not demonstrate they had a “physical or mental impairment” or that they necessarily meet all parts of the definition in s.6 of the EQA.[42]As discussed in Sullivan (paragraph 92), the point being made in DLA Piper is that where there are examples of symptoms at different periods, then one possible inference from the facts, if the evidence supports it, is that those separate examples were all due to a continuing impairment, and are examples of the underlying condition being severe (or worse than typical) at those times. However, that is not the only possible conclusion from the facts. Another possibility is that they were separate reactions to separate life events.[43]Where there is an underlying condition, then it might well be possible to associate particular severe bouts with particular life events that acted as a trigger. Thus great care must be taken when analysing the evidence. A finding that a particular period during which there was a substantial adverse effect followed on from a particular life event which contributed to the onset of particular effects does not disprove the existence of a continuing impairment or disprove that it was that impairment which affected the claimant’s normal day to day activities.[44]In Herry v Dudley MBC UKEAT/0100/16, the EAT discussed the guidance in DLA Piper (saying it had “stood the test of time and proved of great assistance to Employment Tribunals”) and how it might be relevant in circumstances where medical evidence has used phrases such as “stress” or “work-related stress” or similar in reference to the claimant. The EAT noted that it was important for tribunals to be aware that “work related issues can result in real mental impairment for many individuals, especially those who are susceptible to anxiety and depression.” That being said, even in cases where the substantial adverse effect is long term: Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess. Relevant Date for the Assessment[45]According to the list of issues produced at the first preliminary hearing, the allegations of contraventions of EQA all relate to the Claimant’s dismissal on around 2 June 2021. 46. 2 June 2021 is therefore one date at which it must be assessed whether the Claimant had any impairment which met the section 6 definition. However, one the complaints is that the Claimant was dismissed because of something arising in consequence of disability (absence and/or work rate). The summary notes that the Claimant (in relation to sciatica/back pain specifically) said, at the first preliminary hearing that it was from “in or around 2020” onwards that the “something arising” commenced and began to cause his relationship with managers to deteriorate. Thus “in or around 2020” is an earlier date at which it must be assessed whether the Claimant had any such impairment.[47]The Claimant did not tell the judge at that hearing that he was also seeking to rely on an alleged mental impairment and so there is no discussion in the summary about which dates might be relevant. However, the claim form includes: [I] started sorting for this company on 31/05/2016. I had no problems and work rate was good I was told. A few years later I started to suffer from serious allergy and back pain (Sciatica). I asked my manager if I could have lighter duties until further notice, my request was refused. … then in june 2020, one of my manger was complaining about my work rate, and we fell out over it. Things went downhill when I refused to do any overtime until I had my back looked at by a doctor … [after listing incidents between 6 August 2020 and 8 March 2021] In the space of five months, I was on final warning after 5 years clean records .[48]Thus, to the extent that the Claimant is arguing that the alleged “something arising” (absence and/or work rate) was in consequence of mental impairment, he does not appear to be arguing that those “somethings” commenced any earlier than June 2020. Claimant’s Evidence and Medical Evidence[49]The Claimant’s impact statements created before the first preliminary included reference to the following alleged impairments: “sciatica”, “Urticarial (stress related allergy)” and “Mixed anxiety and depressive disorder”.[50]He wrote: I have been suffering from these impairments since June/July 2020, these impairments/ effects are ongoing. The effects of these impairments cause me to suffer from mood swings, anger management issues. I am also anxious and irritable on a daily basis, sleepless nights and serious back pains. These impairments cause me to be very argumentative, to avoid trouble I shop at night, crowds are an issue for me now. I spend most of my time in bed due to my medication and my mental state. I spend my days alone.[51]He described his medication and said he thought the effects would be worse, but for the medication.[52]In oral evidence, he denied that the impairments had commenced in June/July and alleged that they actually had commenced before he started working for the Respondent. He asserted that he had simply meant that the effects became worse in June/July 2020.[53]The further information document produced prior to the first preliminary hearing (which was the document which the Claimant had told the Respondent would stand as his witness evidence for this public preliminary hearing) included: I Started working at Gist on the 31st of May 2016. I had no issues and my work rate was good so I was told by numerous managers. A couple of years later I started to suffer from a serious allergy plus back and sleeping problems. I notified my line managers …. I informed them about the time I had to take my medications and I also requested lighter duties i.e. duties requiring less bending. I was told I didn't have to set up 'dollies' in the 1 st chamber anymore, because that required a lot of bending. But as for my 7hour work-related duties they remained the same I was told there are no lighter duties on offer and if I can't do what is required of me, I should look for another job this conversation took place in his office on my 9:30pm shift some time in May/ June 2020 (exact date not recalled). I carried on until my back injury stated to get worse causing me to have sleepless nights plus mental issues such as stress, anxiety & depression; as a result my work rate slowed down. During June & July 2020 John Davis was constantly bothering me about my work rate and … On 10th September 2020 at 9:30pm I arrived at work although my back pain was excruciating. …. At this stage I left work and went home. I booked another doctor's appointment that week and was diagnosed with sciatica and urticaria (allergies which caused hives). I was signed off of work for 2weeks. After returning to work on 24th September 2020 …. On 21st October 2020 I was issued investigation number two alleging lateness from me in June 2020. … For 4years prior I had worked with no issues, until I began suffering back pain…[54]In a separate document which answered the Respondent’s questions dated circa 23 June 2022, about which medical conditions he was relying on, and the dates of the effects of those conditions, the Claimant wrote (prior to first preliminary hearing) [Bundle 158] Mainly the Sciatica plus Urticaria. The Sciatica stopped me from completing certain duties i.e., heavy lifting plus back bending duties. The Urticaria (allergies) stopped me from some dust related duties, and this seemed to be a problem for some of the managers and referred to his medical evidence for further details.[55]The statement produced after the first preliminary hearing stated (in its entirety): How sciatica has affected my normal day activities? Considering sciatica is a serious back pain issue, this means simple household activities like cooking, cleaning, and washing have been hard to complete. Take cooking for instance, I cannot bend over the cooker for long without my lower back feeling in pain. So, preparing meals is out of the question, once I bend sometimes it is painful straightening up again. This means that using the oven is a big problem. At the moment I am having microwave meals and home deliveries. House cleaning is also an issue, cleaning surfaces is not as difficult but hoovering and cleaning that involves bending my back. Bathing has also become an issue, bathing my top half (head down to waist) is not too much of a struggle, but trying to bathe the rest of my body is very painful and time consuming. Even sitting down to watch television is a problem, because to get back up is agonising. So, I spend most of my time in a lying down position, this is the only position that causes me no stress. Most of the normal day to day activities take a lot longer to complete due to my sciatica. I started to experience these effects a few months prior to when I was diagnosed in September 2020. I wouldn't be able to say how long it is likely to last, I can say it has been almost two years and I am still suffering from sciatica and my medication is ongoing. It seems to be getting more unbearable, possibly due to my age or the fact that there is no instant cure. Between May 2020 and the 2nd of June 2021, my ability to complete work related activities was limited due to the fact of my back problem. To complete my work tasks, I was constantly taking painkillers and the speed in which I'd usually complete a task had changed. I became a lot slower now, which became a problem for my bosses. This is when they started their campaign to get rid of me. Medical Records[56]I note the contents of the letter from Dr Cole at [Bundle 107]. Based on that, I am satisfied that the Claimant has attempted to obtain a full and complete record of his GP notes. To the extent that there are missing copies of any letters (eg from hospitals, following assessments), I am not satisfied that the Claimant has received those items from the GP, still less that the contents were contradictory to his case and that they were deliberately withheld.[57]There is a “to whom it may concern” letter written by the Claimant’s (then) GP and dated 8 September 2014. This was produced in connection with a dispute between the Claimant and a previous employer. The opening paragraph included: [the Claimant] started to have issues with mental health, stress and anxiety from August 6 2012; he mentioned that he was having stress at work. Since then he has gradually being deteriorating from stress to anxiousness to panic disorder and depression. He has been on antidepressants 20mgs of Fluoxetine once a day, Hydroxyzine 25mg 1-2 at night and we have also organised for him to have counselling and he is undergoing Cognitive Behavioural Therapy.[58]The reference to CBT refers to the fact that the Claimant was recommended, by his GP, to have this. The NHS was not willing (or not able) to fund individual sessions. The Claimant went to one session, but decided that it was not suitable for him (because it was several people in the group) and did not continue.[59]I do not accept the Claimant’s suggestion that the GP told him that depression/anxiety meant that he was argumentative (or similar) and that the CBT was for that. That is not corroborated by the letter as a whole, or by the other evidence.[60]The letter referred to the loss of his job (with the previous employer) and continued: … since then he always seems to be stressed with anxiety, low self-esteem and lack of motivation, insomnia and panic attacks. This is affecting his activities of daily living such as socialising; managing his own affairs also he feels lack of ability to hold down a full time job. The problem is one of mental health issue given his current frame of mind he does not feel that he is capable of working, and we are trying to get him to engage more with the Mental Health Team to try and tackle his problem and until his current mind frame and his motivation issues are resolved it would be very difficult for him to hold down a job or indeed be employable.[61]In around 2010, the Claimant suffered a knee injury, which was discussed in several GP appointments .[62]On 17 January and 6 August 2012, knee pain was discussed. On the latter occasion, ibuprofen was prescribed in relation to the knee pain. That appointment also referred to stress, and the Claimant was signed off for a week both for knee pain and stress. He had reported “not eating, not sleeping”.[63]On 21 August 2012, he was signed off for a month with “stress” and the same again 19 September 2012 and 18 October 2012.[64]On 21 November 2012, as well as the GP issuing a further one month sick note for “stress”, there was a discussion about “back pain”. There was a referral to hospital which led to surgery on 25 February 2013.[65]Further one month sick notes for stress were issued in December 2012 and January 2013 and on 11 February 2013. For the subsequent months, each one month MED3 sick note/fit note appears to have referred to effects of the surgery rather than stress.[66]On 5 June 2013, he attended his GP and the entry shows that he requested, and was prescribed, an antidepressant. No other details were written. The prescription was for Fluoxetine 20mg capsules, one per day, and he was issued with 30 days’ worth.[67]On 10 September 2013, the GP surgery appears to have received details of a mental health review carried out by Barnet Mental Health. I do not have a copy.[68]On 19 November 2013, the GP surgery appears to have received details of the Claimant’s attendance at mental health clinic operated by North Middlesex University Hospital Mental Health. I do not have a copy, but infer this probably is about the one CBT session which the Claimant attended.[69]On 20 November, the Claimant reported to his GP that, amongst other things, he was suffering from stress.[70]On 19 December 2013, the GP recorded “Problem Anxiety with depression (First)” and “Problem Cannot sleep - insomnia (First)”. It stated “due to have CBT also wants to take regular med, not been taking fluox properly”. Nothing new (for any mental health condition) was prescribed.[71]On 30 December 2013, a MED3 sick note was issued for 19/12/13 to 10/02/14 for “stress related problem”.[72]On 21 March 2014, the GP recorded “Problem CIO - low back pain (First)”. Naproxen was prescribed for that, and 28 days’ worth was issued. History above RIF, mm tenderness, ibuprofen not helping, no red flags advised to review in 2 weeks[73]The Claimant was seen in accident and emergency on 2 April 2014, at North Middlesex Hospital. The discharge record shows 8.19am arrival and 11.09am discharge. He was discharged to his own home. It is entirely possible that he actually arrived earlier than 8.19am and that that time is the first time he was seen by a clinician. However, even so, the fact that he was sent home so quickly satisfies me that the hospital had no particular concerns for his safety. The primary diagnosis was said to be “anxiety” and the assessment stated: BIBA PATIENT TOOK HIS USUAL MEDICATIONS THIS MORNING AND HE THINKS HE IS HAVING AN REACTION BECAUSE HE FEELS TIRED PMH- DEPRESSION .BACK PAIN NKDA O/A NO DIB NO SOB.NO CHEST PAIN,NOT SWEATY OR CLAMMY[74]A “To whom it may concern” letter was produced on 6 June 2014. Seemingly the purposes was just to confirm that the Claimant had attended the surgery on 19 and 30 December 2013 and state his medication. [Bundle 116]. On balance of probabilities, this was also in connection with his dispute with his previous employer.[75]The 12 August 2014 entry records the Claimant as having reported: “I am still depressed, l want psychoanalysis, I am not sleeping ASDA did this to me”. At the Tribunal hearing, the Claimant disputes that this is an exact quote. The entry refers to legal action against ASDA (which did take place, the Claimant says). It stated the counselling had not yet taken place and increased the fluoxetine dosage.[76]The surgery appears to have received letters from the mental health clinic on 5 September 2014 and 9 October 2014. I do not have copies.[77]On 4 February 2015, there was a visit summarised by GP as “Problem Allergic urticaria (First)”. This appears to have been a reaction to something the Claimant had eaten. The effects continued for at least a few weeks, and he was referred to hospital (and sought a second opinion) and received an epipen and advice on how to use it. The 13 April suggested that several different foods brought on the allergic reaction. The 1 April entry included: “patient very distressed that doctors are not looking into cause of allergy but advising how to manage it instead. He believes it is certain foods, asked patient to prepare a food diary while he awaits new referral, … feels supported by the GP practice”.[78]Further entries followed in connection with the same thing. The 19 February 2016 entry stated: Problem URTICARIC RASH HAS HAD THIS PROBLEM ON AND OFF 3 YEARS Examination URTICARIC RASH Comment EXPLAINED 50%TIME CAUSE NOT KNOWN BUT EGG TOMOATO SHELFISH NUTS SEEN DERMATOLOGIST[79]A 29 April 2016 entry also referred to skin blotches. Rightly or wrongly, the GP’s inference was that allergy was still the most likely explanation.[80]The Claimant attended Accident & Emergency on 2 April 2017 and 5 August 2017 respectively. In between, he was seen in the orthopaedic clinic once (and did not attend once) and physiotherapy department (from which he was discharged). There are no further details.[81]The 31 August 2017 entry refers to a history of multiple allergies and that the Claimant (and his medical advisers) were unsure of specific allergens. Medication was prescribed.[82]On Thursday 10 September 2020, an entry records that information from NHS 111 has been received about “numbness of lower limb”. The Claimant also saw the GP that day, and the entries stated that: Problem Sciatica (First) History sudden onset RHS buttock pain shoting down R leg-no injury no alarm symptoms works lorry driver/manual work- needing time off work 83. 28 days’ worth of Naproxen was prescribed and 100 tablets of Co-codamol (between about 12 and 25 days’ worth). A fit note referring to sciatica was issued for the period 10 to 24 September. The Claimant is recorded as having telephoned and asked for the note to be backdated, and having that request refused.[84]The note includes “says he will be put on a disciplinary at work”. I accept that this was because the Claimant was telling the surgery that he believed that he would be disciplined if he could not produce a certificate for the whole of the absence, and he was not referring to the disciplinary letter which (on the Respondent’s case) he was given shortly before leaving the site part way through his shift.[85]On 12 March 2021, there was an entry “Problem Sciatica (New)”. A fit note for 9 March to 23 March 2021 was issued.[86]The 26 March 2021 entries refer to a telephone consultation: 2 week history of generalised blanching patches over his body that he has attributed to ’’allergy”. They improve with antihistamine and are worse at night. He believes stress to be a trigger and recently has an ongoing employement related issue. Mr lyashare has a 20 year history of this type of reaction but goes long periods between flares, for example the last one was 6 months ago[87]The advice was: Thanks for the photo. This is something called urticaria. It is the skins response to allergy and stress. I will give you a prescription for e45 and some strong anithistamine tablets which should clear this up in a few days. If it recurs at regular intervals do call back[88]It was recorded as “Problem Allergic urticaria (Review)” and medication was prescribed.[89]On 30 March, a different GP wrote: l have had a look at your images of your rash. Looks like a Fungal infection (Ring worm) I will send you a prescription cream for this- please apply for 2-3 weeks as directed. Take regular photos through-out treatment for progress, if getting worse you will be needed to be seen face to face after 3 weeks.[90]On 26 April 2021, a new fit note for Sciatica, urticaria was issued without seeing the Claimant.[91]On 17 May 2021, further medication for the sciatica was issued after a telephone conversation. A one week fit note was issued on 25 May 2021 for sciatica and allergy. Further notes for sciatica were issued during June 2021. On 7 July 2021, it was recorded that the Claimant was unable to sleep and was feeling depressed. Occupational Health[92]The Respondent has not obtained and disclosed any information held by its occupational health provider. The Respondent’s counsel informed me that she had been instructed that the Respondent does not receive, from the provider, copies of any initial health questionnaires.[93]During cross-examination of the Respondent’s witness, and in closing submissions (though not while giving evidence on oath) the Claimant made two assertions. Firstly that there was no assessment done at all in 2016 before, or near the start of his employment. Secondly, that the document [Bundle 84-85] was produced because there was an assessment done in around April 2017. He alleges that, during that assessment, he informed Occupational Health about his anxiety, and his back pain, and his skin conditions.[94]The Respondent provided no witness evidence in relation to the document, but invites me to infer that [Bundle 84-85] is not the Claimant’s initial health assessment, but was produced because the Claimant had gone to A&E a couple of weeks earlier with a sore wrist. The document simply says that there was an assessment on 11 April 2017 and the Claimant is “suitable for role” and “fit for normal duties”. That is, it is a tick box form, and they were the only two ticks, and no additional information was included.[95]I do not agree with the Claimant that there is anything suspicious either about the fact that the signature was 13 April 2017, or about the fact that the signature box is split over two pages in the bundle. I am satisfied that this is a genuine document, and has not had any information deleted from it.[96]In the absence of evidence to the contrary from the Respondent, I accept that the Claimant did not have an initial assessment by OH in 2016. It is entirely possible that, as the Claimant claimed in the hearing, he gave the Occupational Health Advisor information that she did not write in this form. Whether she included it in documents held by OH is something that I am not going to speculate about because, even if she did, that would not help me to know what she wrote, or whether she expressed any opinion on what the Claimant said. This meeting with OH was six years before the hearing before me and I am not satisfied that the Claimant has a clear recollection of it. He certainly had not mentioned it before in the course of these proceedings and, on his own account, he had forgotten about it until he saw the document in the hearing bundle.[97]I am not persuaded that the Claimant said anything to the Occupational Health Advisor, in April 2017, about either back pain/sciatica, or about anxiety/depression. Given the nature of the Claimant’s duties, I think it more likely that not that, had he described back pain, and had he claimed to be taking over the counter pain killers for it, then the Occupational Health Advisor would have commented about that in the form. The Claimant’s work history and Mr Powers evidence[98]I do not think it particularly relevant to the issues that I have to decide that the Claimant’s duties included manually pushing around heavy containers on wheels, and other physical activities. I do understand that the Respondent is not inviting me to make the mistake of balancing what the Claimant can do against what he cannot do. The Respondent is making the different argument of inviting me to decide that the Claimant’s assertions about what he is unable to do lack credibility, provided I am satisfied that he performed the duties as described throughout his employment. However, the Respondent has, in fact, failed to prove that the Claimant did do the full range of his duties. The Claimant’s evidence was consistent about not doing the full range of his duties (albeit inconsistent about whether that was because(i) management agreed to reduce his duties when he told them about back problems, or else(ii) because after management refused to approve any adjustments he unilaterally decided not to perform certain activities anyway). The Respondent’s evidence was that the Claimant “was not always the hardest worker. Sometimes you struggled to find him and got the impression he could not be bothered.” The Claimant takes issue with that characterisation of his work ethic, but, as far as the issues that I have to deal with, the relevant point is that, even on the Respondent’s own case he was not always strenuously exerting himself through every shift.[99]Furthermore and in any event, the Claimant’s doing the duties as described (in which he drove a fork lift truck) would not demonstrate that he was not taking pain killers to enable him to do them, and would not prove that there were not particular effects (such as inability to bend down, and/or sleeping problems).[100]I am not persuaded that the Claimant informed the Respondent of back pain/sciatica before September 2020. It was not a feature of his fit notes or return to work interviews.[101]The Claimant did inform the Respondent that he had a skin condition and needed to apply cream. He told the Respondent that he needed to go to his car to do this. I reject the Claimant’s assertion that he told the Respondent that he needed to go to his car to take medication for either back pain or any mental health condition. I accept Mr Powers’ evidence that, in fact, the Respondent and its managers were not particularly happy that the Claimant told them that he needed to go to his car during his shift, but they felt obliged to accept the Claimant’s assertions that he preferred the privacy of his car rather than using the changing room. (I need make no finding about whether they actually believed him that that was the reason for not being where he was supposed to be to perform his duties; I do accept that, whether they believed him or not, they thought they had to accept his account that that is what he was doing.) It is implausible that the Respondent’s managers would have allowed him to go to his car (regularly) to take tablets, and I find that that was not the reason which the Claimant gave to them for the trips to the car. Analysis and Conclusions[102]My finding is that the Claimant has not demonstrated in this hearing that his skin condition is caused by stress or any mental impairment. To the extent that causation is relevant to any future matter that the Tribunal needs to decide, causation can be addressed then. However, his GP and the hospital appear to have proceeded on the basis that an allergic reaction to some unidentified foodstuff was the most likely explanation. (I do take account of the 26 March 2021 SMS message which said that the photos were consistent with a reaction brought on by stress. However, there was one a few days later which suggested ringworm. The weight of the medical evidence was that a food allergy was most probable).[103]There was very limited evidence about the skin condition in the impact statement documents supplied by the Claimant before the first preliminary hearing. Other than saying it stopped him doing some “dust related duties”, the Claimant did not deal with it in his written documents. His account that bathing was difficult was said to be because of back condition. He did not say which foods could be avoided to prevent the condition. This is because (in part, at least) his argument was that it was brought on by stress (which has not been proven to my satisfaction), but my finding is that, in any event, the Claimant is not aware of which (if any) particular foods can/must be avoided to prevent the reaction.[104]He informed the judge at the preliminary hearing that “while he suffered from allergies as well the main condition for the purposes of his claim was sciatica and that the symptoms came on from around May or June 2020”.[105]At this hearing, he made clear that he had not intended to abandon his argument that he had mental impairments which satisfied the definition in section 6 EQA, notwithstanding that he had not raised that at the first preliminary hearing. However, the allergic reactions affecting his skin are in a different category. He did mention that to the judge at the preliminary hearing, and made clear that it was not the impairment which he was relying on for his claim.[106]The Claimant does seem to have a medical condition which causes an allergic reaction from time to time (probably when he eats a particular unidentified substance). There was no evidence of which particular day to day activities were affected, and that is because the allergy is not something that the Claimant is relying on for his claim; rather he relied on an assertion that the skin condition is a symptom of his mental health impairment, which I do not accept. Back pain / sciatica[107]The surgery which the Claimant had on 25 February 2013 was for hernia, and before that he had a knee problem. There is no medical evidence that, and I am not satisfied by the totality of the evidence that, either of these caused ongoing back pain.[108]There is a brief mention of back pain in the 21 November 2012 GP entry. It is mentioned alongside “Runny nose, cough, sore throat” and also in the same appointment which discussed possible hernia. There is no further mention of back pain until 21 March 2014. It seems unlikely that the cause of the March 2014 symptoms is the same as the November 2012 symptoms. There is certainly no medical evidence to say so, and the context of the 2012 entry makes it likely that the pain discussed on that occasion was connected with the other medical issues which were reported at the time: in the case of any cold/flu symptoms, they must have cleared up within the usual time frame as they were not mentioned again; in connection with the hernia, the surgery in February was successful, albeit the recovery period seems to have lasted a few months.[109]The 2012 back pain did not last 12 months, and nor, when it ended (around November 2012, as far as the evidence shows) was it likely to recur.[110]The back pain mentioned in March 2014 must have commenced some time prior to the appointment on 21 March, because the Claimant reported that he had tried over the counter ibuprofen, and needed something stronger. However, my finding is that it only started a short time before then. Stronger medication was prescribed, but only a month’s worth. The Claimant did not come back for more medication after that. Furthermore, despite having fairly regular visits to the GP about various issues, there is no further specific reference to back pain until September 2020. As mentioned in the findings of fact, there are some mentions of orthopaedic clinic and physiotherapist in 2017, but the Claimant has not given any oral evidence (or produced any documents) to suggest that that was in connection with back pain. Dr Cole’s 17 June 2022 letter [Bundle 106-107] does not identify sciatica (or back pain) as an issue earlier than September 2020; had it been her opinion that the sciatica had been the reason for the 2017 hospital attendances, then she probably would have said so. In any event, the Claimant had the opportunity to adduce such evidence if relevant to his case.[111]I conclude, therefore, that between 2014 and 2020, the Claimant was not having back pain or back problems. In that period, he was not struggling to bend down, and nor was back pain keeping him awake at night, and nor was he having to take medication to mask pain.[112]By mid- to late-April 2014 the March 2014 back pain had been resolved, and it was not likely to recur.[113]In September 2020, the Claimant did experience back pain. The Respondent has not persuaded me to decide that the Claimant is lying about the effects. The Claimant went to his GP and was signed off from work, and was prescribed medication.[114]I am not satisfied that the onset was as early as June/July 2020. There is no mention of that in the notes. On the contrary, “sudden onset” is a phrase used.[115]The notes do not contain a detailed discussion of specific symptoms the Claimant had been suffering from, or for how long, in relation to the attendance on September 2020 with the GP. As of 17 June 2022 [Bundle 118], the GP records were referring to sciatica as a “minor past problem” (with dates 10 September 2020; 12 March 2021; 25 May 2021). It is unlikely that, in September 2020, or immediately before, the effects were as severe as those described by the Claimant in his September 2022 statement. Had they been, the Claimant would have described them to the GP, and the GP would have noted them.[116]The evidence does not persuade me that the September 2020 symptoms were caused by the same underlying cause as the March 2014 symptoms. The description of the symptoms is similar, but not identical. More importantly, the Claimant had been symptom free for more than 6 years. Furthermore, in his return to work meeting, the Claimant did not seem to believe that this was a recurrence of a condition that he had had previously.[117]The September 2020 pain was resolved by the end of the medication prescribed by the GP. So around mid- to late-October 2020. By his return to work interview after 24 September 2020, the Claimant was no longer symptomatic. At the time, neither the Claimant nor his GP had identified that it could well happen that the pain would return. Further investigation had not been deemed necessary by the GP.[118]On around 9 March 2021, the pain did return, and the Claimant was issued with another certificate on 12 March 2021.[119]Given that this was the second bout of pain within 6 months, that date (9 March 2021) is the date by which it became likely (in the sense that “it could well happen) that the Claimant was going to have pain which either lasted until, or recurred later than, September 2021.[120]Thus:120.1 Did the claimant have a physical impairment? Yes. He had pain which affected his back.120.2 Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? Yes. It was sufficiently severe that he had to abstain from work, even with pain medication.120.3 Was the adverse condition substantial? Yes. It was not trivial.120.4 Was the adverse condition long term? Yes, It did not meet this condition prior to 9 March 2021, but from 9 March 2021 onwards it did. Anxiety/ Depression[121]To some extent, the evidence about the matters referred to in the September 2014 GP letter might be consistent with a reaction to a life event, namely a dispute with the Claimant’s employer.[122]However, both Dr Cole’s June 2022 letter, and the Claimant’s GP records identify Mixed anxiety and Depression. Dr Cole refers to 2012, so she might be relying on the September 2014 letter. However, the summary of the notes refers to “anxiety and depression” as being “significant past problems” on 19 December 2013 and 2 April 2014.[123]As described more fully in the findings of fact, the Claimant was prescribed medication for the condition, and the dosage was later increased. There were also attempts to arrange non-pharmaceutical treatment. He also felt the need to attend A&E on at least one occasion, and there was correspondence between his GP and local NHS bodies about the Claimant’s mental health.[124]I am satisfied that when Dr Rahman wrote his September 2014 letter, he believed the contents to be true. He was expressing his genuine opinion based on, amongst other things, the information received from the Claimant and his own medical expertise. Other clinicians (as far as I can tell from the available evidence) shared his opinion (or, at least, did not disagree).[125]Although the Claimant has not persuaded me that being difficult to manage has been caused by a mental impairment (and that will remain an issue to be decided by another tribunal, if relevant) I am satisfied that his condition caused low mood, sleeplessness, and caused him to seek to avoid other people.[126]Thus:126.1 Did the claimant have a mental impairment? Yes. He had anxiety (as he refers to it) and mixed anxiety and depressive disorder as identified by his GP.126.2 Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? Yes. He struggled to sleep. He also sought to minimise social interactions126.3 Was the adverse condition substantial? Yes. It was not trivial.126.4 Was the adverse condition long term? Yes. Prior to the start of the Claimant’s employment with the Respondent, it met this condition. By September 2014, the Claimant’s GP was satisfied that he had been suffering the adverse effects since 2012. In any event, taking into account the medical evidence from December 2013 and April 2014, even if, by September 2014, the adverse effects had not already lasted for 12 months, then by September 2014 (at the very latest) it was already likely that the effects would last for, or recur, more than 12 months from their onset.[127]In my judgment, there did not come a time when the anxiety would have been a “past disability”. What the particular substantial adverse effects were at particular times is a matter that can be decided at later hearings, where relevant. However, I am satisfied that, where there were periods later than September 2014 in which the Claimant was not suffering from substantial adverse effects, it remained likely that such effects might recur in the future.
The law
[1]The claimant’s claim of discrimination on the grounds of age and disability is dismissed.[2]The claimant’s claim of unfair dismissal is dismissed.
Background
[1]The claimant was employed by the respondent from 31 May 2016 and dismissed, on notice, for misconduct on 2 June 2021. The claimant brings a claim of unfair dismissal and discrimination on the grounds of age and disability. The respondent’s case is that the claimant was dismissed fairly for a conduct matter, and it denies discrimination. Disability Status[2]In a judgment dated 31 July 2023, following a public preliminary hearing on 27 July 2023, EJ Quill found that, for the purposes of s6 of the Equality Act 2010 the claimant had the disability of back pain/sciatica from no later than 9 March 2021 and from a date prior to the commencement of his employment with the respondent, had a disability of anxiety.
The Hearing
[3]The parties filed a joint bundle of 289 pages. The claimant filed a witness statement. The respondent filed two witness statements, one from John Davis, the disciplinary hearing manager and one from John Leadley, the appeal hearing manager. At the end of the first day of the hearing the claimant requested a witness statement from Michael Power be admitted into evidence. The statement was produced for the disability status hearing referred to above. The respondent did not object to the inclusion of this document.[4]There was some discussion at the outset of the hearing about the list of issues. A list of issues was produced by EJ Frazer at a preliminary hearing on 4 August 2022. Neither party asked for this list to be amended. The list included a disability discrimination claim based on the disability of sciatica. The claimant said at this hearing that he also relied on the disability of anxiety. The tribunal noted that in the decision of EJ Quill dated 31 July 2023, the judge recorded that the claimant made clear at that hearing that he had not intended to abandon an argument that he had mental impairments which constituted disability, notwithstanding that he had not raised that at the first preliminary hearing. Whilst acknowledging, as raised by Mr BrochwiczLewinski, that the claimant had not set out his case about anxiety discrimination, the tribunal proceeded on the basis that both of the disabilities of sciatica and anxiety were relied upon by the claimant in his claim that he was discriminated against by way of dismissal.[5]Oral judgment was given at the end of the hearing. As explained to the parties, the case law and statute considered by the tribunal was not included in the oral judgment, but it would be included if written reasons were requested. The claimant requested written reasons and the relevant law has been included within these reasons.
The Issues
[6]The following list was agreed upon at the hearing on 4 August 2022. As noted above, the tribunal considered anxiety as a disability, in addition to sciatica, as part of the discrimination claim. 1. Unfair dismissal1.1 What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.1.2 If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether:1.2.1 there were reasonable grounds for that belief;1.2.2 at the time the belief was formed the Respondent had carried out a reasonable investigation;1.2.3 the Respondent otherwise acted in a procedurally fair manner;1.2.4 dismissal was within the range of reasonable responses. 2. Disability 2.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:2.1.1 Did he have a physical or mental impairment namely sciatica?2.1.2 Did it have a substantial adverse effect on her ability to carry out day-to-day activities?2.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?2.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?2.1.5 Were the effects of the impairment long-term? The Tribunal will decide:2.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?2.1.5.2 if not, were they likely to recur? 3. Direct age discrimination (Equality Act 2010 section 13)3.1 The Claimant’s age group is 45 to 50 and he compares herself with people in the age group of 20s/ under 30.3.2 Did the Respondent do the following things: 3.2.1 Dismiss the Claimant.3.3 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.3.4 If so, was it because of age?3.5 Was the treatment a proportionate means of achieving a legitimate aim?3.6 The Tribunal will decide in particular:3.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;3.6.2 could something less discriminatory have been done instead;3.6.3 how should the needs of the Claimant and the Respondent be balanced? 4. Direct disability discrimination (Equality Act 2010 section 13)4.1 Did the Respondent do the following things: 4.1.1 Dismiss the Claimant.4.2 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was.4.3 If so, was it because of disability? 5. Discrimination arising from disability (Equality Act 2010 section 15)5.1 Did the Respondent treat the Claimant unfavourably by: 5.1.1 Dismissing him.5.2 Did the following things arise in consequence of the Claimant’s disability:5.2.1 the Claimant’s sickness absence5.2.2 the Claimant’s slower productivity caused by his sciatica.5.3 Did the Respondent dismiss the Claimant because of those things?5.4 Was the treatment a proportionate means of achieving a legitimate aim?5.5 The Tribunal will decide in particular:5.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;5.5.2 could something less discriminatory have been done instead;5.5.3 how should the needs of the Claimant and the Respondent be balanced?5.6 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date? Submissions[7]Both parties made oral submission after the evidence was completed. A synopsis of those submissions is set out below.[8]For the respondent, Mr Brochwicz-Lewinski said that this was essentially a straightforward unfair dismissal claim in terms of fact and law with some elements of disability discrimination thrown in or overlaying it. All three elements of the Burchell test had been satisfied by the respondent. The fact that the claimant now claimed he had tried to present his car for a search and believed his search obligations to be over is a position that lacks credibility as is his claim that all of the meeting notes were fabricated. On the matter of disability, the respondent is still in the dark as to how that works. Plainly the dismissal was nothing to do with disability. The claimant has not suggested that it was to do with anxiety. That does not form any part of his case. The claimant still maintains that the reason was sciatica or something arising from it, but he did not put that to the witnesses. The respondent’s witnesses were not aware of the claimants claimed drop off in performance. This is a conspiracy theory advanced by the claimant on the basis of nothing, simply seeking to undermine the decision to dismiss. It is for the claimant to establish a prima facie case on discrimination. He does not come close to that. A claim of age discrimination has not been advanced in any shape or form.[9]The claimant said that this is a case of unlawful sacking and disability discrimination. He said the balance of proof is inside the company. He could not defend the claim as the only person who could have come to defend it would have been Wayne, but he was not here for the claimant to question. If the security guard had attended, he could have told the tribunal that he was not in the box when the claimant returned with his car keys. No footage was provided to the claim and documents were missing. He cannot subpoena documents or witnesses because this is not a criminal case. The claimant had not expected the respondent to dig into previous disciplinaries. After four years of good service, he received four back-to-back disciplinaries. That is very unusual. He had made mistakes before those disciplinaries in his employment, but had no disciplinary action taken against him. The claimant said he had asked for 16 witnesses from the respondent to attend and had written 170 questions to ask the witnesses that did attend but he could only ask four of those questions. The adjustment he had to his duties was made unofficially as Wayne knew about his disability. The respondent deliberately failed to call Wayne for this reason. The case is unjust. He did not have a chance to put his case across in the disciplinary process. The respondent had failed to bring a policy to the hearing to substantiate its claims about access to the premises when an employee is not working. The respondent was probably banking on him backing down, but the claimant came to the tribunal to tell his story. Relevant Findings of Fact[10]The claimant was employed by the respondent (a company that transports food items to supermarkets) as a warehouse operative from 31 May 2016. He worked a night shift which generally commenced at 21:30, ending around 05:30 the following day.[11]The claimant’s date of birth is 2 October 1970 and he was 50 years old at the time of the events complained about in these proceedings.[12]The respondent has a Search Policy. The purpose of the policy is: …to minimise the problems caused by the unauthorised removal of property belonging to Gist, its customers, employees or visitors. The policy also helps to encourage employees to do the right thing, acting as a deterrent to reduce the temptation to steal.[13]Under this policy searches can be random or where there are grounds for suspicion. As well as body searches and bag searches, searches of employee’s cars are carried out.[14]At some point during the period 2018 to 2020 the claimant was given permission by one of his line managers, Wayne, to be excused from setting up dollies (a type of transportation cart). Conflicting evidence was given about the reason for this adjustment. The claimant said that it was made because he raised with his manager that he needed duties that included less bending because of his medical problems. Mr Davis said that he was aware of the arrangement but understood it to have been implemented for management purposes, specifically because the claimant was difficult to manage. He said that the claimant’s job still involved heavy manual work. This adjustment was not referred to in a witness statement made by Michael Power for the purposes of the disability status hearing on 27 July 2023. Mr Davis did not refer to it in his witness statement. Mr Davis left the respondent’s employment in 2022 and his only part in these proceedings has been to make his statement and attend at the hearing. He was not aware of Michael Power’s statement. The tribunal finds that the claimant did have an adjustment to his duties in that he was excused from loading dollies, and that he requested this adjustment because at the time of the request he was suffering from back pain. The tribunal note that EJ Quill gave full consideration to this claim in his decision of 31 July 2023 and accepted that the claimant was not carrying out the full range of duties, though he could not determine whether this was authorised or a unilateral decision by the claimant. From Mr Davis’ evidence it is clear that the adjustment had been agreed with Wayne.[15]On or around August 2020, following a disciplinary process, the claimant received a conduct warning over ‘Incorrect Loading/Temperature failure’.[16]On 21 October 2020, following a disciplinary process, the claimant was given a first written warning for lateness. He did not appeal the warning.[17]On 3 November 2020, following a disciplinary process, the claimant was given a final written warning for ‘Failure to load out an ambient customer order’. The claimant did not appeal the warning. The letter setting out the warning included the following information: This warning will be placed in your personal file and will remain active for a period of 12 months from today’s date. Further issues of conduct may lead to Investigation / Disciplinary in line with the company’s policies and procedures.[18]On 3 March 2021 an investigation commenced into an allegation that the claimant had failed to follow training. The outcome was that the respondent decided to take no further disciplinary action but would provide further training to the claimant. The claimant said in oral evidence that the investigator, Kieran Nethercott, had not taken the matter further on the advice of John Davis. The claimant said that he had raised with Kieran Nethercott that John Davis had told him to begin this disciplinary procedure. Mr Nethercott then consulted John Davis on what to do. This matter was not put to Mr Davis in cross examination and was not an allegation raised in the claimant’s witness statement. There is no evidence to support the claimant’s claims and the tribunal finds that Mr Nethercott, after considering the claimant’s explanations for the ‘failure to follow training’ allegation decided that there was not a disciplinary case to answer, based on that evidence and nothing else.[19]On 6 March 2021 the respondent decided to search all employees and a random sample of employee’s vehicles. Mr Davis said in his witness statement that this was because: …there had been stock going missing and so all employees were to undergo a personal search and some vehicles were to be searched to try and find the person responsible.[20]Staff were searched at the end of the shift, at 05:30. The claimant was searched, and two packets of biscuits were confiscated, pending an investigation into whether they were the claimant’s property or the respondent’s property. It was later determined that the biscuits were the claimant’s property.[21]The claimant was advised by Terry McCafferty (TM) that his car would be searched. In addition to Mr McCafferty and the claimant, Asmat Mehmood (AM) and Kieran Nethercott (KN) were present. The claimant said that he did not have keys for the car and could obtain them from his girlfriend. He called his girlfriend in the presence of the other employees but got no answer. He left the respondent’s premises. The claimant returned the next day at approximately 02:00. He collected the car and drove it away without it being searched.[22]On 8 March 2021 Michael Powers, one of the claimant’s line managers, suspended him from work. The suspension was confirmed in a letter of the same date setting out the reason as …investigation into the allegation of: Failure to submit to a vehicle/search/Failure to comply with company search policy Gross Misconduct[23]Mr Powers interviewed AM on 8 March 2021. KN gave a written statement on 9 March 2021 and TM gave a written statement dated 2 April 2021. The claimant also provided a written statement around this time, for the purposes of the investigation, though it is undated. Sam Meunier, a Team Manager, was the investigation manager and he interviewed the claimant for the purposes of the investigation on 8 April 2021. The claimant was supported by a union representative, Daniel Rew-Dixon, at that meeting. The meeting was adjourned to allow Mr Meunier to investigate some of the matters raised by the claimant and reconvened on 14 April 2021. At the end of the meeting Mr Meunier advised the claimant that he had decided that the matter should go forward to a disciplinary meeting. A note taker attended both meetings, and notes of the meetings were typed and provided to the claimant. Although there is space on the proforma meeting notes form for all attendees to sign the notes, only Mr Meunier did so.[24]The claimant was invited to a disciplinary meeting on 21 April 2021 in an undated letter. The charge was: Misconduct- Failure to submit to a vehicle search also failure to comply with the company search policy[25]The letter included the following paragraph: You should be aware that a possible outcome of the disciplinary hearing could be a formal disciplinary warning as outlined in the company’s disciplinary procedure. Please note, the serious nature of the allegations against you are classed as misconduct and could result in a disciplinary sanction up to and including dismissal.[26]The claimant was on sick leave with sciatica and urticaria from 20 April to 20 May 2021. The disciplinary meeting was rescheduled to 25 May 2021 and then again to 2 June 2021. John Davis, Site operations Manager was appointed as the disciplinary hearing manager.[27]The meeting took place on 2 June 2021. The claimant attended with his union representative Daniel Rew-Dixon. A note taker attended, and notes of the meeting were provided to the claimant after the meeting. At the outset of the meeting the claimant raised that he was unhappy with the notes from the investigation meetings. He showed the amendments he wanted to make to Mr Davis. Those amendments are recorded in the disciplinary meeting notes and also shown in an annotated version of the investigation notes included in the bundle. There was then a discussion about whether all of the amendments the claimant wanted to raise had been raised and if he was happy to proceed. The conversation is noted as follows: JD: All corrections have been satisfied DR: When you mean all corrections, means are you happy all notes are correct? JD: Yes, are you happy to continue? DI: Yes JD: This is a rearrange meeting by your request from the investigation 6th DI: What I said that day on the investigation meeting, everything I said that day is not on the notes. JD: No, I am sorry we have already covered, and you said you were happy with it, DI: This is why I didn’t want you on the investigation JD: Well, you have me. [Union rep]: Dare has misunderstood JD initial question in regards to whether we was happy with all corrections and would like to add information. Dare would be reading out what he believes should’ve been on the investigation notes - document 21 JD Is document 21 all that you would like adding? DI Yes[28]Document 21 was the statement written by the claimant as part of the investigation process. It was the claimant’s position, put to Mr Davis in cross examination, that he had refused to allow the claimant to include all of the amendments or issues he wanted to raise about the investigation meetings notes at the hearing. Mr Davis denied this stating that the claimant had been given the opportunity to raise his concerns. The tribunal finds that the notes of the disciplinary meeting show clearly that the claimant was given an opportunity to set out in full any disagreement that he had with the investigation meetings notes and these were duly recorded and included in the evidence available at the disciplinary meeting.[29]At the end of the meeting, which had run into 2 June 2021, being conducted on the night shift, Mr Davis made the decision that the claimant had committed the act of misconduct he was accused of and that he should be dismissed on notice. He said that he had taken into account both the claimant’s five years of service, and the fact that he had a live final written warning. The dismissal was confirmed in a letter dated 2 June 2021 in which the claimant was told that he would be paid one month notice in lieu.[30]The claimant had a right of appeal against the decision. He wrote to John Leadley, the Warehouse Manager and the disciplinary appeal manager, on 8 June 2021. He stated that he wished to appeal because he had demonstrated that he had followed the policy to the best of his ability, the disciplinary meeting was poorly held, and the notes of the investigation meeting were incorrect.[31]The appeal hearing took place on 23 June 2021. The claimant attended with his union representative Daniel Rew-Dixon. Mr Rew-Dixon raised that he believed that investigation meeting’s notes had not been verified and that he had not been allowed to make changes to those notes at the disciplinary meeting. When Mr Leadley asked him to set out what it was in the notes that he believed to be wrong Mr Rew-Dixon said that he could not remember as it was so long ago but because the notes were not signed, they were worthless.[32]On 6 July 2021 Mr Leadley wrote to the claimant setting out that he upheld the dismissal and his reasons for doing so, addressing each of the points raised by the claimant in the appeal hearing.[33]The claimant said on many occasions throughout his oral evidence and in his cross examination of the respondent’s witnesses that the notes of the investigation, disciplinary and appeal meetings were incorrect, had been tampered with, recorded statements he had not made and were missing a number of statements he had made. He said that the fact that the notes did not make sense was proof that they had been fabricated. This was not a matter raised by the claimant at either of the preliminary hearings, in his ET1 or in his witness statement. His trade union representative did not raise with Mr Leadley that he believed that the disciplinary notes had been tampered with and there is no evidence before the tribunal that, for example, the union complained about such a matter to the respondent. Mr Davis denied that the notes had been tampered with. Both of the respondent’s witnesses denied that the claimant had raised with them that they should check CCTV for 7 March 2021 to see if the gatehouse was staffed when he came to collect his car.[34]The tribunal found that the notes of all the meetings conducted as part of the disciplinary process did make sense and found that there was no evidence that they had been tampered with or changed or that they failed to record important parts of the meetings. The tribunal finds that the notes, though not a verbatim record, are a true record of the investigation, disciplinary and appeal meetings.[35]In the disciplinary process meetings with the claimant the events of 6 and 7 March 2021 are discussed and references are made by the interviewers and the claimant to the statements taken from TM, AM and KN. The claimant takes issue with the statements and various conclusions that the respondent drew from those statements. The points of conflicting evidence are as follows:[36]The claimant said to Sam Meunier that he told TM he would need to go home to get the car keys and TM agreed to that. Statements were taken from TM, AM and KN in the subsequent disciplinary process and each statement refers to the claimant simply walking off. There is no reference to him discussing with TM that he would leave to get the keys and return. The claimant was given the opportunity to raise this matter. It was recorded in the notes and Mr Leadley took the approach in the appeal hearing of asking the claimant whether, if that was true, how this impacted what happened on 7 March 2021.[37]There is also a conflict of evidence around the explanations that the claimant said he gave for not having his keys, and the explanations recorded in the witness statements of TM, AM and KN. The claimant said to Sam Meunier that he lost his key twice during that shift. He said that he lost it once and it was handed back to him by a security guard. He then said that he lost it again. He said in oral evidence that he left it on a table and someone from management picked it up. This was not a claim he has raised before this hearing.[38]AM records the claimant as saying he did not have the keys, that the vehicle was his partner’s car and she had dropped him off in that vehicle, that she had come with a friend and returned in the friend’s vehicle. AM also stated that when he searched the claimant prior to the car search, there were keys in his pocket.[39]KN said that the claimant told him he did not have a car then in answer to a question from TM agreed a Corsa was the car he was using but it was not his, it was his girlfriend’s.[40]TM said in his statement that the claimant initially said he did not have a car on site and his girlfriend had dropped him off. TM told the claimant he knows which car he drives, and they went to that car. The claimant then said that his girlfriend had driven him in, and she went home in a friend’s car with the keys.[41]In a statement written shortly after 6 March 2021 the claimant stated that he drove the car to work, met his girlfriend outside as she wanted something out of the boot, and that by the time the car search was carried out at the end of the shift he had misplaced his keys.[42]These matters and the claimant’s objections to the statements were discussed at the disciplinary process meetings. The claimant had the opportunity to put forward any points he wished to make, and these are recorded in the notes.[43]For the purposes of the decision the tribunal needs to make on whether the claimant was unfairly dismissed and/or suffered age or disability discrimination, it is not necessary for it to make a finding on which version of any of these disputed accounts it prefers.[44]It is the claimant’s case that he returned to the respondent’s premises on 7 March 2021, around 12 hours after he left with his keys, in order to facilitate a search of his vehicle. He said in his witness statement and in oral evidence that when he arrived there was no-one staffing the security gate, he waited for 15 minutes and as there was no-one around he took his car and went home, this being a non-working day for him.[45]This was not a matter raised with Sam Meunier at the investigation meetings or with John Davis at the disciplinary meeting. When asked why he had not returned and submitted to a search he said to Sam Meunier it wasn’t his day in and no one had called him or left a note on his windscreen. To John Davis he said that he did not think the matter was serious and he didn’t know he was meant to present himself before collecting his car . The claimant said a number of different things to John Leadley. The first interaction was as follows: JL: Ok, you were sent home for the key that’s your version of events, you came back why didn’t you didn’t submit for a search, that would have solved everything. DI: l wasn’t on shift, I came back expecting security there. JL: We have 24/7 cover in security. Did you go to security? DI: Why would I go to security? LT (Human Resources): to do the search surely? JL: Why do I have to phone you again, to check that you have a key? You should report to us as you've read the policy you know it’s potential dismissal, why wouldn’t you do that? DI: How many hours you do work, why would I report to site I didn’t take anything? I thought the search was over. JL: You came back as you went to get a key, you didn’t go to security half way through that process to get the search completed. DI: At that stage it wouldn’t make a difference, I would have gone to security and should go and get searched why would I do that?[46]There then follows a detailed conversation between the claimant, his union representative and Mr Leadley about why the claimant might not have presented to security. The claimant then states that he went to security and there was no one there.[47]Again, the tribunal does not need to make a finding on whether the claimant attended at the gatehouse looking for security and there was no one available. It finds that the claimant had the opportunity to raise the matter and put his case to the respondent throughout the disciplinary process.[48]The claimant went on in oral evidence to say that he had been refused CCTV by the respondent which would have showed that security was absent at the gate when he arrived on 7 March 2021. He also said that he could not have entered the site to find someone to carry out the search because he did not have his pass with him, and it was against warehouse policy to enter the premises on a non-working day unless you are accompanied.[49]These matters were put to the respondent’s witnesses. Mr Davis said that the claimant had never raised with him that he had attended at the gatehouse to see security and it had been unstaffed or asked for CCTV to prove his case. Mr Leadley agreed that the claimant had said he attended and there was no one there but did not ask him to check CCTV.[50]Mr Leadley said in oral evidence that the claimant could have accessed the administration building without entering the warehouse. Mr Davis said he was not aware of any policy that would stop the claimant coming on site, there were no such restrictions. He said a member of staff could just enter unattended and without a pass they would need to be signed in or given a temporary pass.[51]The tribunal finds that the claimant did not ask Mr Davis or Mr Leadley to check the CCTV to see if he waited at the gatehouse for security on 7 March. It has already found that the notes are a true record of the disciplinary process meetings and accepts the evidence of Mr Davis and Mr Leadley that this matter was not raised with them. It found the respondent’s witnesses to be credible and the claimant presented no evidence to undermine that credibility.[52]The tribunal also finds that had the claimant wished to do so, he could have entered the respondent’s premises in the early hours of 7 March 2021 to ensure that the car search was completed. It does not accept the claimant’s claim that he was not allowed to enter for policy reasons. No such policy was presented. It could have been requested from the respondent and provided in the bundle. If it existed and it was denied to the claimant, he could have raised the matter with the tribunal before the hearing. The respondent’s witnesses, two senior managers at the time of the events, denied that such a policy existed. This defence was not raised at any point in the disciplinary process or these proceedings until the claimant was giving oral evidence which, in the tribunal’s view, further undermines the credibility of the claimant’s evidence on this matter. Credibility[53]The claimant raised a number of issues about the credibility of the respondent’s evidence. The tribunal found that the respondent’s witnesses were credible, they were not evasive in their answers, the evidence they gave accorded with their witness statements. Where evidence was given outside of those statements it was in response to questions from the tribunal or the claimant. The claimant provided no evidence to support his claim that the witnesses were, in effect, lying, having fabricated the documentary evidence of their meetings with him. The only reason he gave for this claim was the respondent wanted to get rid of him due to productivity issues and he based this on the number of disciplinary matters taken against him from 2020 to the end of his employment, though no productivity issues were documented. The tribunal found the claimant’s assertion that the respondent’s witnesses were lying to be unproven and lacking in credibility.[54]The claimant made various claims throughout the hearing, unsupported by documentary evidence, that the respondent had deliberately obstructed him in putting forward his case by refusing to provide documents, CCTV footage and witnesses that he wanted to cross examine. The tribunal noted that the claimant is not new to the tribunal process and by his own admission had been involved in legal proceedings many times. It also noted that he was an intelligent man, well able to make the points he wanted to make. It noted that at the first preliminary hearing on 4 August 2022 EJ Frazer explained to the claimant the process for applying for a witness order. No applications were made, nor were there any applications for specific disclosure.[55]Mr Davis confirmed in oral evidence that there was an adjustment in place to the claimant’s duties which was not referred to in a statement made by Michael Powers to the tribunal for the purposes of a disability status hearing. The tribunal accepts that Mr Davis was not privy to the preparation for the disability status hearing and no criticism is made of him. However, it is concerned that there is an apparent discrepancy in evidence provided for the purposes of that hearing and this final hearing. Having noted that, the tribunal is satisfied, for the reasons given below for its decision on the disability discrimination claim, that this had no impact on the outcome of this case. Furthermore it has not found that this issue was of sufficient concern that it undermines the respondent’s evidence in support of its defence to this claim.[56]In contrast the tribunal found that the claimant’s evidence was lacking in credibility. He raised issues in oral evidence and in submissions which had not been raised in pleadings or in his witness statements, and blamed any failure of his to provide evidence for an allegation he was making on the respondent having obstructed his attempts to obtain evidence. Law Discrimination[57]The discrimination claims are brought under sections 13 and 15 of the Equality Act 2010. Those sections are reproduced below.58. 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.59. 15 Discrimination arising from disability (1)A person (A) discriminates against a disabled person (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (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.[60]For all Equality Act 2010 claims the burden of proof provisions as set out in section 136 apply. Section 136 reads: 136 Burden of proof(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.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. Unfair dismissal[61]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111.[62]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[63]Misconduct is a potentially fair reason for dismissal under section 98(2).[64]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[65]In misconduct dismissals, there is well-established guidance for tribunals on fairness within section 98(4) in the decisions in Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827. The tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the tribunal would have handled the events or what decision it would have made, and the tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563). Decision and Reasons Discrimination[66]The claimant brings a claim of age and disability discrimination. His claim is that his dismissal was an act of direct age and disability discrimination, or that his dismissal resulted from his sickness absence or slower productivity caused by sciatica.[67]On 31 July 2023 EJ Quill determined that the claimant was disabled by way of anxiety throughout his employment and by sciatica from 9 March 2021.[68]In the case of Igen v Wong [2005] IRLR 258 the court of appeal gave the following guidance for considering discrimination claims. It is a staged process. The tribunal should make findings of primary fact to determine whether those show less favourable treatment and a difference in age or disability status. The test is: is the tribunal satisfied, on the balance of probabilities, that this respondent treated this claimant less favourably than it treated or would have treated a younger employee or a non-disabled employee.[69]If the tribunal is satisfied that the primary facts show less favourable treatment because of age or disability, the tribunal proceeds to the second stage. At this stage, the tribunal looks to the employer for a credible, non-discriminatory explanation or reason for such less favourable treatment as has been proved. In the absence of such an explanation, proved to the tribunal’s satisfaction on the balance of probabilities, the tribunal will conclude that the less favourable or unfavourable treatment occurred because of discrimination. Age Discrimination[70]There is no reference to age discrimination in the claimant’s witness statement. He did not put any questions to the respondent’s witnesses about age discrimination. Specifically, he did not put to either witness that in dismissing him (John Davis) or upholding the dismissal (John Leadley) that they had done so because of his age. Both witnesses denied discrimination in their witness statements.[71]In so far as the complaint of age discrimination is pursued by the claimant it is dismissed. There was no evidence at all before the tribunal which could lead it to infer that the claimant was treated less favourably in being dismissed for a breach of the search policy, than those younger than him. Disability Discrimination[72]The claimant states in his witness statement that he believes that the respondent conspired to sack him due to his disability/ill health. He goes on to state that that he had a clean four year record until he mentioned health issues and that is when he was targeted for dismissal. He does not state which disability he relies upon. In oral evidence he referred to sciatica being the reason that his performance was down at the end of 2020. He did not refer at all to anxiety throughout the hearing or in his pleadings other than to state at the outset that he relied upon it as a disability. He did not refer to it as being a matter connected to his dismissal. He did not put to either witness that his mental ill health was the reason why they decided to dismiss him or that the effects of anxiety on his performance were the reason.[73]In so far as any complaint of disability discrimination based on the disability of anxiety is pursued by the claimant it is dismissed. There was no evidence at all before the tribunal which could lead it to infer that the claimant was treated less favourably by being dismissed over a misconduct issue than those who were not disabled.[74]Any complaint of discrimination based on the disability of sciatica is also dismissed. EJ Quill has previously determined that the claimant was not disabled by sciatica prior to 9 March 2021 which was the date on which the condition became long term. This is a date after the incident took place which the respondent viewed as misconduct and because of which it says he was dismissed. It is also a date after which the investigation into that incident began, and a date after the other disciplinary actions against the claimant were commenced and concluded. Even if the respondent was aware that the claimant was disabled by sciatica as of 9 March 2021, and there was no evidence before the tribunal to show that it was, there was no evidence to show that this matter had any bearing on the conduct of the dismissal process or the eventual dismissal. The claimant did not refer to his sciatica as being a factor in the disciplinary process throughout the hearing or provide any evidence to show that he was treated differently during the disciplinary process than someone who was not disabled would have been treated. He did not put to the respondent’s witnesses that discrimination on the grounds of his disability of sciatica was the reason for their actions and the witnesses denied in their witness statements that they discriminated against the claimant.[75]The claimant has failed to put any information before the tribunal which could lead it to infer that any of the actions of the respondent were motivated by discrimination, such that the burden of proof would then shift to the employer to provide an explanation as to why its actions were not discriminatory. The discrimination claims are dismissed. Unfair dismissal[76]The question the tribunal needs to answer is whether the dismissal was fair or unfair. This is a two-stage process. The first stage is for the respondent to show a potentially fair reason for dismissal, and secondly if that is achieved, the question then arises whether dismissal is fair or unfair.[77]The respondent’s position is that the claimant was dismissed for conduct. Section 98 of the Employment Rights Act 1996 identifies a number of potentially fair reasons for dismissal which include at s98(2)(b) the conduct of the employee.[78]The claimant’s case was that his productivity had dropped, or performance had decreased, because he suffered from back problems, namely sciatica, and because of this the respondent wanted to dismiss him and found a way to do so by targeting him with disciplinary processes that eventually led to his dismissal on 2 June 2021. There were no documents before the tribunal which showed that the respondent had concerns about the claimant’s productivity such that it believed that it had to take action. Mr Lewinski said that the respondent has capability procedures which it can use in such circumstances. The tribunal notes that the respondent is also likely to have attendance procedures. The claimant was not subject to such procedures. Mr Davis said in oral evidence that he was not aware of concerns about the claimant’s productivity.[79]The tribunal was mindful of the case law guidance limiting its ability to go behind earlier warnings (i.e. those that did not result in dismissal) where it was satisfied that those warnings were not issued for an oblique motive or that they were manifestly inappropriate (Wincanton Group PLC v Stone [2013] IRR 178 Para 37), but it did take consider the evidence provided in respect of those early warnings, as it was the claimant’s case that they were connected, in that they were part of a plan to dismiss him. On the documentary evidence provided the tribunal was satisfied that those warnings were not issued for an oblique motive and were not manifestly inappropriate. On that evidence there was a clear reason for each warning issued after an appropriate investigation. The tribunal also took note of the fact that one of the investigations carried out did not lead to a warning.[80]On the second day of the hearing, at the claimant’s request, a further document was admitted into evidence. This was a witness statement made by Michael Powers for the purposes of a public preliminary hearing that was held on 27 July 2023 to determine disability status. The gist of the statement is that in Mr Powers’ view the claimant carried out a demanding manual job which included heavy lifting and he could not have done so with a bad back. He also notes that the claimant was ‘not always the hardest worker’ and makes no reference to there being any adjustments in place for the claimant as to the type of work he carried out. As noted above, the claimant claims and the tribunal accepts, that he asked for lighter duties at sometime between 2018 and 2020 and was excused from setting up dollies.[81]Taken at its highest, this evidence does not show that the disciplinary process instigated on 8 March 2021, or any of the disciplinary processes that preceded it were commenced with the purpose of dismissing the claimant over productivity concerns. There is no evidence that the respondent had concerns about the claimant’s productivity. The tribunal is satisfied on the evidence that the claimant was dismissed for misconduct.[82]The second stage as set out at s98(4) of the Employment Rights Act 1996 is to consider whether the dismissal was fair or unfair, having regard to the reason shown by the employer and whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation.[83]The tribunal is satisfied that the respondent had a genuine belief in the claimant’s misconduct. The claimant was subject to the respondent’s search policy. He was aware that the respondent wished to search his car on the night of 6 March 2021 and that he should return to the premises with the car key to allow that search to take place. On 7 March 2021 he left the respondent’s premises in the car without it having been searched. These facts are not in dispute other than that the claimant says that he did not think that the respondent viewed the matter as serious because it had not left a note on his car.[84]The tribunal must then consider whether the respondent’s genuine belief in the claimant’s misconduct was based on reasonable grounds and after carrying out a reasonable investigation.[85]There were three witnesses to the incident on 6 March 2021 and it is undisputed that the claimant left the premises in his car on 7 March 2021 without it being searched. Statements were taken from the three witnesses, the statements were disclosed to the claimant, the claimant was interviewed by an investigating officer who decided that the matter should be referred to a disciplinary meeting. A disciplinary meeting was held on 2 June 2021. The claimant was provided with all relevant documentation for the meeting and was given the opportunity to make his case. The claimant was dismissed on notice and had a right of appeal which he exercised. Again, he was able to raise any matter he wanted to raise at the appeal hearing. The appeal manager set out in a lengthy letter the reasons why he decided to uphold the claimant’s dismissal. At all stages of the disciplinary process the claimant was accompanied at meetings by his trade union representative.[86]The claimant’s main complaint about the process was that the notes of the investigation meetings were fabricated and unsigned. The tribunal has found that the claimant and his trade union representative were given every opportunity at the disciplinary hearing and the appeal hearing to set out their concerns about the investigation meetings notes and those concerns are properly recorded in the notes of those meetings. To put it another way, the claimant’s concerns about a defect in the investigation stage of the process were aired and considered by the decision makers.[87]The claimant also claimed that the meetings notes of the disciplinary and appeal hearing meetings were fabricated. The tribunal has found this claim to be without credibility and found that the notes were the true records of these meetings.[88]Connected to the claimant’s claim that the notes were fabricated is his claim that he asked for CCTV of his attendance at the respondent’s premises on 7 March to be provided and viewed. The tribunal has found that he did not make this request in the disciplinary or appeal meetings.[89]The tribunal finds, on the evidence provided, that the investigation and disciplinary process was reasonable. Relevant witnesses were interviewed, the claimant had the opportunity to make his case at a hearing and to appeal a decision he did not agree with. He was advised from the outset that the process may lead to dismissal. No evidence was put forward to show that the respondent acted outside of its disciplinary policy.[90]The tribunal must then consider whether the decision to dismiss was within the range of reasonable responses. It is immaterial how the tribunal would have handled events; the test is simply whether a reasonable employer could have reached the decision to dismiss on the particular facts.[91]The claimant admitted in oral evidence that on the facts before the decision manager, Mr Davis, he had failed to submit to a car search. This conduct alone could have led to dismissal under the respondent’s policies. The claimant was subject to a live final written warning and he had been advised that any further conduct matter could lead to disciplinary action in line with company policies. The tribunal finds that the decision to dismiss was within the range of reasonable responses to the claimant’s conduct.[92]The tribunal concludes that the dismissal of the claimant by the respondent on 2 June 2021 was fair, and the claimant’s claim of unfair dismissal is dismissed.