Mr C Lowe v GAR Trading Ltd T/a Cashing In: 4104188/2018

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4104188/2018

Venue Glasgow

Hearing 5 August 2019

Between

Mr Christopher LoweClaimant

GAR Trading Limited T/a Cashing InRespondent

Before

Employment Judge J D Young

Ms L Neil (instructed by Solicitor) for claimant

Mr W Lane (instructed by Solicitor) for respondent

Date 2 December 2021

JUDGMENT

The Judgment of the Employment Tribunal is that the claimant was a disabled person as that is defined in s6 of the Equality Act 2010 in the period between 27 September 2017 and 24 January 2018.

REASONS

[1]In this case the claimant presented a claim to the Employment Tribunal complaining that he had been unfairly dismissed; discriminated against on the grounds of disability and due notice pay by the respondent.

[2]The respondent denied these claims. They disputed that the claimant was a disabled person as that is defined within section 6 of the Equality Act 2010; even if he was a disabled person he was not discriminated against on those grounds; that the respondent did dismiss the claimant but for reasons of gross misconduct and that dismissal was fair; and as the dismissal was for gross misconduct no notice pay was due.

[3]The Tribunal determined that there should be a preliminary hearing on the issue of disability status. The issue for the Tribunal was whether or not, at the relevant time, the claimant was a disabled person as that is defined in section 6 of the Equality Act 2010. The claim form for the claimant complained of discrimination in the period 27 September 2017 through to the effective date of termination of his employment, being either 10 or 11 January 2018, and the subsequent appeal of 24 January 2018. Documentation

[4]The parties had helpfully liaised in producing a Joint Inventory of Productions for the hearing paginated 1 – 130 (J1-130).

The Hearing

[5]At the hearing evidence was given by the claimant; Patrick Collins MBChB MD FRCS, Consultant General and Colorectal Surgeon at Dumfries and Galloway Royal Infirmary; Andrew Lowe, the claimant’s father; and Mrs Joan Ross, wife of the respondent’s Director George Ross and fifty per cent shareholder in the respondent.

[6]From the documents produced, relevant evidence led and admissions made it was possible to make findings in fact on the issue. Findings in Fact

[7]The respondent is a Pawnbroker in Dumfries. George Ross is a Director of the respondent. His wife Joan Ross assists him in the running of the business.

[8]The claimant was employed by the respondent in the period from 7 December 2010 until either 10 or 11 January 2018 (there being a slight difference between the claimant and respondent as to the effective date of termination).

[9]The claimant was Manager of the business in Dumfries from around April 2016 until termination of employment. On a day to day basis he would open the premises and prepare for the day’s business. The stored items received by the respondent were located up to two floors above the shop premises and so it was necessary for the claimant to take the stairs to collect or store items in the course of a day. He would also require to process transactions through the tills and deal with the necessary paperwork. He estimated that he may deal with 50/100 customers in a day not all of whom would make a sale or a purchase. He would require to assess the value of any items brought for pawn and the decision was then with the customer as to whether or not to accept the value given.

[10]On 23 September 2017 he fell ill with “fever and flu like symptoms and vomiting”. His health deteriorated over the succeeding few days and on 27 September 2017 he considered himself unfit to remain at work and closed the shop early. He was unable to attend work the following day. After text exchanges with Mr Ross he attended work on 29 and 30 September 2017.

[11]However in terms of the “medico-legal report” prepared by Patrick Collins, Consultant General and Colorectal Surgeon at Dumfries and Galloway Royal Infirmary (J128/130) he was admitted to Dumfries and Galloway Royal Infirmary on 3 October 2017 with a “4 day history of worsening pain in his buttock/perineal area and faecal incontinence.” At that time he was diagnosed with “potentially life threatening necrotising infection of his perineum”.

[12]The “triage information” noted on arrival at the Royal Infirmary (J42) indicated “infection/inflammation cellulitis” with “loss of bowel control 2 days ago, c/o of pain when mobilising and sitting.”

[13]The claimant had necrotising fasciitis being a “flesh eating bug” that kills the flesh and produces toxic blood and is capable of infecting vital organs”. The report from Mr Collins indicates that this illness will have led to “acute delirium and impairment of mental functioning secondary to systemic sepsis” and that “during early recovery, strong opioid painkillers may have also impaired cognitive function to a degree”. The claimant described that he “slipped in and out of consciousness” at this time.

[14]The initial employee “statement of sickness” form for SSP purposes issued to the respondent and completed by the claimant indicated that he was suffering from a “bacterial infection” (J43/44). Thereafter his father submitted a “statement of fitness for work” with a letter of 11 October 2017 (J45/46) which advised the respondent that the claimant was not to attend work because of “necrotising fasciitis (gluteal) requiring diversion stoma”. His accompanying letter addressed to Mr Ross advised that if he “googled” the condition he would “appreciate how seriously ill” was the claimant (J45).

[15]The claimant was in hospital for approximately 3 weeks. There was conducted on 3 October 2017 an “emergency surgical debridement of the necrotic (dead) and infected perineal tissue” and he then returned to theatre on 5 October 2017 for further debridement of the perineal wound. At that time there was formed a “transverse loop colostomy”.(J128/130)

[16]His condition was then managed on the ward with regular re-dressing and treatment of his wounds. He worked with a stoma care nurse to learn how to manage his stoma and had intensive input from physiotherapists.

[17]He was pronounced fit for discharge on 17 October 2017. At that time he was reported as “eating and drinking normally, managing his stoma bag independently and mobilising short distances (30 metres) with the aid of a walking stick”

[18]On discharge he required daily input from the district nursing team to manage his wound. The discharge letter from the Royal Infirmary (J48) advises that the claimant as at 17 October 2017 was “coping well with his stoma care and will recuperate at his parents’ home”.

[19]The claimant attended hospital in Dumfries on 4 December 2017 as he had a pain at the stoma site and was “passing mucus”. At that time he was examined and the stoma was found to be working correctly and he would be continued to be monitored at a clinic as previously arranged. At that time he was noted to have an “uncomplicated parastomal hernia”.

[20]However the parastomal hernia increased in size and by end December 2017 was the “size of a melon”. That resulted in the stoma occasionally leaking due to the increased size of the hernia. It was stated in a referral letter by his GP to the Royal Infirmary that the obvious parastomal hernia almost required the claimant to “carry it in his hands”.(J52) As a result of the hernia his sleep was interrupted; he was not able to stand for any length of time; or able to sit easily or properly; or climb stairs.

[21]Mr Collins indicated that a hernia was a common complication of a stoma and particularly a loop stoma being the procedure carried out for the claimant. The pain on the stoma site could be exacerbated by standing, straining or heavy lifting.

[22]Given the size of the wound involved the claimant was reviewed by a plastic surgical team at the New Victoria Hospital Glasgow on 26 February 2018. At that time it was reported that his wound was still “in the process of healing” and no formal plastic surgical intervention was deemed necessary.

[23]The claimant was admitted to the Royal Infirmary on 8 May 2018 for planned reversal of his colostomy and repair of his parastomal hernia. At that time the perineal wound had healed. This surgery was successful and the claimant was discharged on 12 May 2018. On discharge it was reported he was “mobilising with a stick and had managed twenty eight stairs with the physiotherapist supervising” (J128).

[24]Mr Collins advised that no mesh implant was made around the stoma area when the hernia was repaired in May 2018 as that may cause infection. He advised also that recurrence of a hernia after such a procedure is “quite high”.

[25]That proved to be the case with the claimant as the claimant then suffered an “incisional hernia”. Mr Collins advised that it would be more appropriate to term the second hernia as an “incisional hernia” i.e. caused by the incision in the previous procedures.

[26]The claimant was seen by Mr Collins at a surgical outpatient clinic on 12 November 2018 and was placed on the waiting list to have this hernia repaired. That procedure took place around 17 January 2019 when a mesh implant was used to repair the hernia.

[27]In his report (J128/130) Mr Collins anticipated that in the absence of complications the impairment of the claimant caused by the hernia would resolve “six weeks after the operation i.e. around beginning March 2019”.

[28]In the disability impact statement provided by the claimant (J33/34) he advises that symptoms of these procedures have had a substantial adverse effect on his ability to carry out normal day to day activities such as “walking, bending over, kneeling, sitting, lifting, sleeping and driving”. Mr Collins’ position was that all these symptoms “would be expected” in respect of the claimant’s condition.

[29]He also advised that “up to 50% of people would get” a parastomal hernia after a reverse loop colostomy and that was still likely six months after such a procedure. Use of a mesh on repair of a hernia might reduce the risk to 20/50% but mesh was not used in the procedure of May 2018 given the risk of infection.

[30]As these matters progressed the claimant’s father continued to advise the respondent of the claimant’s condition. On 24 October 2017 he sent a copy of the hospital discharge summary giving dates when the claimant was in hospital.(J56) At that time he advised that it was expected that the claimant would be unfit for work for a period. A further statement of fitness for work was submitted on 1 November 2017; and then again 10 November 2017. Those certificates (J58/61) identified “necrotising fasciitis” as the condition affecting the claimant including the “functional effects of your condition”. In the meantime arrangements were made by the respondent for disciplinary meetings with the claimant.

[31]The claimant remained absent from work until his employment was terminated by the respondents with effect from 10/11 January 2018 with an unsuccessful appeal hearing on 24 January 2018 (J62/94 and J98/106).

[32]The claimant lived with his parents immediately following the surgery to deal with the necrotising fasciitis. In the period between May 2018 and November 2018 he would spend four or five days at a time at his parents’ home and three or four weeks after the January 2019 procedure returned to his own house. He used a walking stick when he was discharged from the hospital in October 2017 until about January/February 2018. He then used a walking stick again after the operation in May 2018 for a period.

[33]The evidence of Mr Lowe Snr was accepted to the effect that at the onset of the necrotising fasciitis the claimant was confused and somewhat delirious and that after his operation was in the high dependency unit for 3/5 days. At that time he messaged the respondent to indicate that the claimant would not be at work and then submitted the statements of fitness to work and other information to the respondent regarding his son’s illness. When the son arrived to their home after the operation he required “24 hour care”. His son was in pain throughout the early stages and initially was bed bound.

[34]He found the claimant restricted in his mobility and noted that it was very difficult for him to bend, lift objects or make any sudden movement. He and his wife washed and cooked for him. Until May 2018 his son became quiet and did not wish to go out. He had been a person who socialised and enjoyed physical activity but that changed subsequent to the operation and the continuing issues over the parastomal hernia. With the parastomal hernia and colostomy bag he was “terrified to drive” and the safety belt would impinge on 30 both.

[35]After the colostomy was reversed and treatment given to his hernia in May 2018 he was “a bit more confident” but still found that he would be in pain and not wish to go out of the house. After the second hernia operation in January 2019 his condition improved.

[36]The claimant advised that his condition had affected his mental health. He was aware that had he not received emergency surgery he would have died from necrotising fasciitis. He advised he has suffered from not wishing to eat, low mood; not been able to socialise or have contact with friends or use social media. He has been “snappy with his parents over small matters” and has not had any desire to “get out of bed” and had feelings of being”intimdated”.

[37]The objective evidence in relation to the likely effect on the claimant’s mental health consists of:-(a) NHS UK material (J70/73) on necrotising fasciitis which indicates that the recovery process from surgery involves extended “physical therapy and long term psychological and emotional healing”.

(b) The evidence of Mr Collins to the effect that he understands the claimant has a past diagnosis of clinical depression and it was “reasonable to assume that his illness and protracted recovery would have had a negative impact on his mental health” and that there will be an element of “post-traumatic stress disorder”. 20 (J128/130)

[38]The claimant was prescribed Ofloxacin as an antibiotic as he made recovery from the surgery and ongoing issues arising. He has not been prescribed any medication in respect of depression. He has continued to take “over the counter” pain relief medication when required.

[39]Mrs Joan Ross had been an A&E nurse with some experience of colorectal issues. She saw the claimant twice after his absence from work. On the first occasion in December 2017 he had come to have his “wages cheque endorsed” and when she spoke to him she thought that he was in good spirits. She thought he was using a stick at that time but had been able to get up the steps into the office.

[40]She saw him on a second occasion in January 2018. She had come to the shop with her husband to find the claimant talking to one of the staff. She thought that he was showing his colleague the size of his hernia at that time. There was no conversation at that point but he did not “seem in pain”. Submissions

[41]It was agreed that the parties would lodge written submissions within 14 days of the hearing. No disrespect is intended in making a summary of the helpful submissions lodged. Submissions for the Claimant

[42]It was submitted for the claimant that clear evidence had been given from the claimant and his father and Mr Collins which was factual and measured. It was submitted that the evidence of Mrs Ross was unsympathetic of the claimant; that she seemed angered by the claimant and not prepared to accept his account of his symptoms.

[43]Reference was made to the definition of disability within the Equality Act 2010 and it was maintained at the material time during which the claimant was disabled was from 27 September 2017 until the final act of discrimination on 24 January 2018.

[44]Reference was made to the history of the onset of necrotising fasciitis and the subsequent parastomal hernia which had developed and the subsequent review for surgery on 26 February 2018 when the perineal wound was “still in the process of healing”.

[45]It was maintained that the impairment was physical and mental. Initially that impairment was necrotising fasciitis and then the parastomal hernia

[46]On mental impairment it was submitted that the focus should be on the effect on the claimant’s day to day activities which in terms of JB v DLA Piper UK Llp

UKEAT/0263/09

would confirm that the claimant was suffering from an impairment which had produced that effect as a matter of inference.

[47]It was submitted that the claimant commenced suffering from medical symptoms in September 2017 due to the necrotising fasciitis and became solitary. It was submitted that the impairment had an effect on the appellant’s day to day activities which was substantial. He would be unable to stand for lengthy periods. He would be unable to lift objects of any weight. He would have problems bending, kneeling, sitting, lifting, sleeping, driving and socialising. His mood was affected. Those were matters which would affect day to day activities including the normal activities at work. These matters were more than minor or trivial.

[48]It was also submitted that the impairments had a long term effect as they were likely to last for more than 12 months.

[49]It was submitted that in terms of Patel v Oldham Metropolitan Borough Council and Rushcroft Primary School

UKEAT/0225/09

that two consecutive impairments can be aggregated for the purposes of determining the duration of an impairment provided they are related. That was reflected in the guidance on the Equality Act 2010 at paragraph C2.

[50]The evidence was that the hernia resulted from the initial surgery. The surgery to correct the first hernia was the cause of the second hernia.

[51]Thus there was a long term effect. The disability would end on recovery from the final surgery associated with his condition on 21 January 2019. That was well outwith the 12 month period from September 2017. Submissions for the Respondent

[52]It was agreed by the respondent that the relevant period was between 27 September 2017 and 24 January 2018. The burden was on the claimant to demonstrate that he was disabled as that as defined in terms of the Equality Act 2010.

[53]It was accepted that the claimant had a physical impairment during the relevant time namely necrotising fasciitis but denied there was any mental impairment. No report had been made on the claimant’s mental condition. No medication or other treatment had been conducted in respect of this matter.

[54]It was denied that the claimant’s impairment had a substantial adverse effect on his ability to carry out normal day to day activities except for the three week period between 27 September and 16 October 2017. While the claimant had provided evidence of adverse effect on his ability to carry out normal day to day activities after August/September 2018 due to the recurrence of a hernia that period was considerably outside the relevant time.

[55]It was submitted that the medical evidence in respect of the period between 17 October 2017 and 24 January 2018 did not suggest there was a substantial adverse effect on the claimant’s ability to carry out normal day to day activities. It suggested that recovery was being made.

[56]Neither was it suggested in any other document that there was an ongoing substantial adverse effect.

[57]The claimant was able to participate in the disciplinary and appeal meetings without difficulty and at that time did not suggest there was an ongoing substantial adverse effect.

[58]The claimant’s disability impact statement was prepared around December 2018 sometime after the relevant period and so was of limited value. It was significant that the claimant had only sought over the counter medication for pain relief. Mrs Ross had described him as looking well and wanting to get back to work when she met him in December 2017/January 2018.

[59]It was submitted that there was no long term effect and that the sole material issue was the hernia which developed in December 2017 but that was repaired in May 2018. It therefore did not appear likely that the effect of the claimant’s impairment would last for at least 12 months.

[60]If it was contended that hernias after being repaired might recur then it was submitted that none of the medical records indicated that was likely. While Mr Collins gave evidence that in general hernias recur after repair he accepted that he did not inspect the claimant’s hernia at the relevant time and so was not able to provide any specific evidence on that aspect of matters.

[61]Mr Collins had not commented on whether the likelihood of the hernia which has recurred after being repaired could re-appear to bring about a recurrence of substantial adverse effect on day to day activities.

Conclusions

[62]The protection for disability discrimination afforded by the Equality Act only applies in respect of those who fall within the Act’s definition of a disabled person. The act defines a disabled person as a person who has a “disability” – section 6(2) and that is the case if he or she has a “physical or mental impairment” which has a “substantial and long term adverse effect on [his or her] ability to carry out normal day to day activities” – section 6(1). The burden of proof is on the claimant to show that he satisfies this definition.

[63]Supplementary provisions for determining whether a person has a disability are in Part 1 of Schedule 1 to the Equality Act 2010.

[64]In addition the government has issued “Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011)” (the “Guidance”) under section 6(5). The Guidance does not impose any legal obligations in itself but a Tribunal must take account of it where relevant. Finally the Equality and Human Rights Commission (EHRC) has issued a Code of Practice on Employment that has some bearing on the meaning of disability. Like the Guidance the code does not impose legal obligations but a Tribunal must take into account any part of the code that appears relevant.

[65]The time at which to assess the disability is the date of the alleged discriminatory act(s). This is the material time when determining whether that the impairment has a “long term effect”. The relevant period in this case is between 27 September 2017 and 24 January 2018.

[66]The words used to define disability require a Tribunal to look at the evidence by reference to four different questions:-• Did the claimant have a mental and/or physical impairment?

• Did the impairment affect the claimant’s ability to carry out normal day to day activities?

• Was the adverse condition substantial?

• Was the adverse condition long term?. Physical and mental impairment Physical impairment

[67]The claimant’s position is that in the material period he had a physical and 10 mental impairment. The evidence for the physical impairment is the onset of necrotising fasciitis and the life saving surgery undertaken which left him with a large wound after the debridement of the dead and infected perineal tissue. The onset of the necrotising fasciitis was on 23 September 2017. It is accepted that the initial symptoms involve flu like symptoms and fever and 15 that quickly an individual can become extremely ill as the infection enters the bloodstream involving dehydration, vomiting and intense pain.

[68]Surgery was undertaken on 3 October 2017 to remove the dead and infected perineal tissue. He returned to theatre on 5 October 2017 for further debridement of the perineal wound and at that time there was performed a 20 “transverse loop colostomy”. He was discharged from hospital on 17 October 2017.

[69]In terms of the report from Mr Collins the claimant did have a physical impairment in the aftermath of his surgery. At that time his mobility was limited. Pain would be made worse by prolonged standing, straining or lifting.

[70]A parastomal hernia developed. An urgent referral was made to Dumfries and Royal Infirmary by the claimant’s GP (J51/52) in which it was stated that the claimant had “recently been discharged from hospital” and that he had a “known parastomal hernia”. That had been “getting bigger over the last two months and is now the size of a melon”. Apparently the hernia had become so prominent that he “always needs to carry it in his hands”. This condition developed as a consequence of the surgery and transverse loop colostomy. That condition continued through to May 2018 when further surgery was undertaken. As at 26 February 2018 Mr Collins notes in his report that his wound “was still in the process of healing”. Accordingly the evidence showed that the claimant did have a physical impairment in the material period. Mental Impairment

[71]I would also accept the evidence that the claimant had a mental impairment in that period. While Mr Collins is not a psychiatrist he was able to advise that it was reasonable to assume that his illness would have a negative impact on his mental health. He advised that there would be an element of post traumatic stress disorder. The illness would have led to acute delirium and impairment of mental functioning in the initial period and the strong opioid pain killers would have impaired his cognitive function to a degree. The NHS UK Literature produced also indicates that the recovery process from necrotising fasciitis can involve long term “psychological and emotional healing”.

[72]The evidence of the claimant was that in this period he did not “wish to see anyone, eat, go out or contact people on social media” and was “snappy with his parents over small matters” and” would not wish to get out of bed all day” and had a feeling of “being intimidated”.

[73]The inference sought from the evidence of Mrs Ross was that the claimant was exaggerating the symptoms as she saw him on two occasions in December 2017 and January 2018 when he seemed “fine”. That impression of course was only a snapshot gained over a very short meetings. I could not accept that because Mrs Ross saw the claimant on two occasions and thought he was well meant that he was exaggerating his symptoms. Mr Lowe Snr also described his son’s condition over the period September 2017/January 30 2018 and that his son was “quiet, very depressed, not go out, not go where crowds” and did not continue with any physical activity such as the gym or socialising such as going to the pub to meet friends. I accept that a father will want to be supportive of his son but his evidence was given in a matter of fact way and I would accept that in the material period the claimant was affected by a mental impairment namely depression in his low mood and social isolation. I do not think that it is a difficult inference to make from the life saving operation and the consequences of the large wound, colostomy bag and development of the very large hernia in the material period. The Guidance

[74](A6) states that “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 the effects of a mainly physical nature may stem from an underlying mental impairment and vice versa”. Accordingly the Guidance recognises that effects of a mental nature may stem from an underlying physical impairment which would meet the circumstances of this case.

[75]In those circumstances I would accept that the claimant had a mental or physical impairment in the material period. Did the impairment affect the claimant’s ability to carry out normal day to day 20 activities

[76]In the material period I consider that there was an effect on the claimant’s ability to carry out normal day to day activities. I accept that the combination of physical and mental impairment meant he had no wish to see people or use social media; that he spent long periods in the house; that he had difficulty walking, bending, stretching and lifting and did not drive. That would restrict his ability for example to carry shopping bags, walk for any distance, carry out housework tasks and to exercise and socialise. He found it difficult to sleep. These would be considered normal day to day activities. Did the impairment have a “substantial adverse effect”

[77]Substantial is defined in section 212(1) of the Equality Act as meaning “more than minor or trivial”. Appendix 1 to the EHRC Employment Code provides guidance on the meaning of “substantial” where it states that the “requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people. Account should also be taken of where a person avoids doing things which for example cause pain, fatigue or substantial social embarrassment because of a loss of energy and motivation” – paragraphs 8 and 9.

[78]The claimant described the social embarrassment of having to deal with the colostomy bag in company. Hygiene of course was of paramount importance to prevent any cross infection. That isolated him within his home until such time as he would not have to cope with the colostomy. The additional factors were his difficulty in driving due to the weight of the hernia and the discomfort that caused in bending and wearing of a seat belt.

[79]Additionally his mobility was restricted as a consequence of the recover from the operation and the additional impact of the hernia.

[80]His low mood continued in that period to prevent him from socialising. I would consider that these were factors which would mean that the adverse effect on day to day activities was substantial. These were matters which went beyond the normal differences in ability which might exist among people. Was the adverse condition long term

[81]This is the most difficult area in this case. Under paragraph 2(1) of Schedule 1 to the Act the effect of an impairment is “long term” if it –• has lasted for at least 12 months (paragraph 2(1)(a)

• is likely to last for at least 12 months (paragraph 2(1)(b) or

• is likely to last for the rest of the life of the person affected (paragraph 2(1)(c)

[82]The time at which this assessment has to be made is at the date of the alleged discrimination. The meaning of “likely” in the context of disability discrimination legislation means that something “could well happen”. (SCA Packaging Ltd v Boyle [2009] UKHL37).

[83]In this case in considering the position as at the date of the alleged discriminatory acts the effects of the impairment had not “lasted for at least 12 months” and so the requirement is to look prospectively under paragraph 2(1)(b) as to whether the effect of the impairment was “likely to last for at least 10 12 months”.

[84]The initial impairment suffered by the claimant was necrotising fasciitis. That entailed a reverse loop colostomy. By the end of the relevant period (from about December 2017) the claimant developed a large parastomal hernia. A finding has been made that there was a substantial adverse effect on day to day activities given the combination of circumstances which affected the claimant’s mental health and his physical capability.

[85]Assessing the position in the relevant period to 24 January 2018 it would be expected that at some point in the relatively near future further surgery would entail to remove the colostomy bag and repair the hernia. It was likely that would be completed within a few months of the end of the relevant period. There would then be a necessary recovery period from that surgery, probably around 2 months or so. If there were likely to be no further issues at that time then it would be difficult to say that the effects of the impairments would have been likely to last at least 12 months.

[86]However the evidence from Mr Collins was that in the circumstances where a parastomal hernia is being repaired no mesh is used in that procedure given the risk of cross infection. Accordingly considering the position within the relevant period knowing that the claimant would require to have repair to the parastomal hernia then the likely position was that would be done without mesh.

[87]The position of Mr Collins on the likelihood of a further incisional hernia developing was put at 20/50%.

[88]That assessment is in my view sufficient to make a finding that after repair of the parastomal hernia a further hernia could well happen. The test that something is “likely” is not a test on the balance of probability which may require an assessment of more than 50%. The standard is lower and in my view a risk of between 20/50% means it “could well happen”.

[89]In that event one requires to assess the likely effects. The hernia would cause pain and physical discomfort. There would again be the difficulty in bending, stretching, driving, lifting heavy objects such as shopping and sleeping comfortably.

[90]I have found that the claimant’s mental condition was affected by the initial surgery in October 2017 the colostomy and parastomal hernia. It was likely that on further hernia developing (which could well happen) his mood would be affected by the further hernia. It would be realisation that the claimant was not at the end of the road in respect of surgical procedures. He would know there was more surgery to come. It was likely that it would affect his ability to socialise. It would affect his ability to exercise and the lack of exercise was not likely to lift his mood but lower his mood.,

[91]In those circumstances I consider that these conditions are related. If the claimant had not suffered from necrotising fasciitis there would have been no need for the stoma and colostomy bag. That meant a likely chance of a parastomal hernia. The repair to the hernia without mesh (given the risk of cross infection) meant the likelihood of a further incisional hernia. In determining whether the effects of an impairment are long term the effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months. (Patel v Oldham Metropolitan Borough Council

UKEAT/0225/09/CEA

). Here the parastomal and incisional hernia are likely to develop from the initial illness and so can form part of the assessment of whether the effect of the original impairment is likely to last for twelve months.

[92]Separately in respect of long term effect, the Guidance states that the likelihood of recurrence should be considered taking all the circumstances of the case into account including what the person could reasonably be expected to do to prevent the recurrence (paragraph C9 of the Guidance). Again in assessing the likelihood of a claimant’s impairment recurring and thus qualifying as “long term”, an Employment Tribunal should disregard events taking place after the alleged discriminatory act prior to the Tribunal Hearing. Richmond Adult Community College v McDougall

[2008] ICR 431

[93]Paragraph 2(2) of Schedule 1 to the Equality Act 2010 provides that 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 treated as continuing to have that effect if the effect is “likely to recur”. Again “likely to recur” means “it could well happen”. In this case assessing the position within the relevant period it was certain that the claimant would require to have further surgery to remove the colostomy and repair the hernia. That was likely to happen within a few months of the end of the relevant period. Again there was a likely recurrence of hernia given that it would not be repaired with a mesh due to the risk of cross infection. Again Mr Collins’ evidence was that the risk of recurrence of the hernia was between 20/50%. In those circumstances the recurrence of the hernia could well happen. Again the test is not on the balance of probability which may mean likelihood greater than 50% but on a lower standard.(SCA 25 Packaging v Boyle

2009 ICR1056

HL)

[94]In those circumstances even if there was a period of time where the impairment ceased to have a substantial adverse effect on a person’s ability to carry out normal day to day activities it is treated as continuing if the effect is “likely to recur”. In those circumstances I consider that it could well happen that the effects of the impairment in this case were likely to be long term i.e. greater than 12 months.

[95]In those circumstances I find that the claimant has been able to discharge the burden on him of establishing that he was a disabled person as that as defined in section 6(1) of the Equality Act 2010. In those circumstances a further Preliminary Hearing should be arranged (preferably by telephone) to determine future procedure. Employment Judge: J D Young Date of Judgement: 18 October 2019 Entered in Register, Copied to Parties: 22 October 2019 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104188/2018 Hearing at Glasgow on 20, 21, 22, 23 and 24 September 2021 Employment Judge: M A Macleod Tribunal Member: P McColl Tribunal Member: J McCaig Claimant Represented by Ms K Stein Advocate Christopher Lowe GAR Trading Ltd t/a Cashing In Respondent Represented by Mr L Lane Solicitor

conclusions.

[96]The true reason for dismissal was that the respondent did not want to have an employee off sick for a long time. The spirit of reasonable adjustments is to create a level playing field, but that is not what happened here. He was subjected to harassment by the respondent creating a hostile environment, disregarding his physical and mental state, especially in the appeal hearing.

[97]She invited the Tribunal to find that the claimant and his witnesses were credible and reliable, whereas it was “not above” the respondent to fabricate evidence. Mr Ross appeared to be unfamiliar with the statements so he either pointed to the advisers or to his wife as knowing what was happening.

[98]The two incidents of unfavourable treatment were that he was put under pressure to open the shop when the respondent was aware that he was unwell, and insisting that he attended the hearings when he was disabled and unfit.

[99]Ms Stein relied upon the schedule of loss for the remedy to be granted to the claimant.

[100]Mr Lane referred to the familiar legal authorities and submitted that the respondent had reasonable grounds upon which to conclude that the claimant had committed acts of gross misconduct, which they upheld.

[101]He submitted that the claimant's health did not render it unreasonable for the respondent to uphold the allegations. The allegations of misconduct related to events on 21 September, whereas the claimant’s illness did not manifest itself until 23 September. After closing the store the claimant drove home and did not seek medical attention. There was no reason for him to be unable to contact his bosses due to his health. His misconduct was in failing to contact them to inform them that he was unable to continue working on that day.

[102]The investigation fell within the band of reasonable responses. The statements were provided fairly - Heather Carpenter said so in relation to her statement. Dylan Melbourne said that he had been forced to give the statements he did, but he signed those statements and he has given 5 evidence out of loyalty to the claimant. In any event, those statements relate to the allegations which were not upheld.

[103]Dismissal was within the band of reasonable responses, he submitted. The respondent did rely on the final written warning, and made reference to what had happened before. The respondent followed a fair io procedure, compliant with the ACAS Code of Practice. It is accepted that Ms Hamilton is the Rosses’ daughter, but there were no other employees of the business who were not involved in this matter and they required to have someone take notes. They could have appointed a contractor but that would have come at a further cost. 15 104. Mr Lane accepted that Employment Judge Young found that the claimant was disabled within the meaning of the 2010 Act from 27 November 2017 until 24 January 2018. The respondent did not have actual knowledge that the claimant was disabled at that time. At the end of September 2017, the claimant himself did not know the extent of his illness. 20 1 05. There were no threats by the respondent to the claimant. The text message at 110 cannot be said to amount to unfavourable treatment under section 15 of the 2010 Act.

[106]It was reasonable to proceed with the hearings. The respondent was concerned about the claimant's conduct, and it was for that reason he was 25 dismissed, though it is now accepted that he was disabled at the material time.

[107]Dismissal was a proportionate means of achieving a legitimate aim, that is to maintain standards of conduct, particularly in relation to a senior employee of the business.

[108]The PCP relied upon by the claimant is the implementation of the disciplinary process. He has not established that he suffered a substantial disadvantage, and in any event the claimant himself expressed that he was anxious to proceed to a conclusion. He did effectively participate in the process.

[109]With regard to harassment, Mr Lane argued that the claimant has failed to establish that even if there were failings in the disciplinary process they were related to the claimant’s disability. Some adjustments were made for the claimant.

[110]Mr Lane then addressed the Tribunal on the question of remedy.

The Relevant Law

[111]In an unfair dismissal case, where the reason for dismissal is said to be conduct, it is necessary for the Tribunal to have regard to the statutory provisions of section 98 of ERA. The Tribunal considered the requirements of section 98(1) of the Employment Rights Act 1996 (“ERA”), which sets out the need to establish the reason for the dismissal; section 98(2) of ERA, which sets out the potentially fair reasons for dismissal; and section 98(4) of ERA, which sets out the general test of fairness as expressed as follows: “Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and

(b) shall be determined in accordance with the equity and substantial merits of the case.”

[112]Further, in determining the issues before it the Tribunal had regard to, in particular, the cases of Burchell and Iceland Frozen Foods Ltd, to which we were referred by the parties in submission. These well known cases set out the tests to be applied by Tribunals in considering cases of alleged misconduct.

[113]Burchell reminds Tribunals that they should approach the requirements of section 98(4) by considering whether there was evidence before it about three distinct matters. Firstly was it established, as a fact, that the employer had a belief in the claimants conduct? Secondly, was it established that the employer had in its mind reasonable grounds upon which to sustain that belief? Finally, that at the stage at which that belief was formed on those grounds, was it established that the employer had carried out as much investigation into the matter as was reasonable in all the circumstances of the case?

[114]The case of Quadrant Catering Ltd v Ms B Smith

UKEAT/0362/10/RN

reminds the Tribunal that it is for the employer to satisfy the Tribunal as to the potentially fair reason for dismissal, and he does that by satisfying the Tribunal that he has a genuine belief in the misconduct alleged. Peter Clark J goes on to state that “the further questions as to whether he had reasonable grounds for that belief based on a reasonable investigation, going to the fairness question under section 98(4) of the Employment Rights Act 1996, are to be answered by the Tribunal in circumstances where there is no burden of proof placed on either party.”

[115]The Tribunal reminded itself, therefore, that in establishing whether the Respondents had reasonable grounds for their genuine belief, following a reasonable investigation, the burden of proof is neutral.

[116]Reference having been made to the Iceland Frozen Foods Ltd decision, it is appropriate to refer to the well-known passage from that case in the judgment of Browne-Wilkinson J: 'Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by S.57(3) of the 1978 Act is as follows:(1) the starting point should always be the words of S.57(3) themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in Judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair. ' 1 1 7. Section 1 5(1 ) of the 201 0 Act provides, "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.”

[118]Section 20 of the 2010 Act sets out requirements which form part of the duty to make reasonable adjustments, and a person on whom that duty is imposed is to be known as A. The relevant sub-section for the purposes of this case is sub-section (3): “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[119]Section 21 of the 201 0 Act provides as follows: "(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. . . ”

[120]The Tribunal also had reference to section 26(1 ) of the 201 0 Act: “A person(a) (A) harasses another

(b) (B) if - (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B...” Discussion and Decision 121 . The issues for determination by the Tribunal in this case were set out on the Agreed List of Issues (65). The Tribunal addresses each of these in turn.

[122]Before doing so, it is appropriate to make some observations on the evidence which we heard.

[123]While we heard evidence from a number of witnesses, it is our view that the two crucial witnesses in this case were the claimant and George Ross. However, we require to address the evidence given by others.

[124]The claimant called Dylan Melbourne and Heather Carpenter as witnesses in support of his case. Mr Melbourne asserted before us that the statements which he had given to the internal investigation had been extracted from him under duress. Whether he simply signed what had been typed for him or wrote down what he was told, we were not entirely clear: however, we concluded that while he may have felt under some pressure about what he had to say, it was very unlikely that he would sign statements in writing making the comments he did without there being some basis for doing so. He did not emerge as an individual who was unable to stand up for himself, and indeed since the investigation was being conducted by an independent consultant on behalf of the respondent, it was open to him to contact that consultant to recant or revise his statements. We were very unclear as to Mr Melbourne's intentions but ultimately felt that he was speaking on behalf of the claimant, whom he regarded as a friend. His approach was contradictory and in the end we concluded that since the respondent was unaware until after the decision was taken that he had decided to recant his statements it was legitimate for them to take them into consideration in reaching their decision.

[125]So far as Heather Carpenter is concerned, her evidence related largely to matters which were outwith the issues which the Tribunal has to address. She did not complain that her statement was induced from her against her will, which further casts doubt on Mr Melbourne's position.

[126]In addition, the claimant called his father, Mr Lowe, to give evidence. He was, in our view, a good and helpful witness, seeking to be honest but also supportive of his son. Ultimately we found his evidence to be reliable.

[127]For the respondent, other than Mr Ross, we heard from Mrs Joan Ross. Her evidence, particularly in chief, was notably brief, and her disposition before us was of one who did not wish to be in attendance. Her tendency to look either to her husband or her legal adviser before giving answers, and her combative and somewhat dismissive attitude under crossexamination, undermined the utility of her evidence. Again, however, hers was not a central role in this case.

[128]We considered that Mr Ross was a straightforward witness who was able to explain the stance taken by the respondent in reaching the decision to dismiss the claimant. We felt that his evidence illuminated and assisted the Tribunal in understanding the rather brief letters in which he issued his decision to dismiss the claimant and to reject his appeal. He remained calm under cross-examination and in our judgment emerged as an honest witness.

[129]The claimant’s evidence gave us some difficulties. While remaining relatively good-humoured and apparently open in his manner, we found his evidence to be confusing and at times incredible.

[130]We accepted, of course, that the claimant has undergone a deeply unpleasant and distressing medical condition which required significant input and treatment over a period of time, and that this must have affected him at times during the internal processes.

[131]However, there were three areas in particular where we found the claimant’s evidence difficult to reconcile. Firstly, his position with regard to the respondent’s decision to proceed with the investigation, disciplinary and appeal hearings was very unclear, taking all of the evidence into account. While he made clear before us that he thought the respondent should not have proceeded with the hearings at the time they did, he did not quite convey that to the respondent at the time. While he did suggest that they had not appreciated how ill he was, he also agreed to attend at each of the hearings, and at no stage did he protest or seek an adjournment of any of the hearings due to ill health.

[132]The claimant clearly felt that the respondent over-emphasized the point that he was anxious to press on with the hearings so as to bring the matter to a conclusion, but in our judgment, he repeated this statement both in writing and in person, and in the absence of any clear application by him to defer the process we considered that the respondent was entitled to proceed as scheduled. His criticisms appeared to us to be an attempt to revise his true position before us.

[133]Secondly, we were very unimpressed by the claimant’s evidence about the events of the evening of 21 September 2017. In the disciplinary process, the claimant suggested that the reason he had returned to the shop was to retrieve his mobile phone, something which he had had to do on a number of occasions before. However, under re-examination, his evidence became confused and confusing. He said that he had been trying to remember what did occur there; that one of the reasons he would be late in the shop (though it was not clear whether he meant this occasion) would be because customers were trying to get into the shop; that he would sometimes go in late to check everything after customers top coming in; that something had not balanced so he would have to stay a lot longer in the shop. He went on to describe this as “not a satisfactory answer”. We would agree with that.

[134]In our view, the claimant’s evidence about this was entirely unsatisfactory. He appeared to us to be seeking to cast around for possible explanations as to why he was in the shop, which caused us to believe that he was avoiding the truthful explanation, supported by the CCTV system records, that he had gone in late, alone, to the shop in order to carry out a transaction on his own, and then destroy the evidence that he had been there. His evidence on this point entirely lacked credibility and we rejected it. 1 35. Thirdly, the claimant spent a great deal of time complaining about the inaccuracies and gaps in the notes of the investigation meeting of November 2017. Indeed, it formed the core of his appeal against dismissal. His approach, both before us and in the internal process, was to decline to answer specific questions as to what he considered the inaccuracies and gaps in the notes to be. His attitude seemed to be that it was sufficient for him to say that there were inaccuracies, and that it was for the respondent to find them. They investigated the matter - the independent consultant listened to the recording and compared it to the notes - and were unable to understand the claimant’s criticisms. In our judgment, the claimant’s evidence on this point was not only unsatisfactory but inexplicable. He raised a criticism but was not prepared to say what he meant by it. This was conduct which was not designed to help the internal process, nor the Tribunal in trying to establish what his concern was. We were left to conclude that he simply wanted the Tribunal to infer that the notes were inaccurate, without having to commit himself and point to them; and that his criticism was therefore baseless and unfairly designed to heap criticism upon the respondent.

[136]Accordingly, we were unable to find that the claimant was a credible or reliable witness.

[137]The issues before us, then, were separated into the different heads of claim, and we addressed them under those headings. Unfair dismissal• What was the reason for the claimant’s dismissal?

• Was it a fair reason ?

• Was it fair under section 98(4) Employment Rights Act 1996?

[138]The respondent dismissed the claimant on 10 January 2018 by a letter from Mr Ross (195). The letter was not well drafted. Essentially, Mr Ross referred to the report by Rachel Waugh, the independent consultant who had been contracted to carry out the disciplinary hearing, and then said, in the simplest terms, “This report represents my decision.”

[139]In one sense, this was unclear. The report had made a number of recommendations (193), including that the claimant be dismissed without notice. However, it went on to say that it was a matter for the employer to decide whether they wish to accept any or all of the recommendations. As a result, it would have been much clearer if Mr Ross had explained that he was accepting those recommendations in full (as he did before us) in the letter of dismissal.

[140]We have concluded that Mr Ross’s letter is sufficient to set out the basis of the decision to dismiss the claimant. We have had the benefit of Mr Ross’s explanation before us that he did accept the recommendations, having read the report, and that he accepted that it was his decision to dismiss the claimant

[141]On that basis, we have found that the reason for the claimant’s dismissal was that of conduct, which is a potentially fair reason under the Employment Rights Act 1996 (ERA).

[142]The conduct of which he was found to be guilty was set out at 1 93:• “that on 21 st September 201 7 at 19. 18pm and 20. 42pm, CL tampered with CCTV recordings, despite there being no requirement to do so, and no requirement to be on the premises at that time.

• that on 21st September 2017 at 17.27pm and 18.30pm, you processed two transaction agreements yourself, as renewals for the same person

• that on 28 th September 2017 you allegedly failed to seek authorisation from the owners of Cashing Inn before making the decision not to open the shop

• that on 26 th September 2017, you allegedly failed to seek authorisation from the owners of Cashing Inn, before making the decision to close the shop earlier than the business hours state.”

[143]The issues ask if this was a fair reason. In our judgment, this is slightly vague, particularly when followed by the same question in reference to section 98(4) of ERA. Accordingly, we consider that the appropriate way to determine both of these questions is to follow the approach taken in Burchell.

[144]Firstly, having determined that the reason for dismissal was conduct, we then considered whether the respondent had a genuine belief that the claimant had been guilty of the allegations found, and therefore of gross misconduct. Having heard the evidence of Mr Ross, we were of the view that he did have such a genuine belief. It was suggested that the real reason for dismissal was that the respondent was unwilling to keep the claimant in employment when facing a lengthy absence from work. We found no basis for this suggestion. The reasons given by Mr Ross were credible and substantial.

[145]Secondly, then, did the respondent have reasonable grounds upon which to have such a genuine belief? It is appropriate to consider each of the allegations which were upheld.

[146]The first allegation upheld was that the claimant tampered with the CCTV system on the evening of 21 September 2021. The respondent obtained a report from the company overseeing the CCTV system for them, and their report confirmed that the system was re-booted twice on that evening. Mr Ross’s understanding was that the claimant had sought to clear the system, but that when he rebooted it, discovered that he had not deleted enough footage, and accordingly had to go back in and repeat the exercise. The claimant’s explanation was, in our judgment, quite inadequate. He maintained that he could not recollect having deleted parts of the system before, and then refused to accept the provenance of the report from Advanced Aerials. He did not, however, address the allegation in a credible and open way, and indeed we found it unsurprising that the respondent did not accept his response. We found his position on this to be evasive.

[147]What the claimant could not explain was why he was in the shop at that hour in the first place. He told the investigation that he may have gone back in to retrieve his mobile phone, but clearly he was in the shop for much longer than would have been required. He gave evidence to us that there were a number of possible explanations for his presence there after hours, but he did not say that any of them were actually the explanation for that evening. In other words, the respondent was entitled to come to the view that the claimant had no explanation for his attendance at the shop after hours on 21 September, and were entitled, further, to reach the conclusion that he had deleted the CCTV footage for that period.

[148]The respondent had reasonable grounds not only to find that the claimant had tampered with the CCTV footage, but also that this amounted to an act of misconduct as it demonstrated his desire to conceal his activities on that evening from the respondent.

[149]The second allegation upheld was that on the same evening he processed two transaction agreements himself. In support of this was the email from Kathryn Edge, from the company which provided the system, confirming that the two transactions were processed at those times as renewals for the same person.

[150]The claimant essentially declined to address this allegation, insisting that the email from Ms Edge had to be signed. In our judgment, the evidence on this allegation was clear and straightforward. Two renewals had been processed by the same person on that evening; it was known that the claimant was in the shop on that evening, after hours; there was no evidence that anyone else was there and responsible for those transactions; there was no reason why such transactions required to be processed after hours; and in the circumstances, the claimant’s failure to address the allegation fortified the respondent’s belief that he was responsible for processing a transaction which was designed to benefit only himself, and was dishonest. In the Tribunal’s view, it also strengthened the finding that the claimant had a reason for wishing to delete the CCTV footage that evening.

[151]Accordingly, we consider that the respondent had reasonable grounds for their belief that this allegation should be upheld. 1 52. The third and fourth allegations upheld related to the claimant’s early closure of the shop and then failure to open the shop on 26 and 28 September 2017. As the respondent explained, it was not so much that the claimant was unwell and therefore unable to remain at work or attend on the second occasion, but that he had failed to seek authorisation from the owners before doing so. The claimant did not deny this allegation. He accepted that he did not seek to contact the respondent before he took the decision to close the shop.

[153]The question which then arises is whether this amounts to gross misconduct. In our judgment, Mr Ross explained clearly and cogently why it did. There was an arrangement in place whereby if the claimant needed to be absent from the shop he would contact Mr or Mrs Ross to notify them, and they could contact their daughter who would then attend the shop in their absence. The claimant ignored that arrangement. The significance of doing so was that the shop required to close on one day early, and then simply not open on another; and that as a result, customers may miss out on their date for redemption of an item earlier sold to the shop, or may be unable to rely upon the shop in order to sell an item to obtain short term cash, as many of their customers do. In addition, he was very concerned that customers may be anxious that the shop had closed permanently, and that there was no information available to them as to its reopening, particularly in the period following a global pandemic.

[154]In our judgment, given the nature of the business which the respondent operates, they had reasonable grounds upon which to conclude that the claimant’s failure to seek authorisation to close the shop amounted to gross misconduct.

[155]Thirdly, then, did the respondent conduct a reasonable investigation, and follow a fair procedure.

[156]In our judgment the respondent did carry out such investigation as was reasonable in all the circumstances. They obtained technical reports from Advanced Aerials and Kathryn Edge, and scrutinised the footage and the technical information available in their systems. They took statements from the staff who were available and involved, and they instructed an independent HR firm to carry out the investigation and the hearings in this case. 1 57. They were able to place before the claimant the evidence which they had secured, and to offer him a full opportunity to respond to the allegations made. They had an investigatory meeting, a disciplinary hearing and an appeal hearing. They provided the claimant with the evidence being relied upon, and allowed him to be accompanied at each of the hearings.

[158]In our judgment, the respondent acted reasonably in proceeding with each of the hearings. The decision to do so was taken by an independent company acting on their behalf, and given that the claimant both attended at all of the hearings and confirmed his willingness to proceed at each one, they were justified in proceeding at the times when they did. At no stage did the claimant refuse to attend, or produce evidence to suggest that he was incapable of doing so. When he asked for adjustments to be put in place for him, the respondent (as we shall see below) assented to his request. 1 59. The involvement of Ashleigh Hamilton was not a significant issue, in our judgment, notwithstanding the unhappiness of the claimant at her participation once he discovered her relationship with the respondent. She did not take an active role in the hearings, nor did she take any part in the decision-making processes. The hearings were recorded and available for checking against her notes. The respondent is a small business with limited staff, and accordingly, having instructed an independent consultant to conduct the hearings we were not persuaded that it amounted to an unfairness in the procedure to have asked Ms Hamilton to take notes, partly to save money for them.

[160]Finally, then, was dismissal a decision which fell within the range of reasonable responses open to a reasonable employer? We remined ourselves that it is not for us to substitute our own decision for that of the respondent, but to consider what they did at the time and on the basis of the information which they had. The claimant continued throughout to be evasive, in our view, when pressed for his explanation for his actions, and at no stage did he accept that he had done anything wrong. He had acted in such a way as to undermine, fundamentally, the trust and confidence which the respondent required to have in him as their shop manager; and he was still subject to a live final written warning for dishonesty which had been issued to him less than 12 months before the decision to dismiss him, and which was taken into account by Mr Ross in reaching his decision.

[161]In our judgment, the respondent’s decision to dismiss the claimant fell within the range of reasonable responses open to a reasonable employer. The claimant’s actions demonstrated a lack of openness and honesty, which are essential in a shop manager but also in one who had previously been given a written warning about his conduct; and a failure to communicate in such a way as to look after the best interests of the business.

[162]It is therefore our judgment that the claimant’s claim of unfair dismissal must fail, and be dismissed. Discrimination Arising from Disability (section 15, Equality Act 2010)• Was the claimant subject to unfavourable treatment?

• Did the reason for any unfavourable treatment arising in consequence of disability?

• At the applicable time, did the respondent know, or could the respondent have been reasonably expected to know, that the claimant was disabled?

• Was the unfavourable treatment a proportionate means of achieving a legitimate aim?

[163]The finding of the Employment Tribunal (Employment Judge Young) following an earlier Preliminary Hearing was that the claimant was a disabled person from 27 November 2017 until 24 January 2018.

[164]The claimant relies upon two allegations of unfavourable treatment contrary to section 15 of the 2010 Act, namely threats or pressure applied by the respondent to return to work when he was ill, and the decision to proceed with the investigation and disciplinary hearings when he was ill.

[165]Mr Lane submitted that the only threat relied upon by the claimant was that set out at 110, in the text message (which was sent by Mrs Ross, not Mr Ross, to the claimant) on 28 September 2017. The terms of that text message were related to the claimant having “let us down". Mrs Ross said that she hoped there would be no further sickness and that the shop would be open the following day. The remainder of the message suggested how the claimant should attend the shop and take medication to address his illness, and asked him to make an effort to open.

[166]We are not persuaded that the terms of this message amounted to a threat. There is no threat contained within the wording of the message; there are no adverse consequences to be imposed in the event that the claimant did not do what he was being asked to do. In our judgment, this was a rather clumsy and unsympathetic text message to a long-standing employee, but it did not amount to a threatening message, nor did it meet the definition of a detriment to the claimant. It was an attempt to ensure that the shop remained open while the claimant had shut it for a day and part of a day shortly before this.

[167]So far as the decision to proceed to the hearings when the claimant was unwell is concerned, we recognise that the claimant was not at work at that time, and that he was still recovering from surgery for a deeply unpleasant and painful illness.

[168]There are two points which are of importance here, however: firstly, the investigation and the disciplinary (as well as the appeal) hearings were all conducted on behalf of the respondent by an independent consultant instructed by them. Mr Ross himself did not participate, as we understand the evidence, in any decisions about whether or not the hearings should proceed on the dates given. Some adjustments were made when the claimant complained about the hearings, but in our judgment, it was open at any time for the claimant to refuse to attend at any of the hearings, and there is no evidence that he did so. He attended and was clearly able to defend himself against the allegations, which he understood, and while he protested, to some extent, at the start of those hearings that he did not feel well, he did express anxiety about allowing the process to be progressed as soon as possible, and agreed quite straightforwardly to proceed with each hearing. We cannot, therefore, find that the claimant was subjected to a detriment by the hearings proceeding when they did. 1 69. We do note that the allegation is that the decision to investigate was taken after the events of 26 and 27 September, when he closed the shop, and thus at the point when it was known he was unwell. We were slightly uncertain as to whether or not the claimant was seeking to argue that that decision was itself a detriment, but it appeared, from Ms Stein’s submissions, that it was not.

[170]In our judgment, there was therefore no unfavourable treatment meted out to the claimant in these particular respects.

[171]We would, however, consider that the decisions which are criticised were not actions arising in consequence of the claimant’s disability. The respondent wanted the claimant to ensure that the shop remained open or reopened following his unauthorised decision to close it. If the claimant were unable to open the shop himself, he could have contacted the respondent and arrangements could have been made for their daughter to attend. That would have permitted him to stay at home if he remained unwell. As a result, that text message was sent with the desire to ensure that the business remained open and for that reason rather that a reason which arose out of the claimant’s disability.

[172]So far as proceeding with the hearings was concerned, again, we consider that the claimant could have made clear to the respondent that he was not willing to attend any hearing due to illness, but he did not; indeed, he attended all of the meetings and set forth his position at each.

[173]It is therefore our conclusion that the claimant did not suffer any unfavourable treatment under section 15 of the 2010 Act arising in consequence of his disability. 1 74. It is also important to consider whether or not the respondent knew or reasonably ought to have known that the claimant was at that time suffering from a disability. It must be borne in mind that the claimant only became ill on 26 or 27 September. The respondent did not at that time know, nor in our judgment could they reasonably be expected to have known, that the claimant was suffering from a disability within the meaning of the 2010 Act. As Mr Lane submitted, it was the long-term nature of the illness that they did not, and could not, know about when these issues arose. It was clear that the claimant was ill and unfit to attend work, but not that he was so ill, and likely to continue to be so ill, as to meet the statutory definition of disability at the time running up to his dismissal.

[175]Accordingly, it is our judgment that the respondent had neither actual nor constructive knowledge that the claimant was disabled at the time of the events complained of, and therefore these matters cannot amount to unfavourable treatment arising in consequence of his disability.

[176]Since we have not found that the claimant was subjected to unfavourable treatment arising in consequence of his disability, it is not necessary for us to decide whether the respondent acted in such a way as to be the proportionate means of achieving a legitimate aim.

[177]In our judgment, the claimant’s claim under section 15 of the 2010 Act must fail and be dismissed. Failure to Make Reasonable Adjustments (sections 20 and 21 of the 2010 Act)• Did the respondent apply any PCP to the claimant? What was the PCP?

• Did the application of that PCP subject the claimant to disadvantage?

• What adjustments would have been reasonable for the respondent to make to alleviate the disadvantage suffered by the claimant?

• At the applicable time, did the respondent know or could the respondent have been reasonably expected to know that the claimant was a disabled person who was likely to be placed at a substantial disadvantage to persons who are not disabled?

[178]As we understand it, the PCP relied upon by the claimant was the application by the respondent of their disciplinary procedure to him.

[179]Mr Lane suggested that a flawed disciplinary procedure does not amount to a PCP, and referred the Tribunal to Nottingham City Transport Ltd v Harvey

UKEAT/0032/12

, in which the Employment Appeal Tribunal stressed the need for the Tribunal to focus on the wording of the statute, and to note that there must be a provision criterion or practice, out of which any substantial disadvantage must arise. In that case, the claimant did not suggest that the employer made a practice of holding disciplinary hearings in a way that eliminated consideration of mitigation or in a way in which there was no reasonable investigation. Given that fact, the EAT found that there was insufficient evidence to show that the application of the respondent’s disciplinary process in that case (flawed though that may have been) was a PCP. The one-off application of the procedure could not amount to a PCP.

[180]In this case, it is not clear on what basis it is suggested that the application of the respondent’s disciplinary procedure could amount to a PCP. It appears that the claimant considered that the respondent applied their procedure to him in a manner which was flawed and unfair, and that that was so because he was a disabled person. They failed to make reasonable adjustments for him because he was a disabled person, and that therefore amounted to discriminatory treatment, in the claimant’s argument.

[181]The difficulty for us in assessing this is that while it is true that the respondent did apply its disciplinary procedure to the claimant, that fact of itself is not what the claimant is arguing amounted to the PCP. The claimant says that they failed to take account of the claimant’s disability in the way in which the procedure was conducted. On the basis of Harvey, that is simply not enough

[182]As a result, we are unable to conclude that the claimant has proved that the respondent applied to him a PCP which wrought upon him a substantial disadvantage owing to his being a disabled person. There was no evidence to suggest that if the procedure was flawed it was as a result of consistent practice by the respondent.

[183]We did consider, nevertheless, whether the respondent did fail to make reasonable adjustments, and have reached the conclusion that they did not.

[184]The claimant argued that the respondent should have delayed the hearings until he was fit and able to attend. It is not clear to us what substantial disadvantage the claimant suffered as a result of the decisions taken by the respondent to proceed with each of the hearings. The claimant was able to attend; did not object to the hearings proceeding; was able to respond to the allegations to the extent he wished to; and appears not to have suffered any disadvantage, in our view, through the manner in which the process was conducted.

[185]In submissions, the claimant’s representative also suggested that it would have been a reasonable adjustment to have removed Mr Ross's daughter from her role as note-taker. We cannot see the connection between this adjustment and the disability relied upon by the claimant, namely necrotising fasciitis and the consequences thereof (including the depressive illness which arose as a result). The reality is that at the investigatory hearing, the claimant was unaware that the claimant’s daughter was the person taking the notes; and thereafter the only role she took was to transcribe recordings. There is no evidence that the transcriptions were inaccurate or that she had any meaningful impact upon the proceedings. As a result, we are unable to establish any connection between the physical illness suffered by the claimant and the involvement of Ashleigh Hamilton; and are not persuaded that the decision to continue to involve her caused the claimant any disadvantage owing to his depressive illness. We heard that he was uncomfortable but in our judgment the evidence does not lead to a conclusion that he suffered any mental illness as a result, nor that her absence from the process would have prevented any such illness.

[186]The respondent did, as a matter of fact, make a number of adjustments at the claimant's request. For example, at the appeal hearing, the hearing was conducted at a neutral venue, in a private room, with ready access to toilet facilities, on a date agreed by the claimant with his father. All of that was accommodated in order to ensure that the claimant was able to attend, and he did attend.

[187]Accordingly it is our conclusion that the claimant's claim that the respondent failed to make reasonable adjustments fails, and is dismissed. Harassment (section 26 of the 2010 Act)• Was the claimant subject to unwanted conduct that had the purpose or effect of violating his dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment?

[188]In submission, Ms Stein said that the respondent had harassed the claimant by their disregard of his medical and mental state, creating a hostile environment, especially in the course of the appeal hearing.

[189]She argued that the claimant suffered “indignity and embarrassment” in having to attend the appeal hearing; and that the respondent ignored the claimant's repeated references to his medical state.

[190]In our judgment, the evidence does not support the claimant’s contentions in this regard. We considered that the appeal hearing was conducted in a manner designed to allow the claimant to attend, accompanied by his father, and to respond to the allegations made against him. It was our conclusion that the claimant did not wish to comply with the inquiries made of him, and continually declined to answer questions which he was unhappy to be asked. In our judgment, the claimant was able to attend and set forth his position at these hearings, and had no difficulty in doing so, particularly given that the adjustments he requested were put in place. 191 . We found the claimant to be a witness who was prone to exaggerate in order to create a particular impression of the respondent, and, as we have already found, we had cause to doubt the reliability and credibility of his evidence before us. We were not therefore prepared to accept his characterisation of these meetings, and particularly the appeal meeting, as amounting to the creation of an intimidating, hostile, degrading, humiliating or offensive environment. As we have found, the claimant could have decided that he was not prepared to participate in the hearings, and could have obtained medical support of that position, but he decided to proceed. As a result, we are not persuaded that he was subject to harassment on the grounds of disability in the manner he has proposed to us.

[192]Accordingly, the claimant’s claim of harassment on the grounds of disability under section 26 of the 2010 Act is dismissed.

[193]There being no findings in favour of the claimant, we do not require to address the question of remedy, and therefore we do not do so.