Mr G Bickerstaff v Caledonian Macbrayne Crewing (Guernsey) Ltd and Others: 4102596/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102596/2025Venue GlasgowHearing 16, 17, 18 and 19 March 2026
Between
Mr Gary BickerstaffClaimantCaledonian Macbrayne Crewing (Guernsey) Ltd and OthersRespondent
Before
Employment Judge L DohertyMrs S Bickerstaff for claimantPartner for claimantMs S Mackie (instructed by Solicitor) for respondentDate 2 April 2026
JUDGMENT
The unanimous judgment of the Employment Tribunal is that the claim is dismissed.
REASONS
[1]This was a merits hearing over 4 days to consider the claimant’s complaint of disability discrimination under Section 15 of the Equality Act 2010 (the EQA). The claimant was represented by his wife, Mrs Bickerstaff; the three respondents were represented by Ms Mackie, solicitor.[2]Disability status is conceded on the basis of the claimant’s(i) fibromyalgia and(ii) coronary heart disease[3]A Preliminary Hearing (PH) for case management purposes took place in October 2025, at which point the claimant was legally represented, and it had been the anticipation of the parties that they could agree a list of issues. This transpired not to be the case.[4]At the outset of the hearing Mrs Bickersatff confirmed that the unfavourable treatment relied upon for the Section 15 claim was: “Loss of opportunity by being prevented from applying for ill health retirement whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ that did not appear in the Rules of the ( (respondent’s) pension scheme.”[5]In submissions, Mrs Bickerstaff identified the ‘something arising from disability’ under section 15 as:• Long term sickness absence;• Inability to return to work;• Inability to obtain an ENG1 (necessary to carry out work on board a ship); and• Ongoing symptoms and the need for medical intervention or treatment. What is an issue for the Tribunal is whether the respondents prevented the claimant from applying for Early Ill Health Retirement (IHR) whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ that did not appear in the rules of the pension scheme. If so was that done because of something arsing in consequence of the claimamt’s disability, which was his long term sickness absence; inability to return to work; inability to obtain an ENG1 (necessary to carry out work on board a ship); and/or ongoing symptoms and the need for medical intervention or treatment.[6]The claimant made clear at the outset of the hearing that that there is no standalone claim under section 15 of the EQA in respect of his dismissal.
The Hearing
[7]The claimant gave evidence on his own behalf. The following adjustments were put in place at the claimant’s request:• The claimant could remain seated throughout the proceedings.• Where possible, the pace of questioning would be slower; questions to be repeated where necessary.• Breaks to be accommodated where the claimant’s symptoms worsen. Mrs Bickerstaff indicated that it was unnecessary to have planned breaks. The claimant was advised that if he needed a break, then he should let the Tribunal know, and breaks were taken regularly. Mrs Bickerstaff advised that the claimant was felling unwell on day 2 and 3 of the hearing and he was not required to attend.• The claimant took written notes into the witness table to assist him with his evidence.[8]For the respondents, evidence was given by:• Patricia Harwood (PH) – HR business partner, who supported the welfare process;• Abigail McLeod (AM) – Marine Superintendent - Chair of the welfare process;• Richard Colley (RC) - Head of Major Vessels, who dealt with the appeal.[9]A joint bundle of documents was lodged.[10]The parties also produced a lengthy agreed statement of facts. Findings in Fact[11]For the purposes of these findings all three respondents are referred to as a single ‘respondent’, no distinction being made between the three at any point in the hearing or in their agreed statement of facts by either party.[12]The respondent is responsible for running ferry services in Scotland. It has HR support and has a number of policies and procedures in place for the management of staff.[13]The respondent operates an absence policy which includes a long-term absence procedure which provides for Long-Term Absence Review Meetings and Capability Review Meetings. Respondent’s pension scheme[14]The respondent operates a defined pension scheme with AON as the provider. This is a generous pension scheme for employees, which has an employer contribution of 30%. The criteria for eligibility to the pension fund and to an IHR pension are strictly applied. The respondents workforce had an aging profile , and it has to regularly deal with employee absence due to ill health. It also has to deal with requests by employees for IHR on a reasonably regular basis. All applications for IHR are dealt with in the same way by the respondents. An employee cannot apply directly to the Trustees for IHR in terms of the scheme while he is an active member of the scheme.[15]The respondent’s pension trust deed and rules provide for the possibility of IHR. IHR is a benefit available to employees who as a result of their ill health are unable to follow their own or any other occupation. Referral for by the respondents to the Pension Trustees ( the Trustees) for consideration of the benefit of IHR is contingent on the respondents agreeing to the employee taking IHR and being satisfied, on the basis of written medical evidence , that the employee’s ill health is such that they cannot work again in any industry.[16]The rules of the scheme are as such that for an applicant to successfully apply for IHR as an active member of the scheme ( i.e. while still employed) the employer must agree to it, and the Trustees must receive satisfactory medical evidence of ill health before the pension can be awarded.[17]The Trust Deed rules state that “incapacity” means a member’s ill-health which is bad enough in the employer’s opinion (acting on the basis of written medical evidence) to prevent him from following his own or any other occupation. In order to fall within this definition, the member must have actually ceased to carry on his normal employment.[18]The Trust Deed rules define “Written Medical Evidence” as “medical evidence received by the Trustees regarding the state of health of the Member from a practitioner who is a fully registered person within the meaning of the Medical Act 1983”.[19]AON provided the respondents HR team, including PH, with training and training materials on the IHR process in July 2020. These materials contained a step by step outline of the process. The first step was: arrange medical evidence confirming that member not able to work through ill health in current job or any other.[20]The second step was: “notify AON that member is applying for ill health retirement, confirm expected date of retirement and provide medical evidence.”[21]Both of these steps were said to be the responsibility of the respondent.[22]On 3 June 2021 AON emailed the respondents about the pension process. They confirmed that there was no specific policy document, as it was a standard procedure within their administration. The e-mail set out what was described as high level details on the process which needed to be followed.[23]Those were:• the employer must agree a member can take IHR.• for an IHR pension, the rules define incapacity as a member's ill health which is bad enough in the employer's opinion acting on the basis of written medical evidence to prevent him from following his own or any other occupation.• written medical evidence is defined as medical evidence received by the trustees regarding the state of health of the member from a practitioner who is fully registered within the meaning of the Medical Act 1983.[24]The e-mail set out the steps in the process as follows:• written medical evidence to be obtained-Please ensure this is complete and provides a response to the specific question that should be asked ‘Does the illness prevent the member from following his own or any other occupation?’• the employer to review the written medical evidence and confirm they agree a member taking early retirement pension on incapacity grounds• the trustees also need to be satisfied with the written medical evidence.[25]Before an application for IHR is referred to the Trustees, the respondents must agree to it and must be satisfied that there is medical evidence to support the application. In the application of terms of the pension scheme, with AON the respondents consider this to be medical evidence confirming that the employee will never work again in his own or any other occupation/industry. The provision of medical evidence stating the employee will ‘never work again’ is how the respondents HR explain the requirements of the scheme to members. It is what they understand is required from medical evidence necessary to establish in their opinion that the employee is unable to follow his own or any other occupation. If this evidence is received by the HR, it is referred on to the HR Director, who sits on the respondents’ Board of Directors. If the HR Director is satisfied that the criteria is met, it is referred into the respondents’ Board of Directors to consider if a referral to the pension trustees can be made. If the Board are satisfied on the basis of the medical evidence that the criteria is met, a referral is made to the Pension Trustees.[26]This is the procedure which the respondents adopt to all applications for IHR.[27]Employees are issued with a document called ‘A guide to your benefits from the Calmac Pension Fund’ on the commencement of their employment. This provides as follows under the heading ‘Ill Health Retirement’. “An ill health early retirement pension can be taken at any time. Your employer must grant its approval and the trustees must receive satisfactory medical evidence of your ill health before the patient can be awarded… From time to time, you will be required to provide supporting medical evidence of continued ill health. If this evidence is not provided or you are deemed to have recovered, your ill health pension may cease to be paid…”[28]Once a member becomes deferred, they are no longer eligible to apply for ill health retirement as an active member of the scheme. There is a financial advantage in applying as an active as opposed to as a deferred member of the scheme. The claimant[29]The claimant has been employed since 28 October 2009. He was employed as a Third Relief Officer, which is a seagoing role.[30]In order to carry out his role the claimant requires to have an ENG1 certificate, normally valid for two years which certifies his medical fitness to work onboard a ship. An ENG1 is issued by an MCA-approved doctor. An unrestricted ENG1 confirms that no concerns have been identified. A restricted ENG may include limitations on work which can be performed. Restricted certificates are often issued for a short duration before requiring revalidation. An ENG3 is a formal MCA certificate of temporary unfitness. The Claimant was issued with an ENG3 on 17 June 2024, which confirmed he was temporarily unfit for sea service pending further medical assessment. Claimant’s absence - application for IHR/dismissal[31]On 20 September 2023 the claimant began a long term sickness absence due to chest pain and shortness of breath.[32]On 13 October 2023 the claimant undertook a medical assessment with Occupational Health (OH) to discuss his long-term sickness absence. The OH report confirmed that he was not fit to attend work at present. The claimant continued to be unfit for work and between 20 September 2023 - 11 January 2024.[33]On 13 November 2023 a welfare support meeting took place with the claimant to discuss his current health. All welfare support meetings and capability review meetings were chaired by an AM. Most meetings were also attended by PH.[34]On 12 January 2024, a welfare support meeting took place during which there was discussion about the claimant’s medication and diagnosis of coronary heart disease was discussed. At the end of the meeting, it was agreed that the respondent would get back in touch with the claimant after the claimant’s heart scan.[35]On 27 February 2024, the claimant undertook a second assessment with OH to examine, in particular, his coronary artery disease. The OH report stated that he had been absent since September 2023 due to a heart condition. It described that the claimant had been diagnosed with coronary artery disease which requires management with medication, but that he had had some difficulty with his medications causing side effects. It reported that he was experiencing ongoing chest pains and breathlessness and tiredness and dizziness as a result of his medication. Reference was also made to his longstanding musculoskeletal condition which affects his hips but has not affected his ability to work. The report concluded that he would not be fit work for at present.[36]On 15 March 2024, a welfare support meeting took place with the claimant to discuss his health and the possibility of the claimant attending an ENG1 appointment.[37]On 3 April 2024, the claimant attended an appointment with a cardiologist, further to which a report was issued. The report described the claimants symptoms and noted further tests were required. The cardiology report dated 3 April 2024 recorded that a therapeutic trial of colchicine was agreed.[38]On 18 April 2024, a welfare support meeting was conducted with the claimant to discuss his health, the possibility of proceeding to capability review meetings and making the claimant aware of the payments he would be entitled to if the company had to proceed to a capability dismissal. During this meeting, the claimant expressed a desire to be considered for IHR. The claimant explained that he remained under investigation and needed to understand the cause of his symptoms before considering a return to work. The claimant asked about IHR. AM told him she would speak to PH and get some information to him[39]On 21 May 2024, a welfare support meeting was conducted. During this meeting, the claimant said that he was feeling a lot better, but that he was still waiting the results of tests. The possibility of the claimant returning to work was discussed. AM brought up that the claimant had previously raised IHR and asked if he had spoken to his doctor. He said no, and said that maybe speaking to a consultant would be better. AM told him that IHR route would only be a potential consideration if he received a medical report that confirmed he would never work again. She explained that it was not straightforward and that it would need the approval of the HR Director and then would be forwarded to the Board of Pension Trustees.[40]The claimant was told that he needed medical evidence confirming that he would never work again as this medical evidence which the respondents considered necessary to be produced by the claimant in order for them to agree to his IHR and to make a referral to the pension trustees in accordance with the pension scheme rules with AON.[41]The claimant was still awaiting the results of ongoing cardiology investigations. He was asked about his thoughts on returning to work; he explained that he remained under investigation and needed to understand the cause of his symptoms before considering a return.[42]On 12 June 2024, the claimant attended another appointment at the cardiology department, further to which a report was issued which described that he was feeling much better. Although a definite diagnosis was not made, a number of serious problems were ruled out.[43]On 17 June 2024, the claimant received a notice of failure/restriction in relation to his MSF Seafarer medical examination. The ENG3 confirmed the claimant was temporarily unfit.[44]On 21 June 2024, a further welfare support meeting was held with the claimant to discuss the results of the claimant’s ENG3. He said that he was feeling a lot better and back to himself. However, the claimant remained unable to return to work and was waiting the results of a scan.[45]On 5 July 2024, the claimant again attended an appointment with a cardiologist. A report was produced noting that that no ongoing significant issue was identified and no further tests were ordered.[46]On 30 July 2024, a further welfare support meeting was held with the claimant. The claimant explained that he had received confirmation that his hip operation was imminent and that recovery for each hip surgery would be 3-6 months each. The claimant explained he was due to undergo surgery on his right hip, with any decision about surgery on the second hip to be made after assessing the outcome of the first operation. He reported that his pain, breathlessness and tiredness had returned, and that his symptoms fluctuated. He also noted that he had attended his preoperative assessment and that recovery was expected to take 3–6 months. When asked about returning to work, the claimant explained that he continued to struggle with symptoms. Alternative roles and the possibility of capability termination were discussed.[47]On 28 August 2024, a capability review meeting took place to discuss the claimant’s long-term sickness absence. The claimant attended with Jennifer McKechnie ( JM), his trade union representative. He confirmed that there was no damage to his lungs or heart and had been discharged by cardiology, but that he continued to experience symptoms which rendered him unfit for work. He said he had spoken to a friend who had suggested he should investigate if he fibromyalgia and that he was attempting to arrange a referral to a rheumatologist.[48]The claimant said that he was coming to the end of sick pay and wanted to be back at work but needed a diagnosis. He asked if he went to a rheumatologist and they found out what he had and that stopped him from working, then he might be able to get IHR?[49]AM responded that they could put forward a request but before they could do that they needed a letter from a medical practitioner saying that he would never work again in any industry. The claimant said that if he was diagnosed with fibromyalgia, then he would have a disability and cannot work again.[50]The meeting was adjourned for one month to allow the claimant the time to gather the necessary medical evidence.[51]On 9 September 2024, the claimant received two reports from Dr Marc Aitken, Consultant Rheumatologist. The first report set out a differential diagnosis of fibromyalgia versus ANCA associated inflammatory disease and listed the symptoms and investigations undertaken. The second, updated report confirmed that ANCA testing was negative and that the claimant’s symptoms were consistent with fibromyalgia, with duloxetine recommended as treatment. The letter also states that “there is some reasonable data to support the use of cognitive behavioural therapy as a strategy for managing pain and fatigue.” Ongoing monitoring of the medication and symptoms was to be undertaken by the Claimant’s GP.[52]On 1 October 2024, the claimant attended another rheumatology appointment. This report focused on the claimant’s fitness to continue working given his diagnosis of fibromyalgia. It described that there is no cure for fibromyalgia but that symptoms can be helped with a number of approaches. On 1 October 2024, the claimant received a further report from Dr Marc Aitken, Consultant Rheumatologist. This report confirmed that the claimant’s symptoms were consistent with fibromyalgia, described as a chronic pain sensitisation disorder characterised by relapsing and remitting episodes of pain, exhaustion and discomfort. The report noted that there is no cure for fibromyalgia and that, given the longstanding duration of the claimant’s symptoms, these were unlikely to fully resolve. The report also recorded associated symptoms including neuropathic pain, headaches, poor concentration, atypical chest pains, ENT symptoms and bilateral labral tears.[53]This letter was provided to assist in determining the claimant’s fitness to continue working.[54]On 3 October 2024, a further Capability Review Meeting took place, attended by the claimant and JE. The claimant had provided the rheumatology report dated 1 October 2024 earlier that day via email. PH confirmed that a medical letter stating that the claimant would never work again was required before an ill‑health retirement referral could be progressed. JM asked if the claimant could get this, would it still require company approval and was told that it would. The claimant said that his condition was not curable, but he could not say he would never work again. PH told him that was why the respondents needed medical letter confirming that. JM asked what happened if this was obtained. PH said that she would then send this with the claimant’s request for IHR to the Directors and if approved it would go to the pension trustees. She confirmed the referral had to be approved by the Board of Directors. The claimant said there was no cure for his condition which was chronic.[55]The claimant asked for a copy of the ill‑health retirement policy, explaining that he had contacted the pension scheme but had been unable to locate it. The claimant referred to the members booklet which said IHR could be taken at any time. PH confirmed that the process was not guaranteed and required the necessary medical evidence. The meeting was adjourned to allow the claimant further time to obtain the medical evidence requested.[56]Prior to 18 October, the claimant had been in touch with AON directly about IHR. They responded to him advising that the application needed to be approved by the respondents and the Pension trustees following medical evidence presented to both parties. The claimant was supplied with an extract from the ‘Guide to benefits’ from the Calmac Pension Fund.[57]It contained the following: “An ill health retirement pension can be taken at any time. Your employer must grant its approval and the trustees must receive satisfactory medical evidence of your ill health before the pension can be awarded…. From time to time, you will be required to provide supporting medical evidence of continued ill health. If this evidence is not provided or you are deemed to have recovered, your ill health pension will cease to be paid.”[58]On 18 October 2024 a further Capability Review Meeting took place at which the Claimant was accompanied by JM. The purpose of the meeting was to explore whether the Claimant had received medical evidence which stated that he would never work again in any occupation; the medication duloxetine which the Claimant had been prescribed; and the likely consequences if the necessary medical evidence could not be obtained, such as exploring alternative roles or capability dismissal.[59]The claimant said confirmed that he had started medication but had not seen improvement and it would not make him better as there was no cure. He said that the medication could ease the symptoms, but there was no guarantee. He was told he did not have the required medical evidence for IHR. The claimant challenged that position, reading out the information he had received from AON. PH told him that the process which was always followed was that the respondents required a letter confirming the employee would never work again in any industry.[60]The claimant said that his GP had advised that he could not provide such a letter stating he would never work again as it went against his practice. PH explained the process which was followed and the necessity of a medical report/letter stating the claimant would never work again. PH did not think based on the medical evidence she had to date that this was the case. JM raised the fact that the claimant was early in his journey with medication and more time was needed. PH agreed to re-refer the claimant to OH. She also agreed to ask the HR director’s view but was not optimistic about her response.[61]On 22 October, PH emailed the claimant in response to his questions about the scheme rules confirming the following:• The employer must agree a member can take IHR.• For an IHR pension, the rules define incapacity as a member's ill health which is bad enough in the employer's opinion acting on the basis of written medical evidence to prevent him from following his own or any other occupation.• Written medical evidence is defined as medical evidence received by the trustees regarding the state of health of the member from a practitioner who is fully registered within the meaning of the Medical Act 1983.• “Incapacity” means a member’s ill-health which is bad enough in the employer’s opinion (acting on the basis of written medical evidence) to prevent him from following his own or any other occupation. In order to fall within this definition, the Member must have actually ceased to carry on his normal employment.[62]On 30 October 2024, the claimant attended a further appointment with Consultant Cardiologist Mr Allister Hargreave, who produced a report. The report recorded that the claimant was experiencing less chest pain and breathlessness than a year previously but continued to have significant problems with exhaustion, noting that if he overexerted on a good day, he required two days of rest afterwards. The report noted the claimant’s diagnosis of fibromyalgia and stated that there was no adequate cardiological explanation for his episodes of chest pain, which might form part of his fibromyalgia syndrome.[63]The cardiologist recorded that the claimant’s debilitating exhaustion appeared to date from his Covid 19 infection and that long-covid was a “distinct possibility”. The report summarised the claimant’s previous normal cardiac investigations and arranged formal pulmonary function tests to exclude respiratory causes. A routine cardiology follow up was not required.[64]On 31 October 2024 the claimant underwent a further medical assessment with OH to review his long‑term sickness absence and fitness for work. The report recorded that the claimant remained unfit to return to his contractual duties due to ongoing symptoms including fatigue, breathlessness, joint aches, chest pains and difficulties with concentration and memory. The report stated that “Mr Bickerstaff does report ongoing symptoms which he tells me may fluctuate.” The report stated that the claimant’s symptoms were fluctuating and functionally limiting, and that no workplace adjustments were identified that could facilitate a return to work at that time. A meaningful improvement in symptoms and day‑to‑day functioning would be required to enable an effective and sustainable return. It sated that due to the fluctuating nature of fibromyalgia, no definitive timescale for a return to work could be provided. It states that the claimant’s condition may be compounded by a respiratory condition which was under investigation. Under the heading Is a full recovery expected, the report stated: “Mr Bickerstaff does have long term health conditions and therefore the aim of treatment is to manage his ongoing symptoms. In terms of fibromyalgia in particular this can be triggered by physical or emotional stress and may follow a fluctuating course over time. In addition to his current medication and pacing strategies he may benefit from psychological support which I would encourage him to explore through the GP or Employee Assistance Programme if available to support his recovery…”[65]PH did not consider the claimant had provided the medical evidence necessary to the respondents agreement to IHR, however on 24 November 22024, PH referred the OH report and Dr Hargreaves report of 1 October 2024 to her HR director asking if the company would approve consideration for IHR. As PH had anticipated, this was refused on the basis that the medical evidence did not support that the claimant would never work again.[66]On 2 January 2025, the claimant undertook another medical assessment with OH Health to assess the likelihood of never working again in any industry. PH had advised OH that the respondents were considering the claimant for IHR, and asked if in the doctor’s opinion it was likely that the claimant would work again. She confirmed to the claimant that she had done this in an email of 21 November 2024. OH were provided with all of the medical reports which the claimant had produced to the respondents[67]The OH report which was produced dated 8 January 2025 recorded that the claimant remained unfit to return to his contractual duties due to ongoing symptoms including extreme fatigue, breathlessness, joint aches, chest pains and difficulties with concentration and memory. It was noted that the claimant tired easily, often required to lie down after light activity, and that on better days, he could walk his dog for 20–30 minutes on flat ground but needed to rest afterwards. No workplace adjustments were identified that could facilitate a return to work at that time.[68]The report stated that the claimant would likely attract cover under disability legislation. The report noted that the claimant had not yet reached maximum medical therapy, had not undertaken CBT and was awaiting pulmonary function tests.[69]In answer to the referral question: “would the claimant be considered the claimant be considered for IHR”, the report stated that, after all reasonable treatment options had been exhausted, it was possible that the claimant could be considered for an application for early ill health retirement. It stated that eligibility for IHR would ultimately be a decision for an Independent Registered Medical Practitioner (IRMP) following a formal application to the pension scheme, and that the pension scheme would consider the IRMP’s recommendations together with any medical evidence they held in order to determine the appropriate tier.[70]Under the heading ‘Review’, the OH report recommended further OH review after the claimant had had further treatment, at which point further fitness for work could be provided.[71]Given this recommendation, and the fact that it stated all treatment options had not been exhausted, PH and AM took the view that the report did not confirm that the claimant could never work again.[72]The reason the respondents did agree to the claimant’s IHR and not make a referral to the Trustees was because PH ,AM and the HR Director did not consider that the medical evidence which was necessary to the respondents agreeing to the claimants IHR and their making a referral to the Trustees, as required by the pension rules, had been produced.[73]On 30 January 2025, a further capability review meeting took place, attended by the claimant and JM. At this meeting, the claimant was advised that the view was taken that he had not yet exhausted “reasonable treatment”, referring to increasing his duloxetine dosage and undertaking CBT. The claimant explained that he had been unable to tolerate a higher dose and that his GP had advised against it.[74]It was confirmed that the company and its directors would not support an IHR referral because they had not received a medical letter stating that the Claimant would “never work again”. The claimant stated that he felt the company had been preventing him from applying for ill health retirement, and JM queried who within the company had reviewed the medical evidence and made the decision. It was confirmed that the decision rested with the company and not the Trustees.[75]It was explained that if the claimant were dismissed, he would become a deferred member of the pension scheme and could apply for IHR directly to the pension scheme at that stage. JM requested a copy of the pension rules and a written report setting out the reasons why the claimant was not being permitted to apply for ill health retirement, who made the decision and when. The respondent agreed to provide this information.[76]On 14 February 2025 the claimant was informed in writing that “the decision has been taken to terminate your employment on the grounds of capability… due to your long-term incapacity”, with effect from that date. The letter stated that, following a review of the medical information including consultant letters and OH reports, the respondent did not support the caimant’s request for an ill health retirement referral on the basis that “the medical information does not state that you are prevented from following any other occupation”. The letter confirmed that the claimant would be made a leaver from the pension fund from the termination date and that any future application for ill health retirement would require to be made directly to the pension scheme as a deferred member.[77]On 19 February 2025, the claimant appealed against the decision to dismiss him on capability grounds and against the respondent’s refusal to support an IHR referral. In his appeal, the claimant stated that he disagreed with the decision not to permit him to apply for IHR as an active member of the pension scheme and that he believed the company had prevented him from doing so. The claimant also raised concerns regarding the process followed, including the requirement for a medical letter stating that he would “never work again”, the interpretation of the OH report.[78]On 11 March 2025, in advance of the appeal hearing the claimant was sent a copy of the Pension Fund Rules.[79]On 17 March 2025, an appeal hearing took place chaired by RC, Head of Major Vessels. Further to the hearing, PC confirmed that the decision not to support an ill health retirement referral had been made by the HR Director and explained the basis on which the decision had been reached.[80]On 28 April 2025 the claimant made a complaint to the Trustees through the internal dispute resolution procedures regarding the respondent’s failure to refer him for early ill-health retirement. In broad terms, the complaint was that the respondent misinterpreted the rules and should have referred him to the pension trustees for IHR because he did have sufficient medical information stating that he was unfit for his role and any occupation within the company.[81]On 21 August 2025, the Trustees wrote to the claimant to inform him that his complaint had not been upheld. The Trustees considered that the respondents were within their rights to make the decision that the medical evidence was insufficient to meet the IHR provisions in the pension rules.[82]The claimant has made a complaint to the pension ombudsman which has yet to be determined. Note on Evidence[83]There was no material conflict in the evidence. Ms Mackie made submissions on the claimant’s credibility, however no material facts were in dispute, and the dispute between the parties centred around how matters were dealt with, or matters of interpretation. Submissions[84]The parties made full oral submissions and written also provided. In the interests of brevity these are not set out here but are dealt with below where relevant.
Consideration
[85]This claim is brought under section 15 of the EQA which states: (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.[86]There is no issue arising from disability status or knowledge of disability.[87]In order to succeed in a section 15 claim, the following elements must be established:• there must be unfavourable treatment;• there must be something that arises in consequence of the claimant’s disability;• the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability, and• the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[88]The unfavourable treatment relied upon, which was identified at the start of the hearing, was; loss of opportunity - being prevented from applying for ill health retirement whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ that never appeared in the Rules of the pension scheme.[89]In submission the claimant suggested that there were two acts of unfavourable treatment as set out in an agreed list of issues. These were identified as:(1) Because of the claimant’s long term sickness absence and inability to secure a category 1 ENG1, he was dismissed, meaning he ceased to be an active member of the pension scheme.(2) His dismissal removed his opportunity to be considered for IHR as an active member, a loss directly linked to his disabilities.[90]The claimant then went on to submit that the unfavourable treatment relied upon was: “The refusal to allow the claimant to make an ill health retirement application whilst still an active member of the pension scheme up to the date of dismissal on 14 February 2025 which extinguished his right to be considered for ill health retirement.”[91]There was no agreed list of issues. At the start of this hearing, against a background of the claimant’s representative having withdrawn from acting and the parties not having been able to agree a list of issues, time was taken to identify the unfavourable treatment relied upon by the claimant. This was identifies as noted above i.e.: “Loss of opportunity - being prevented from applying for ill health retirement whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ that never appeared in the rules of the pension scheme.”[92]This then was the alleged unfavourable treatment which was the basis of the claim and this was the case which the respondents understood they had to meet throughout the hearing. This therefore was what the Tribunal considered as opposed the recast version of the alleged treatment contained in the claimant’s submissions.[93]In any event with regard to the treatment it was suggested was relied upon in the claimant’s submission, there is no dispute that the claimant was dismissed and that the reason for this was capability. It is the claimant’s position that he was unfit for work could not return to work. It was specifically confirmed by the claimant at the start of the hearing that there was no standalone claim under section 15 of the EQA arising from his dismissal on on the grounds of his capability. It is not suggested by the claimant that his dismissal was an act of discrimination under section 15 or any other provision of the EQA or unfair under the Employment Rights Act 1996. Loss of opportunity which arose from a dismissal which was not unlawful, could not constitute unfavourable treatment for the purposes of a Section 15 EQA claim.[94]The Tribunal considered if the treatment relied upon was unfavourable treatment. The actual treatment alleged, as opposed to loss of opportunity which is the consequence of the alleged treatment, is being prevented from applying for ill health retirement whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ that never appeared in the rules of the pension scheme.”[95]‘Unfavourable’ could be construed synonymously with ‘disadvantage’ and there is a relatively low threshold to engage section 15.[96]IHR a benefit which is only available to an employees whose ill health was such that they could not follow their own or any other occupation. In terms of the respondents pension scheme it was a precondition of accessing that benefit that the respondents agreed to the employee getting IHR on the basis that they were satisfied, on the basis of written medical evidence, that the employee was prevented by ill health from following his own or any other occupation.[97]In complaining about a loss of opportunity to be considered for IHR while still an active member of pension scheme because HR had imposed the requirement of producing medical evidence stating the claimant could ‘never work again’ which wording the claimant said did not appear in the scheme rules, the claimant was in effect complaining about a condition of entitlement to IHR. That that cannot be viewed in isolation from the benefit of IHR . The condition was applied by the respondents only because the claimant wanted to make an application for a benefit (IHR) on the basis of his disability. It would be artificial to separate the two elements( i.e. the benefit of IHR and the conditions of accessing it). It cannot be correct that a disabled person, who does not meet the respondents pension scheme IHR criteria, can claim and they were subjected to unfavourable treatment under section 15 because they were not treated as advantageously as a person with a different disability or different medical history who satisfied the respondents pension IHR criteria would have been treated. This it appeared to the Tribunal, was the basis of the claimants argument. The unfavourable treatment alleged was the application by the respondents of their conditions before agreeing to the employee getting the benefit of IHR and making a referral to the pension Trustees. The Tribunal therefore did not conclude that the loss of opportunity -being prevented from applying for ill health retirement whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ that never appeared in the rules of the pension scheme, constituted unfavourable treatment for the purposes of the section 15 claim.[98]In reaching this conclusion the Tribunal did not consider that anything turned on the respondents requiring medical evidence which sated that the claimant would never work again , albeit that is not the language used in the pension rules. The Tribunal was satisfied that this was the language used by HR to explain the application of the scheme to members and it explained how they understood and interpreted the wording unable to follow their own or any other occupation in the scheme.[99]The Tribunal however also considered the position in the event it is wrong in this conclusion, and that the treatment complained amounted to unfavourable treatment.[100]It therefore considered whether the treatment complained of was caused by the ‘something that arising in consequence’ of the disability relied upon. The ‘something arising’ relied upon was: long term sickness absence; inability to return to work; inability to obtain a category 1 ENG1; ongoing symptoms, and the need for medical investigation and treatment.[101]The question therefore was there whether being prevented from applying for ill health retirement whist still an active member of the pension scheme because HR imposed a requirement of ‘never work again’ which did not appear in the pension Rules, was unfavourable treatment because of the claimant’s long term sickness absence; inability to return to work; inability to obtain a category 1 ENG1; ongoing symptoms, and the need for medical investigation and treatment.[102]The Tribunal was satisfied that in the first instance the claimant was prevented from making an application to for IHR whilst still an active member of the scheme because in terms of the scheme he could not apply directly to the Trustees for consideration of IHR. A referral to the Trustees was not made by the respondents because, in implementation of their pension scheme with AON, the respondents had to agree to an employee taking an IHR pension on the grounds of capability, and they did not agree to this in the claimant’s case. The reason they did not agree was that they considered that in compliance with the rules of their pension scheme, which required that the employee was unable to follow their own or any other occupation, that they needed medical evidence confirming that the claimant would never work again in any industry. This is what the respondents looked for in the medical evidence provided in order to satisfy themselves that the employee was unable to follow their own or any other occupation, before they agreed to the Member’s IHR and to making a referral to the Trustees.[103]The Tribunal was also satisfied that the respondents did not consider that such medical evidence was available in the claimant’s case and did so in reliance on the medical reports which the claimant had produced, and reports from OH referrals over a period of time from October 2023 until January 2025. These reports included the report from an OH referral which had specifically asked for comment on the claimant’s eligibility for IHR. The claimant made much of the fact that the final OH the report stated that eligibility for IHR would ultimately be a decision for an Independent Registered Medical Practitioner (IRMP) following a formal application to the pension scheme, and that the pension scheme would consider the IRMP’s recommendations together with any medical evidence they held in order to determine the appropriate tier. However, that statement in the OH report was preceded by a statement to the effect stated that, after all reasonable treatment options had been exhausted, it was possible that the claimant could be considered for an application for early IRH. Further, under the heading ‘Review’, the OH report recommended further OH review after the claimant had had further treatment, at which point further fitness for work could be provided.[104]Objectively the respondents were entitled to conclude from the medical evidence they had that it was not being said that the claimant could not work again or could not follow his own or any other occupation.[105]The claimant may have had ongoing symptoms, and the need for medical investigation and treatment as a result of his disability, however that was not the reason why the respondents imposed a requirement of never work again. The respondents required medical evidence confirming that the claimant could never work again because they considered this was the criteria which it was necessary for them to apply to the implementation of their pension scheme to agree to IHR and to make a referral to the Trustees. The reason the respondents did not agree to IHR or make the referral to the Trustees was because they did not consider they had medical evidence to confirm that the claimant could not follow in his own or any other occupation; that was not because of further treatment or investigations which may have been required as result of the claimants condition; or because of his long term sickness absence; or his inability to return to work; or his inability to obtain a category 1 ENG1.[106]In the respondent’s assessment, neither the final OH report nor any of the medical evidence produced confirmed that the claimant would never work again in his own or any other industry or occupation.[107]The Tribunal was satisfied that as a matter of objective fact the reason the respondents imposed the requirement of medical evidence stating the claimant could never work again was because they considered that this was necessary to their agreement to IHR and a referral to the Trustees in terms of their pension scheme with AON. The reason they did not make the referral for IHR was because they considered that, in compliance with their pension rules, they had insufficient medical evidence upon which to make a referral to the trustees and did not consent to the claimant getting IHR.[108]The Tribunal did not conclude that the treatment complained of was because of the claimant’s long term sickness absence; inability to return to work; inability to obtain a category 1 ENG1; ongoing symptoms, and the need for medical investigation and treatment.[109]On this basis, the Section 15 claim does not succeed.[110]The claimant, in submission, complained about the legality of how the respondents operated the scheme. Mrs Bickerstaff submitted that the scheme anticipated recovery; there was trustee bypass; that the respondents had the obligation to obtain medical evidence; a decision was made without the required medical evidence; there was misplaced reliance on OH; that the respondents wrongly applied an internal veto. However, these it seemed to the Tribunal were matters which went to the respondent’s application of the scheme which were not all matters which necessary to the determination of the section 15 claim before the Tribunal.[111]The effect of the Tribunal’s conclusions is that the section 15 claim fails and is dismissed.