Mrs K BelleClaimantAl Shira’aa Farms LtdRespondent
Before
Employment Judge Milner-MooreIn person for claimantMs B Criddle (instructed by Counsel) for respondentDate 17 July 2017
JUDGMENT
[1]The correct respondent is Al Shir’aa Farms Ltd.[2]The complaints of breach of contract, unlawful deduction from wages and breach of the Working Time Regulations (regulation 14) are dismissed upon withdrawal.[3]The complaints of unfair dismissal and detrimental treatment contrary to s.47(b) of the Employment Rights Act 1996 are dismissed.[4]The complaint of disability discrimination proceeds.
REASONS
Background
[1]This matter was listed for a PH to consider whether the tribunal had jurisdiction to hear the complaints being brought by the claimant and to consider issues of case management. The respondent contends that the tribunal has no such jurisdiction because the claims have been presented out of time. 1 ph judgment + cm Nov 2014 wip version[2]In her ET 1 the claimant has brought the following complaints: Unfair dismissal 2.1.1 The claimant alleges that the reason or principal reason for her dismissal was that she had made a protected disclosure.2.1.1.1 In or around August 2016, the claimant alleges that she saw Thomas O’Brien mistreat a horse, kicking it several times, and on the following day, hitting it with a heavy leather head collar. The claimant says that shortly afterwards she informed Carol Anderson, who was the PA/Nanny of the Sheika, of the mistreatment she had witnessed.2.1.1.2 The claimant relies on this exchange with Carol Anderson as having been a protected disclosure for the purposes of the whistle blowing provisions of the Employment Rights Act 1996. Detrimental treatment on grounds of having made a protected disclosure. 2.2 The claimant alleges that, between the date of her protected disclosure and 6 January 2017, Thomas O’Brien subjected her to detrimental treatment and that he did so because she had made a protected disclosure. The detrimental treatment complained of was as follows:2.2.1 That he spoke harshly to her and gave her the cold shoulder whilst at work;2.2.2 That in or around September or October he singled her out to give her an unpleasant and difficult task (transporting some horses that were considered to be difficult to handle);2.2.3 That on 22 November he gave her an unwarranted verbal warning;2.2.4 That unlike other grooms employed at the respondent’s farm he did not, in the period between 28 December and 6 January, allow her to work half days over the Christmas period; and2.2.5 That he made her work alone during that period when others were working together. Disability discrimination 2.3 The claimant alleges that during the first week of January 2017, Thomas O’Brien, knowing that she had hearing loss in her right ear, asked “When are you getting a hearing aid?” and the claimant relies on this as an act of disability discrimination. Breach of contract/unlawful deduction from wages/failure to pay outstanding holiday pay. 2.4 During initial discussions aimed at clarifying the issues, these complaints were withdrawn by the claimant who accepted that there were no sums of money still owed to her. 2 ph judgment + cm Nov 2014 wip version Correct Respondent[3]The claim form was originally filed against Sheika Fatima Bint Hazza’Bin Zayed Al Nahyan at the address Al Shira’aa Farms Ltd. The claimant’s contract of employment was with Al Shira’aa Farms Ltd and the respondent contends that this is the correct respondent. The claimant had filed against the Sheika (who was a director of the Al Shira’aa Farms Ltd) because she regarded her as the ultimate authority responsible for the management of the farm. However, the claimant’s contract of employment clearly states that her employer is Al Shira’aa Farms Ltd and there was no evidence before me to suggest that the contract did not correctly and genuinely represent the position as to the identity of the claimant’s employer. The fact that the Sheika may have been involved in decision making was entirely consistent with her role as a director of Al Shira’aa Farms Ltd. It was not suggested that the claimant had acted in bad faith or had been attempting to mislead by naming the Sheika as the respondent and I considered that this was a simple misunderstanding on the claimant’s part. Nor was it suggested that any difficulty to the respondent would be occasioned by the amendment. I therefore considered it would be appropriate to amend the claim to record that Al Shira’aa Farms Ltd was the correct respondent. No objection to that amendment was raised by the respondent.[4]I had before me an agreed bundle of documents and a document headed “Claimant’s List of Issues”. By agreement that document was treated as the claimant’s witness statement setting out the evidence that the claimant wished to give in relation to the timing of the presentation of her complaints to the tribunal.[5]It was common ground between the parties that the complaints lodged by the claimant in her claim form dated 10 April 2017 had been filed outside the ordinary statutory time limits applicable to such complaints. Time for bringing the complaint of unfair dismissal expired on 6 April 2017, by operation of s.111 of the Employment Rights Act 1996 which requires that such claims are presented within three months beginning with the effective date of termination. In the case of her complaints of detrimental treatment and disability discrimination time in relation to such complaints expired on 5 April 2017 (within three months beginning with the date of the act complained of).[6]The extension of time provisions set out in section 207B of the Employment Rights Act, which are triggered by ACAS early conciliation, did not avail the claimant because, as will be explained, the claimant did not contact ACAS to engage in early conciliation within the relevant time periods. Accordingly, the issues arising for determination were as follows:6.1 In relation to complaints of unfair dismissal and detrimental treatment on grounds of having made a protected disclosure, whether the claimant could establish that it was not reasonably practicable for her to have complied with the ordinary time limit and that she had presented her complaint within such further period as was reasonable; 3 ph judgment + cm Nov 2014 wip version6.2 In relation to the complaint of disability discrimination, whether the claimant could establish that she had presented her complaint within such period as was just and equitable.[7]The facts7.1 The claimant began employment with the respondent on 1 June 2016 and was employed as a groom taking care of horses at the respondent’s farm. The claimant was managed by Thomas O’Brien.7.26 January 2017 was the last day on which the claimant attended work. On 7 January 2017, the claimant left a message to say that she would not be at work that day. Later that same day the claimant received a letter from Thomas O’Brien which summarily terminated her employment. The claimant alleges that she was dismissed by Thomas O’Brien for having made protected disclosures.7.3 On Monday 30 January, responding to Mr O’Brien’s letter, the claimant wrote in the following terms: “Employment law Acts and employee legislation in Britain also protect the workforce against discrimination from co-workers and your employers. Having spoken to legal representatives with regards to my case I am now in a position to commence legal proceedings which will include unfair dismissal, harassment and discrimination. Should we not reach a satisfactory agreement within seven days of the date of this email legal proceedings will commence.”7.4 The claimant was cross-examined about what legal advice she had sought about her case and what steps she had taken to inform herself as to the options that were available to her to bring legal proceedings and the steps that she needed to take. I find that, shortly after the claimant was dismissed, she began to research the possibility of bringing an employment tribunal complaint and that as part of that process she spoke to ACAS, having first done some research on the internet. (when the claimant wrote of having spoken to legal representatives, it was ACAS that she was referring to). When she spoke to ACAS she explained to them the “gist” of the matters that she was unhappy about and they explained to her that she could bring a complaint to an employment tribunal about such matters and that they told her that there was a three-month time limit for bringing such complaints. The claimant also very fairly accepted that ACAS explained to her when the relevant time limit ran from. The claimant confirmed that ACAS were encouraging her to try to resolve matters with her employer. The claimant’s evidence was that ACAS did not explain to her that she needed to engage in a process of early conciliation before bringing an employment tribunal complaint and that it was not until she spoke to the employment tribunal in the period shortly before she filed her claim form that she was aware that there was a requirement of early conciliation. I find it implausible that ACAS would not have made mention of the requirement to engage in early conciliation during the discussions that the claimant had with them. The Respondent put in evidence the guidance which is published on the ACAS website which makes clear that there is a requirement to engage in early conciliation and the fact that 4 ph judgment + cm Nov 2014 wip version there is a statutory time limit for doing so. That guidance would have been available to the claimant.7.5 On 3 February 2017 Mr O’Brien wrote to the claimant indicating that her complaints were not accepted and that the respondent was not prepared to engage in any attempt to reach an agreement with her.7.6 It was not until 23 March that the claimant wrote to the respondent again. She wrote a letter to the Sheika (care of her ladies in waiting) and copied that letter to Thomas O’Brien. The claimant wrote directly to the Sheika because she believed that she was not being kept informed by Thomas O’Brien of what had gone on and she believed that once the Sheika saw her letter the Respondent might take a different approach. It is relevant to note that the letter was described as “Tribunal.dox” when attached to the covering email, so the claimant still had in mind the possibility of legal proceedings. The claimant subsequently attached this letter to her ET1 form as her grounds of complaint.7.7 The claimant’s letter stated that she had been unable to respond previously because of “personal illness”. When giving evidence the claimant explained that she had suffered from anxiety and this was what she referred to as personal illness. The claimant asked for payment of certain monies that she considered to be outstanding and required a response within seven working days. When giving evidence about what she hoped to achieve with this letter, the claimant accepted that she knew that if she did not receive a satisfactory response the next step was to go to the employment tribunal. She also accepted that she knew that there was no guarantee that her personal appeal to the Sheika would result in matters being resolved to her satisfaction.7.8 In late March, the claimant was offered administrative work with a friend and she started work on 1 April 2017.7.9 The respondent replied to the claimant’s letter of 23 March to the effect that matters were being looked in to and that a full response would be delayed whilst they approached Carol Anderson. The respondent’s replies made clear that the claimant was unlikely to receive a response until the end of the week commencing 3 April 2017. A full response was not eventually received until Friday 7 April 2017 when the claimant received a letter from the Sheika confirming that her complaints were not accepted and that the respondent would not enter into any agreement to resolve matters with her.7.10 Having received this response from the respondent on 7 April 2017, the claimant made contact with ACAS on 7 April 2017 to engage in early conciliation. The early conciliation certificate was issued on 10 April and the Claimant then filed her ET1, which was marked as received by the tribunal on 10 April 2017.[8]Relevant legal principles 5 ph judgment + cm Nov 2014 wip version8.1 The case of Palmer v Southend on Sea Borough Council 1W.L.R.1129 summarises the matters that a tribunal should consider in determining whether it was reasonably practicable for a litigant to comply with a statutory time limit. In short, it is for the tribunal to investigate the substantial cause of the failure to comply with the time limit and to consider matters such as whether the individual was aware of the right to bring the statutory complaint in question, whether there has been misrepresentation on the employer’s part as to any relevant matter, whether the individual has been advised and ,if so, how and whether there has been substantial fault on the part of the individual who has failed to comply with the time limit.8.2 The court also gave guidance as to the meaning of the phrase “reasonably practicable” and suggested that it should be understood as meaning “was it reasonably feasible” for an individual to present a complaint within the statutory time limit. The respondent also directed me to the case of Sodexo Health Services Ltd v Harmer UK EATS 0079/08/B1 in support of the proposition that ignorance would not be an excuse unless such ignorance was reasonable in all the circumstances.8.3 I have considered the authority of British Coal Corporation v Keble which sets out some of the key factors that a tribunal should have regard to in considering whether or not time should be extended on the grounds that it would be just and equitable to do so. Such factors will include the length of and reasons for delay, the extent to which the cogency of evidence is likely to be affected by delay; the extent to which a respondent has cooperated with a request for information, the promptness with which the claimant acted once aware that he or she had a complaint and the steps taken by the claimant to obtain appropriate advice once aware of the possibility of taking action.[9]Conclusions9.1 In her closing submissions, Ms Criddle argued that the date of presentation of the claimant’s ET1 complaint should be regarded not as 10 April 2017 but as the date of the preliminary hearing. She relied on the fact that it was not until the hearing took place that the correct respondent (Al Shiraa Farms Limited) was substituted by amendment. Having considered the authority of Cocking v Sandhurst Stationers Ltd 1974 I.C.R 650, I consider that, when determining the question of the Tribunal’s jurisdiction to hear this complaint, the relevant date for consideration is the date on which the ET1 was originally filed and not the date of any subsequent amendment of that claim form to correct the identity of the Respondent.9.2 I have concluded that it was reasonably practicable for the claimant to have complied with the relevant statutory time limits relating to her complaints of unfair dismissal and detrimental treatment on grounds of protected disclosure. Accordingly, the Tribunal has no jurisdiction to hear those complaints. I have reached this conclusion for the reasons set out below: 6 ph judgment + cm Nov 2014 wip version9.2.1 By 30 January 2017, the claimant had undertaken some research and was aware of the right to bring employment tribunal proceedings in relation to these matters. She had also spoken to ACAS, had been made aware of the three-month time limit for doing so. I have found that ACAS would have made her aware of the requirement to engage in early conciliation as part of the discussions that she had with them, but, in any event, this requirement is clear from the published guidance on the ACAS website. If the claimant did somehow remain ignorant of the requirement to engage in early conciliation, that ignorance was not reasonable in the circumstances.9.2.2 She was therefore aware that she could bring a claim, she knew, or ought to have known, what steps she needed to take in order to do so, what the time limit was and when it ran from.9.2.3 This is not a case where the respondent misled the claimant as to the position and thereby caused any delay. The respondent had made clear that it would not be providing a response to the claimant’s letter until it had had an opportunity to speak to Carol Anderson and it made clear a response was unlikely to be produced until the end of the week commencing 3 April 2017. The claimant was, or ought to have been, aware that the time limit would expire during that week. She also knew that there was, in any event, no guarantee that any response she received would resolve things to her satisfaction.9.2.4 It is relevant to note that the claimant put forward no medical evidence to show how her anxiety at this time impacted on her ability to comply with the statutory time limits. I note that during the relevant period she was able to correspond with the respondent in fairly robust terms and that, once it was clear that no agreement was going to be reached, she took action promptly to file her complaint. I therefore conclude that, although the claimant may well have suffered from anxiety as a result of these matters, it was not affecting her to such a degree that it made it not reasonably practicable for her to have complied with the statutory time limit.9.2.5 The claimant failed to comply with the time limit because she was hopeful that a personal appeal to the Sheika would resolve matters in her favour and she preferred to wait and see what the Sheika’s response would be. However, it would have been reasonably feasible for her to bring her complaint before the statutory time limit expired.9.3 Turning to the question of whether it would be just and equitable in all the circumstances to extend time to allow the disability discrimination complaint to proceed, I have borne in mind that it is for the claimant to establish that it would be just and equitable to extend time and that the exercise of discretion is to be regarded as the exception rather than the rule. I have had regard to the relevant factors as set out in British Coal Corporation v Keble. I have concluded that it would be just and equitable to extend time to allow the disability discrimination complaint to proceed. I have reached that conclusion for the following reasons:9.3.1 The reason for the delay was that the claimant wished to resolve matters directly with her employer and was awaiting a response from her employer. 7 ph judgment + cm Nov 2014 wip version9.3.2 Once it became clear that an agreement with her employer was not likely to be reached, the claimant acted promptly to contact ACAS to begin the early conciliation process, subsequently filing her employment tribunal complaint on the date that the early conciliation certificate was issued. The period of delay in question is very short. Had the Claimant contacted ACAS to engage in conciliation a day earlier section 207(B) of the Employment Rights Act 1996 would have been triggered and time extended.9.3.3 No evidence was put forward by the respondent to suggest that the delay would cause any prejudice to it in relation to the evidence that it would be able to adduce at any hearing.[1]The respondent is a farming business, the controller of which is Sheikha Fatima Bint Hazza’ Bin Zayed Al Nahyan. It is principally concerned with equestrian sports and cares for and trains sporting horse from foals to fully grown stallions.[2]The claimant was employed as a groom in June 2016, she had previously worked for the respondent as a cleaner providing her services via a business run by her sister. Having some previous experience of working with horses when a teenager learning to ride the claimant wanted to move to being a groom. The respondent’s manager (Mr O’Brien) knew this, had a vacancy and took her on.[3]The claimant was inexperienced where stallions and competition or sporting horse were concerned. Nevertheless she was a willing and generally able worker, although Mr O’Brien had some concerns about her common sense and judgement as a result of some minor incidents. We illustrate by reference only to one. She had appeared to think it appropriate to give a reference on behalf of the business concerning a casual worker of her acquaintance, but Mr O’Brien found out about this and gave the reference himself.[4]The claimant’s employment was terminated on 7 January 2017 on the instructions of the Sheikha when the claimant raised criticisms (by letter or text message) of Mr O’Brien’s conduct towards staff and animals. The claimant considered him a bully towards both and told us of episodes of extreme violence towards animals (both horses and dogs) and of a regime of verbal aggression and threats towards all members of staff including herself.[5]The evidence before us regarding Mr O’Brien’s conduct was necessarily limited having regard to the very limited scope of the case. The claim form in this case made allegations of breach of contract, unlawful deductions from wages and breaches of the working time Regulations. All those claims were withdrawn at a preliminary hearing before Employment Judge Milner-Moore on 27 June 2017. The claimant also made claims of unfair dismissal and detrimental treatment contrary to s.47(b) of the Employment Rights Act 1996 and of disability discrimination.[6]The claims which were live before Employment Judge Milner-Moore were all presented outside the primary limitation period. Applications to extend time in respect of all except the disability discrimination claims were refused. That claim (for harassment and direct discrimination) was noted to be one based upon allegations falling within a very narrow compass of fact.[7]Given the disputes of fact between the parties and the evidence we have heard it is necessary for us to set out a little background to the orders made by the Employment Judge.[8]The unfair dismissal and the public interest detriment claims focussed on alleged incidents of animal cruelty taking place in the summer of 2016, and said to have been reported (indirectly) to the Sheikha. It was said that as a consequence Mr O’Brien’s attitude towards the claimant changed, that he bullied her and eventually dismissed her on 7 January 2017. The Judge was told that at some time between 1 and 6 January 2017 (that is just prior to the claimant’s dismissal) the incident relied upon as an act of disability discrimination took place.[9]The claimant suffers from right sided hearing loss consequent upon problems (leading to an operation) in her childhood. At the time in question (in late 2016 and early 2017) she was in the process of being assessed to see if a hearing aid would help. She had not got one at the time. The respondents accept that at the material time she was disabled within the meaning of that term in s.6 of the Equality Act 2010.[10]The Judge recorded the timing of the incident, the subject of the disability discrimination claims in her notes of what was said to her by the claimant, in her judgment and in the case management summary. The claimant alleged at this time that Mr O’Brien had said to her “When are you getting your fucking hearing aid?”[11]We heard evidence from both the claimant and Mr O’Brien. It was clear from what the claimant told us and from her manner of giving evidence that she suffered from and still suffers from severe anxiety: she described herself as “broken” by the end of her employment. She was unable to come to work after making her complaints in January, but was (of course) dismissed very shortly thereafterwards. The incident[12]There is a very considerable measure of agreement between the parties about the incident itself. Mr O’Brien accepts that he asked her about getting a hearing aid, knowing (from her sister) that a hospital appointment which she had asked for an extended lunch in order to attend was to consider her having one. The hospital appointment was in early December 2016. The claimant’s sister had told Mr O’Brien of the claimant’s hearing problems (of which he was previously unaware) when she saw the claimant leaving the premises and on asking where the claimant was going was told that she was attending a hospital appointment. She also told Mr O’Brien that the claimant was a little embarrassed about talking about the problem.[13]Mr O’Brien says that in late December 2016 or early January 2017 he and the claimant were working on the farm moving foals between fields and that he called out to her on a couple of occasions when her back was to him and she did not appear to hear. He was not unduly concerned because it was a wet and windy day, but he thought that she should have heard him. Hence, as they went back from the field he asked about the hearing aid.[14]Mr O’Brien denies that he swore. The claimant accepts that using the “f” word is common in casual speech at the farm and we saw an example of her using it in an amicable exchange of texts with Mr O’Brien in October 2016. She says that its use did not concern her, either generally or in this context. Hence it is arguably not material for us to decide who is correct. However, on balance we prefer the claimant’s evidence on this point. We think it more likely than not that Mr O’Brien did say “fucking hearing aid”. He did not intend to be offensive, any more than the claimant did when referring to a “fucking fence” in the text referred to. Equally no offence was taken by the claimant.[15]The key issue of dispute between the parties is whether Mr O’Brien asked the question in an aggressive manner and is part of a campaign of bullying against the claimant. Of course, it is the claimant’s evidence that he did not single her out, but was equally appalling in his behaviour towards all other employees (some nine employees) all of whom were junior to himself. The claimant told us that for her this episode was the straw that broke the camel’s back and was what finally “broke” her.[16]In order to resolve what is clear conflict of oral evidence, we have looked at a number of matters which we consider below.[17]We first consider the background allegations of mistreating animals and of whistle blowing in respect of that alleged mistreatment. We heard very limited evidence in this regard. Had the unfair dismissal and public interest disclosure issues been before us, it is clear that a great deal more evidence would have been required. In the absence of such additional evidence it is impossible for us to reach conclusions as to who is telling the truth. The respondent contends that all that the claimant actually witnessed was the kind of firm and robust handling of large excitable animals which is necessary in this environment, and inexperienced as she was she misunderstood it. The claimant, on the other hand, says that Mr O’Brien’s actions went much, much further than that.[18]The claimant certainly complained about him in writing in January 2017 and, having done so, she was almost instantly dismissed. It is clear that prior to the complaint being made the claimant was regarded as someone who was going to continue in her employment because she had just been offered a new contract of employment. We also note that no procedure was followed in respect of her dismissal, although she was of course someone with less than two years continuous service.[19]These background matters do not assist us in deciding what happened during the key conversation. That the complaint of bullying and so on lead to dismissal does not necessarily mean that the allegations were accepted as true, either in whole or in part. It might just as well have been the case that the Sheikha was reacting to their repetition she had, of course, been told of them in mid 2016. We do consider however that the claimant (for good reason or not) did consider that Mr O’Brien had behaved badly in relation to staff and animals: she found her working environment both challenging and hostile.[20]Next we consider the claimant’s evidence on the timing of the incident. As we have already noted, the claimant told the Judge in June 2017 that the incident happened in the period 1 – 6 January 2017, immediately before the end of her employment. She told us that it was the last straw which broke her. Yet, her witness statement placed the incident in October 2016. We accept that she had spent some time and care preparing that statement and carefully considering its contents. Indeed, she told us that when she wrote it she believed the incident to have taken place in October 2016. She corrected that immediately upon going into the witness box and suggested that the incident took place “during December 2016”. In cross examination she was taken to what she had told the previous Employment Judge and said that the real position was that she knew that it was after she had returned to work on 28 December 2016 after the Christmas break.[21]That confusion concerned us, especially given that this was, according to the claimant, such an important event in the sequence and that her statement goes on to deal with events in November and December 2016 and January 2017 in sequence. We were also concerned in the context of this confusion by two other matters. Firstly, the fact that this incident was not raised with the respondent at all until 23 March 2017. Secondly, the way the claimant gave evidence on this issue of changes in date.[22]In cross examination the claimant initially maintained that she did not discuss even a year with the Judge. Her account of why she had confused the date of the incident was itself a little confused and contradictory. We do not consider that the claimant was seeking to deceive us. However, we do conclude that her current recollection of the events towards the end of her employment is far from clear and most probably clouded by that measure of hindsight that many deploy when going back over traumatic events (especially in the course of litigation) coupled, in her case, by her highly anxious state and by the need to concentrate upon this one incident as being the only aspect of her allegations with which the employment tribunal was to be directly concerned and to rule upon.[23]In all the circumstances we conclude that Mr O’Brien’s version of events is to be preferred in this regard. We consider that he asked a perfectly reasonable question in a calm and considerate way. The claimant was probably a little surprised that he knew of her hearing problems. As her sister had told Mr O’Brien, “she was a little embarrassed about this and did not generally talk about it”. She was not otherwise concerned about this conversation. However, her more general concerns about Mr O’Brien and the ending of her employment have lead her, with hindsight, to attribute to this conversation a significance which it did not have at the time and to see what was an entirely innocent question on Mr O’Brien’s part as having a place in what she sees as a catalogue of unacceptable behaviour. Applying the law to the facts[24]Against that background of fact, we turn to consider the various aspects of the disability discrimination claims relied upon.[25]We turn first to the claim of harassment on the grounds of disability and deal with the various parts of the tests set out in s.26 of the Equality Act 2010.25.1 Turning first to unwanted conduct. We think that this was unwanted in the sense that the claimant did not find discussion of her condition other than a little embarrassing, but she was content to discuss the matter it having been raised.25.2 The conduct (the asking of the question) clearly related to her disability.25.3 We do not consider that the conduct did have any of the forbidden purposes. The purpose was to learn whether the claimant was going to get a hearing aid.25.4 We do not consider that the conduct had any of the forbidden effects. We do not consider that the very mild embarrassment experienced by the claimant equates to a violation of the claimant’s dignity, nor did it create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In that regard we bear in mind the claimant’s own evidence that she was unconcerned about people knowing of, or discussing, her hearing problems. We do not think that that is quite right, but it supports our view that this was, to her, a matter of little consequence. We also bear in mind that we should consider, in relation to whether the conduct had any of the forbidden effects, whether it was reasonable for it to have such an effect. We do not consider that it would be reasonable for an understandable enquiry made in those circumstances to have one of those forbidden effects.[26]Secondly, we turn to the claim for direct discrimination. Undoubtedly the claimant was subjected to the treatment in question, but was it less favourable treatment than that which would have been given to hypothetical comparator? We do not consider that it was. We consider that a non-disabled person who, for example, had a knee sprain and whose doctor was considering whether or not they should be given a knee brace would have been treated the same if seen to be limping or in pain after work in the field.[27]In those circumstances, and for those reasons both of the claims of disability discrimination must fail and are dismissed.