Mr R Smeaton v Taylor Wimpey UK Ltd: 4104200/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4104200/2023

Venue Glasgow

Hearing 10, 11, 15, 16, and 18 January 2024

Between

Mr Ryan SmeatonClaimant

Taylor Wimpey UK LimitedRespondent

Before

Employment Judge S MacLean

Mr T McGrade (instructed by Solicitor) for claimant

Mr S Hughes (instructed by Advocate) for respondent

Ms K Staples (instructed by Solicitor) for respondent

Date 24 December 2024

JUDGMENT

The Judgment of the Employment Tribunal is that:(1) the Tribunal finds and declares that the respondent unlawfully discriminated against the claimant, contrary to section 39 of the Equality Act 2010, and his complaint of discrimination contrary to sections 15, 20 and 21 of the Equality Act 2010 succeed;

(2) the discrimination claims contrary to sections 13 and 26 of the Equality Act 2010 are dismissed; and

(3) the respondent unfairly dismissed the claimant under section 98 of the Employment Rights Act 1996.

REASONS

Introduction

[1]The respondent employed the claimant as a management trainee from 17 September 2018 until 21 March 2023. In the claim form, the claimant claims disability discrimination under sections 13, 15, 20, 21 and 26 of the Equality Act 2010 (the EqA) and unfair dismissal under section 98 of the Employment Rights Act 1996 (the ERA). The respondent resisted the claims and raised preliminary issues of time and disability status, which were reserved for the in-person hearing to consider liability.

[2]Evidence in chief was given by witness statements. Witnesses were crossexamined and re-examined in the usual way.

[3]The claimant gave evidence. Marlene Smeaton, his mother and Fraser Woods, assistant design and planning executive gave evidence on his behalf. For the respondent, the Tribunal heard evidence from Graeme Oswald, technical design and planning manager, Marc Nelson, design and planning executive, Colin Blair, formerly technical director for West Scotland business unit, Martin Findlay, technical director for West Scotland business unit and Gavin Hamilton, managing director for East Scotland business unit. Mr Nelson gave his evidence remotely by cloud video platform.

[4]The list of issues prepared by the representatives, was refined to take account of the evidence and submissions. The agreed termination date was 21 March 2023. The respondent no longer insisted that the claims were time barred. At the relevant time, the claimant is a person with a disability, under section 6 of the EqA, owing to the diagnosis of Pompe disease. The claimant no longer sought to rely upon his psychological health problems as constituting a separate disability. The claimant also did not insist upon the section 13 (direct discrimination) claim and section 26 (harassment) claim.

[5]The Tribunal has set out facts as found that are essential to the Tribunal’s reasons or to an understanding of important parts of the evidence. The Tribunal considered the submissions during its deliberations and has dealt with the points made in submissions and the remaining issues whilst setting out the facts, law and the application of the law to those facts. Findings in fact

[6]The respondent is a FTSE 100 company carrying on business as a housebuilder in the UK. The respondent organises its business into business units on a geographical basis. In 2022 the respondent had an operating profit of more than £900 million.

[7]The respondent employed the claimant as a management trainee in the West Scotland business unit between 17 September 2018 and 21 March 2023. He was initially employed on a four-year fixed term training contract between 17 September 2018 and 16 September 2022, which was extended until 16 March 2023 by letter dated 22 February 2022 (the contract).

[8]In the first two years the claimant was to complete an NC in architectural technology. He was then to complete an HNC in architectural technology during the second two years. The claimant was allowed to attend college one day per week to obtain these qualifications.

[9]Fraser Woods, assistant design and planning executive, was a management trainee from September 2014. He was kept on as a trainee at the end of four years to allow him to meet all of the objectives. Mr Woods was not given an end date to his training contract; it was a running review. During the extension he remained on a trainee salary.

[10]Marc Nelson, design and planning executive, was assigned as the claimant’s mentor when his original mentor went on extended sick leave. Mr Nelson joined the respondent in January 2011 as a technical management trainee. He secured a role as assistant design and planning executive in July 2016.

[11]The claimant’s line manager was Graeme Oswald, design and planning manager. Mr Oswald reported to the technical director. Colin Blair (Mr Blair) was technical director between October 2019 and August 2022. He was replaced by Martin Findlay on 1 November 2022. The technical director reports to managing director for West Scotland business unit, David Blair (Mr D Blair).

[12]Until March 2020, the claimant was on track. He worked exclusively in the office and occasionally attended site. The claimant saw Mr Oswald and his colleagues on a daily basis. The claimant enjoyed his job and felt he was thriving. He had a good working relationship with other management trainees and Mr Woods.

[13]The claimant is a person with a disability: Pompe disease, an uncurable metabolic disorder which causes muscle weakness, joint pain and fatigue. He was diagnosed with the condition around March 2020. He found it difficult coming to terms with the diagnosis and dealing with the physical symptoms: loss of energy, dizziness, aching muscles, fatigue and low mood.

[14]The claimant was furloughed during April and May 2020. In June 2020, the claimant and his colleagues started working from home (WFH).

[15]The claimant wanted to maintain work activity. Mr Oswald knew about the claimant’s symptoms. On medical advice, and following discussion with Mr Oswald, it was agreed that from around June 2020 until September 2020 the claimant would work 20 hours per week.

[16]By September 2020, the respondent knew of the claimant’s diagnosis and the possibility of him receiving enzyme replacement therapy (the treatment). The claimant was eager to return to being himself and to working full-time hours. He returned to his normal hours WFH.

[17]From November 2020, the claimant underwent the treatment fortnightly. Initially, the claimant required to attend hospital but then nurses came to his home to administer the treatment which lasted a full day. The claimant felt completely floored between four to seven days after the treatment with flulike symptoms. He felt very sore and was often so tired he could not get out of bed. The following week he would feel better but then have to restart the treatment. The respondent was aware of the claimant’s treatment and its impact on him. The claimant remained WFH.

[18]At home the claimant worked at a low dining room table while sitting on a straight-backed chair, with little support. It was uncomfortable. He had pains in his lower back and down through his legs. He had neck pain leaning forward to see the screen. The claimant knew that it was not good for him. He would then work from his bed, lying back with his laptop on his knees and mouse on his bed. Mr Oswald knew this. He told the claimant that he should not be working if he was unwell.

[19]From around April 2021 most of the claimant’s colleagues worked on a hybrid basis (three days in the office, two WFH). This included returning to sites.

[20]Fortnightly architects’ meetings, attended by various planners and designers took place to allocate work. The claimant participated remotely but found it difficult to engage with colleagues and felt disconnected from work. He was being allocated less challenging work.

[21]In early September 2021, following a medication change that interacted with the treatment, the claimant was admitted to hospital. The claimant was sick absent from 6 September 2021. The claimant’s mental health deteriorated, and he had difficulty with self-motivation. He was reluctant to reach out to colleagues.

[22]The respondent referred the claimant to occupational health (OH). The OH report dated 14 September 2021 (the September 2021 OH report) confirmed that he was temporarily unfit for work. It was recommended that the respondent interview the claimant on his return to work; check he was well enough to resume dutie; update on any changes; and query whether he required additional support.

[23]On 14 September 2021, Mr Blair sought guidance from an HR business partner about the claimant’s disability, his ongoing treatment, and his “worry about his career and position within TW” (Taylor Wimpey). Mr Blair considered that the claimant was probably a year behind with no imminent likelihood of catching up or even starting to progress. He proposed to the HR business partner that the claimant should be supported, “by formally extending his trainee contract (4 years due to expire next August) by another 12 months”.

[24]Having seen the September 2021 OH report, the HR business partner advised that Mr Blair should complete the recommendations; ask the claimant what support or reasonable adjustments he needed to perform his role; and consider a phased return to work. Regarding extending the training period, the HR business partner agreed that it should be extended. Mr Blair was advised that to extend the contract he needed to reissue the contract with a new date.

[25]The claimant remained absent. The claimant spoke to Mr Blair who was aware that the claimant had been working from his bed and was uncomfortable using the dining room table and chair.

[26]By early November 2021, the claimant was keen to return to work on a phased basis. An HR business partner advised Mr Blair to ask OH to review the claimant, advise on a phased return and adjustments to support him. Concern was expressed about the claimant only having had one interface with OH. The OH report was to be discussed with the claimant at his returnto-work interview.

[27]The claimant returned to work on 15 November 2021 on a phased basis. Mr Blair did not discuss with the claimant the extension to the contract. Mr Blair, rather than Mr Oswald, dealt with the claimant’s entitlement to company sick pay.

[28]By December 2021, the claimant wished to return full-time. There was an awkward telephone conversation between Mr Blair and the claimant about his return to work and the payments to which he was entitled. After the conversation the claimant liaised directly with the HR business partner to resolve the matter.

[29]On 23 December 2021, the claimant had an OH assessment. An interim report was issued on 27 December 2021 (the December 2021 OH report). The claimant was assessed fit for full-time work with recommended adjustments/restrictions.

[30]The current adjustment of WFH was appropriate until the COVID-19 risk was deemed to be reduced to a level that was safe for him to return to the office. OH also recommended:a. Time to receive his essential fortnightly treatment.

b. Work stress identification and management meeting in line with HSE recommendations to identify organisational stressors/triggers that may affect his psychological health.

c. An ergonomic DSE workstation assessment be carried out given his domestic working arrangement to mitigate muscular skeletal symptoms he may be experiencing.

d. Review and possibly modify performance targets and absence management to an appropriate level in the context of his disability.

[31]Mr Blair spoke to the claimant on 22 February 2022 about an extension to the contract because it was recognised that the claimant had missed a lot of training. The contact was to be extended by six months until 16 March 2023. This was to reduce stress, allow the claimant to focus on the treatment and progress his training when he was able to do so. Mr Blair confirmed the extension in writing.

[32]The claimant was due to complete his HNC qualification in May 2022. Around February 2022 the claimant was told by the college that he had an extra year to complete the course.

[33]The claimant continued to WFH. He felt it was difficult to learn as he was not able to go on site. He continued to feel anxious and isolated.

[34]In June 2022, the claimant decided to stop the treatment. This was a significant decision given that he had not completed the recommended twoyear programme. The claimant felt that this might allow him to focus on his training as he would need less time to recover from the fatigue he experienced after the treatment.

[35]The claimant was referred to OH for an update on his current health status and for advice on information requested by the respondent. He participated in an OH assessment on 22 July 2022.

[36]A “final” OH report was issued to the respondent (the July 2022 OH report). The claimant was not absent from work. He remained fit for work with recommended adjustments/restrictions.

[37]In addition to the current adjustments, OH recommended:a. A re-referral to an OH physician to consider the need for a permanent WFH role.

b. A DSE assessment for a more supportive chair.

c. A stress risk assessment.

d. Possible modifications to absence management triggers.

e. Attending medical appointment during working hours.

f. A flexible pace of work to reflect variable stamina and concentration.

g. Continued to permit breaks as needed if fatigued.

[38]In response to additional questions, on permanent adjustments, posed by the respondent, OH reiterated the recommendation at paragraph 37a above. In relation to whether five half days or three full days in the office was achievable to support the claimant’s development and training/learning from the team, it was recommended that online training be considered or his permission for a colleague or trainer to visit his home to provide training and support.

[39]On 29 July 2022, Mr Blair invited the claimant to a “formal medical capability meeting” on 9 August 2022 (the August meeting) to discuss the current adjustments and the July 2022 OH report. The claimant was advised of his right to be accompanied. Mr Blair knew that a referral to an OH physician was scheduled for 15 August 2022.

[40]At the August meeting, conducted by Mr Blair, the claimant was accompanied by a trade union representative. An employee relations advisor took notes. Mr Oswald was present to review any conclusion given Mr Blair’s imminent departure from the respondent’s employment.

[41]The discussion focussed on the July 2022 OH report. Mr Blair said that he wanted to review the current WFH requirements on a full-time basis and the impact that this was having on the claimant’s training and development.

[42]The respondent’s view was that the claimant not being able to attend the office or site was detrimental to his development and ability to carry out his job. The claimant felt that it was hard to say what days he could work. Sometimes he could get fatigued quickly. It was intermittent. The claimant said that he had done the work on Teams that he had been asked to do.

[43]Mr Blair considered that the potential adjustment of sending different colleagues/trainers to the claimant’s home each day to provide training was unsustainable in the long term as it would make employees feel uncomfortable. He questioned how the claimant, and his family, would feel about it. The trade union representative asked why work could not continue on Teams. The claimant said he had been working on Teams without a problem. He attended meetings remotely when invited and he was able to do so.

[44]Mr Blair referred to the competency matrix as support that the claimant was not where he should be at this stage in his training and that home working was detrimental. The claimant explained that he had little guidance or support on this issue. It was agreed that the claimant did not have sufficient experience to become a design and planning assistant. Mr Oswald said that a lot of items were technical and required the claimant to be on site to appreciate the scale and seriousness of the tasks. Mr Oswald considered that trainees needed to be fully engaged with the team. The claimant was also questioned about specific tasks that Mr Blair considered the claimant had not carried out. Mr Blair said that the technical roles are hard to carry out remotely and the claimant should consider alternative roles more suited to WFH.

[45]On 15 August 2022, the claimant had an OH assessment. An interim report was issued on 24 August 2022 (the August 2022 OH report). The update recorded that the claimant had stopped taking the treatment. He continued to suffer a lesser degree of fatigue which was mitigated by taking five-minute breaks, and concentration levels had improved. He felt able to attempt a return to work in the office. The claimant felt unsupported by the respondent and referred to the August meeting where he felt disappointed and distressed about the questioning in relation to potential reasonable adjustments.

[46]The August 2022 OH report recommended a review in four weeks to discuss further developments. The recommendations included:a. A workstation assessment in the office and at home.

b. A phased return to work in the office.

c. A work pattern of two non-consecutive days in the office and three nonconsecutive days at home.

d. Allowing flexibility if the claimant felt unwell on a particular day to attend the office.

e. An individual stress risk assessment.

f. Regular meetings with his manager to discuss difficulties and support.

[47]The August 2022 OH report was not available before Mr Blair departed. Mr Oswald contacted Maureen O’Brien, executive secretary to obtain the report which was received by the respondent on 24 August 2022.

[48]Mr Oswald had not anticipated the claimant returning to the office. Although they discussed the August 2022 OH report on 31 August 2022, Mr Oswald did not comment on the reference to the claimant’s distress at the August meeting. Mr Oswald emailed the claimant to confirm that a workstation assessment and stress assessment would be arranged. A phased return to work pattern was agreed which included the claimant’s attendance in the office every Monday and Wednesday. The claimant would complete a work diary which would be completed on a Friday for discussion on the Monday and four weekly review meetings.

[49]In September 2022, the respondent appointed a design and management trainee on a four-year management training contract.

[50]The workplace assessment was arranged on 5 September 2022 and took place on 15 September 2022. A report was received, and the purchase of the recommended equipment was authorised by Mr D Blair. The equipment was installed in the claimant’s house at the end of September 2022.

[51]At the beginning of October 2022, the claimant indicated that he would return to the office. The equipment required to enable the claimant to do so was in place by the end of October 2022. The claimant returned to office working on a phased basis. The equipment helped take the pressure off the claimant’s muscles and alleviated some pain.

[52]On 1 November 2022, Martin Findlay joined the respondent as technical director. He met the claimant on 12 December 2022. The claimant discussed his illness; the contentious decision to stop the treatment; and how this was allowing him to attend the office more often and he felt overall much better. Mr Findlay decided that it would be a fresh start and he would continue to work with the claimant.

[53]The claimant returned to college in December 2022 to complete the graded unit.

[54]Mr Findlay had a positive meeting with the claimant on 21 December 2022. They agreed that the current work pattern should continue. The competency framework was discussed. Mr Findlay said that the claimant was not ready to progress to a design and planning executive role. The focus was to be on development and performance as a trainee. Mr Findlay proposed an informal performance management plan to set short term goals to be actioned in the new year. A meeting was to be arranged to discuss tasks and what was expected of the claimant. Mr Findlay also agreed to arrange the stress risk assessment.

[55]On 12 January 2023, the respondent announced to staff a companywide restructuring change programme as a result of economic downturn. Mr D Blair sent an email to staff in the West Scotland business unit at 11:48 on 12 January 2023 advising that employees who were at risk of redundancy as a result of the proposed changes had been informed and there were no other proposed changes in the business. To mitigate potential redundancies vacant positions were to be removed and the respondent looked “to end temporary contracts where it is appropriate to do so”.

[56]At 12.30pm Mr Findlay made an announcement to staff that should the proposals go ahead it was anticipated that one redundancy would be made from the team: the role of site engineer soils. Mr Findlay had spoken to the affected employee at 9.30am. Consultation was taking place. Seven vacant posts were removed from the business structure. The site engineer soils post was made redundant.

[57]The claimant was on annual leave when the announcement was made. On his return to the office on 18 January 2023, Mr Findlay spoke to him to reassure the claimant that he was not to worry; he was not at risk of redundancy.

[58]On 1 February 2023, Mr Findlay sent the stress risk assessment template to the claimant for completion. They met on 8 February 2023 to conduct the stress risk assessment. Mr Finlay completed the stress risk assessment on 13 February 2023 and sent it to the claimant. The recommendations included regular breaks; weekly catchups with Mr Oswald; utilising the employee assistance programme; reaching out to Mr Findlay if the claimant was unable to speak to Mr Oswald; and for the claimant to reach out to colleagues for further support, if needed.

[59]On 14 February 2023, Mr Oswald carried out the claimant’s performance review. It was a positive meeting. The claimant was progressing and was seen to be improving. Mr Oswald set out five objectives for completion over the next six months: two for completion within three months and three for completion within six months. The objectives relating to the contract were intended to stretch the claimant. The meeting boosted the claimant’s confidence. He left feeling encouraged and motivated.

[60]The claimant received a letter from Mr Findlay dated 14 February 2023, inviting him a meeting to discuss the completion of his management trainee programme which could lead to dismissal (the February meeting). The claimant was confused given his previous discussions with Mr Oswald and Mr Findlay. The claimant spoke to his trade union representative who was shocked; he did not know to what the February meeting related.

[61]Before the February meeting, Mr D Blair told Mr Findlay to terminate the claimant’s employment. The contract was ending and there was no vacancy available. Mr Findlay was provided with a semi-populated document which was to form the basis of the meeting note which was to be completed by a notetaker during the February meeting.

[62]At the February meeting a trade union representative accompanied the claimant. Mr Findlay used the semi-populated document as a script. Mr Findlay summarised the timeline. The claimant said that other trainees had been given a six-month extension because of COVID-19. The notetaker said that this would need to be confirmed. Mr Findlay advised the claimant that he was to be given four weeks’ notice of termination of employment and that his employment therefore ended on 21 March 2023, unless he secured alternative employment with the respondent before then. Mr Findlay advised that there was not a role for the claimant within the business due to redundancies. The trade union representative proposed that the claimant be kept on until he completed his trainee programme. The claimant had not had the same experience as other due to his health condition. Mr Findlay said that the respondent would pay for the claimant’s college course up to 30 April 2023. The claimant was asked whether he wished to work his notice or be paid in lieu. The claimant said that he wished to work his notice. The claimant was devastated.

[63]Mr Findlay telephoned Mr Oswald on the evening of 21 February 2023 to advise that the claimant had been given notice. Mr Oswald had not been previously consulted. He knew it was not Mr Findlay’s decision. Mr Oswald thought the decision was probably taken by someone at head office.

[64]The claimant attended work the following day. He was speaking in confidence to two colleagues with whom he had a good relationship. When Mr Nelson arrived, they stopped talking. Mr Nelson discussed this with Mr Oswald in a corridor. This conversation was overheard by one of the claimant’s colleagues.

[65]Mr Oswald spoke to the claimant. Mr Oswald was sorry that the contract was not being extended and offered continued support during his notice period. The claimant formed the impression that his situation was common knowledge. He had a panic attack and went home.

[66]The claimant telephoned his GP the following morning for a fit note for a week or two. Mr Findlay telephoned the claimant. The claimant attempted to explain what had happened the previous day. Mr Findlay said that he had not made anyone aware that the claimant’s contract was being terminated. He acknowledged that the claimant was distressed. Mr Findlay decided that the claimant should not work his notice and receive a payment in lieu of notice.

[67]By letter dated 23 February 2023, Mr Findlay confirmed to the claimant that the respondent was unable to extend the contract following his four-year service due to current cost challenges and its impact on the business. The contract was ending on 21 March 2023. The claimant was being paid in lieu of notice. The claimant was advised of his right of appeal.

[68]The claimant appealed the decision. The claimant indicated that he felt the reasons for his dismissal was due to his disability. Gavin Hamilton was appointed to conduct the claimant’s appeal.

[69]The appeal meeting took place on 14 April 2023. A trade union representative accompanied the claimant. Afterwards Mr Hamilton emailed Mr D Blair who confirmed that the claimant’s position was not affected by the change programme but due to the contract expiring and there not being a vacancy available in the technical team.

[70]Mr Hamilton decided not to uphold the claimant’s appeal. He concluded that there was no evidence that the decision to terminate the contract was due to the claimant’s disability. This was confirmed in a letter sent to the claimant on 28 April 2023.

[71]The claimant has been certified as unfit to work since the termination of the contract. He has not returned to college. Observations on witnesses and conflict of evidence

[72]The Tribunal appreciated that during the relevant period the claimant was seriously unwell. While he was not always able to recall specifically when certain discussions took place, his evidence was supported by the information provided during OH assessments.

[73]The Tribunal disagreed with Mr Hughes’ submissions about the claimant’s credibility in raising but then not insisting on the harassment claim. The claimant was legally represented throughout the proceedings. None of the respondent’s witnesses were parties to the proceedings. Given the time limits for presenting claims, it is not unusual for claims to be raised and withdrawn once further information is provided during the proceedings. The same could be said about preliminary issues taken by respondent which were not insisted upon as the evidence progressed.

[74]Other than Mr Blair, the respondent’s witnesses are employed by the respondent. The Tribunal was in no doubt about their allegiance to and belief in the respondent. For example, even though Mr Oswald did not know who decided to terminate the claimant’s employment, he was very confident that “TW” never discriminated.

[75]In the Tribunal’s view there was vertical management where employees followed, without question, the instruction of their line manager/head office. For example, Mr Findlay was told to dismiss the claimant; Mr Oswald was told to contact the claimant’s college; if employees were instructed to visit the claimant’s home for training/supervision they would do so. Each tier of management had its place and responsibilities. For example, Mr Blair and Mr Findlay said that technical directors would not have regular direct contact with management trainees, that was the responsibility of the line manager. The fact that they dealt with the claimant directly was seen as significant. Mr Hamilton only spoke to Mr D Blair because, as a managing director, he was the person with whom Mr Hamilton had contact even though on the face of the documents the decision was taken by Mr Findlay.

[76]The Tribunal considered that Mr Oswald was out of his depth when the claimant returned to work in June 2020. This was not a criticism of Mr Oswald who undoubtedly had many priorities given the ongoing COVID-19 restrictions. Mr Oswald engaged with HR about the claimant’s restricted hours but there was no attempt to involve OH even when it was proposed that the claimant return to full time hours in September 2020. The Tribunal felt that the claimant was out of sight and out of mind until September 2021 when he was sick absent. The Tribunal formed this view because of the minimal engagement and Mr Oswald’s evidence that trainees needed to take the initiative and engage with the team.

[77]The Tribunal felt that Mr Nelson was a partial witness who, despite being the claimant’s mentor, did not appear to have been particularly supportive while the claimant was employed and was noticeably at the centre of the incident on the claimant’s last day at work. Against this background the Tribunal found his evidence about the timing and his continued interest in the claimant’s college work unconvincing.

[78]The claimant’s evidence was that he complained repeatedly to Mr Oswald and Mr Blair about being uncomfortable using the dining room table and chair for work. Mr Oswald was aware that the claimant would work from his bed as this was more comfortable. Mr Oswald told the claimant that if he was unwell he should not be working. The Tribunal did not doubt that the claimant told Mr Oswald about the discomfort he was feeling. The Tribunal’s impression was Mr Oswald did not initially appreciate that the claimant was working from his bed due to not having a suitable workspace, rather than being ill. However, the Tribunal considered that from the December 2021 OH report the respondent knew that the claimant was substantially disadvantaged using the dining table and chair given the muscular skeletal symptoms he may be experiencing.

[79]Mr Blair became directly involved with the claimant in September 2021. The Tribunal accepted that Mr Blair’s direct involvement was unusual and out of his concern for the claimant, who was proposing to return to work full time. Given that Mr Blair was responsible for the technical team and Mr Oswald reported directly to him, the Tribunal considered that it was highly likely that before contacting the HR business partner, Mr Blair would be aware from the previous appraisals that he had signed, and from Mr Oswald, how far the claimant was behind in the training programme. The Tribunal considered that as Mr Blair did not know if there was precedent for an extension, he would have thought carefully what length of extension was required before contacting HR.

[80]The Tribunal considered it strange that Mr Blair made these enquires in September 2021 to take the element of worry away from the claimant, then did not act upon them until February 2022. The relationship between Mr Blair and the claimant became awkward in November/December 2021. The Tribunal’s impression was that Mr Blair considered that he was going above and beyond for the claimant who, he felt, did not appreciate it. The Tribunal was unconvinced that Mr Oswald had any input into the length of the extension. Mr Oswald did not mention it in his evidence. The Tribunal felt that Mr Blair was engaging directly with the claimant and would not feel the need to “consult” with Mr Oswald.

[81]Mr Blair’s evidence was that he could not recall seeing the December 2021 OH report and if he had known a DSE workstation assessment and a stress identification and management meeting had been recommended, he would have arranged for this to be actioned. The claimant said that he discussed the report with Mr Blair. Mr Oswald believed that Mr Blair had provided the report to him. The Tribunal had no doubt that Mr Blair had received the December 2021 OH report but felt that he gave it cursory attention.

[82]The Tribunal considered that from December 2021, Mr Blair’s attention towards the claimant waned. The Tribunal formed this view because Mr Blair delayed reassuring the claimant about the extension; gave little or no consideration to the December 2021 OH report; notwithstanding the lack of progress between September 2021 and February 2022 (due to the claimant’s sick absence) the contract was only extended six months, rather than a year as initially proposed; and Mr Blair had little direct involvement until the August meeting, following which he was leaving the business.

[83]In relation to the extension of the contract, the claimant said that it was related to COVID-19 restrictions, and other trainees were offered an extension although they did not all need it. The Tribunal thought it highly likely that there were discussions within the business about the impact of COVID-19 restrictions on training programmes, particularly as other trainees mentioned this to the claimant, and when the claimant raised this at the February meeting the notetaker from HR needed to confirm the position. However the Tribunal accepted Mr Blair’s evidence that the reason for the extension of the contract was because the claimant had missed a lot of training.

[84]The Tribunal had difficulty understanding the respondent’s procedure for obtaining OH reports. The managing attendance policy was not produced. Under the contract the respondent had the right to require the claimant to undergo medical examination. None of the referrals to OH was produced. The referring manager for all but the August 2022 OH report was Ms O’Brien, executive secretary. Mr Blair was sent copies of the OH reports obtained by Ms O’Brien. It was unclear whether she sent copies to anyone else. Mr Oswald saw all the OH reports but he could not recall how they were cascaded.

[85]From the email correspondence around 23/24 August 2022, Mr D Blair was being copied information about the August 2022 OH report as Mr Blair had left the respondent’s employment. The Tribunal did not know if Mr D Blair read the August 2022 OH report or the extent of Mr D Blair’s involvement, if any, in discussions about the claimant’s return to the office in late 2022. He did approve the purchase of the auxiliary aids.

[86]It was clear that it was not Mr Findlay’s decision to dismiss the claimant; he was told to do so by Mr D Blair. Mr Oswald’s gut feeling was that the decision was taken by someone above Mr D Blair: “head office”. Mr Hamiliton contacted Mr D Blair at the appeal stage for confirmation that the contract was terminated when it expired, and the claimant’s position was not redundant as part of the Change Programme. While Mr D Blair confirmed that the claimant’s position was not affected by the Change Programme but “due to the expiry of the contract and there being no vacancy within the technical team”, the Tribunal was none the wiser whether this was Mr D Blair’s decision or the decision of someone at “head office”.

[87]Mr D Blair did not give evidence. There was no explanation for this or a request for him to do so. While documents relating to the Change Programme were eventually produced during the hearing, they did not assist the Tribunal. The respondent’s evidence was that the contract ended. While the respondent was looking to “end temporary contracts where it is appropriate to do so” there was no evidence about what, if anything was in the decision maker’s mind about whether the contract was a “temporary contract” given that it had already been extended, and if so, whether it was appropriate to terminate in circumstances where the training had not been completed because of the claimant’s illness and therefore he was not in a position to apply for a position in the design and planning team, even if it had existed.

[88]In relation to the conversation between the claimant and Mr Findlay on 23 February 2023, the claimant’s position was that he wanted to work his notice. He did not ask or agree to receiving a payment in lieu of notice. Mr Findlay’s evidence was that it was his preferred route for the claimant to work his notice and it was the claimant who asked to be paid in lieu. On 21 February 2023 it was agreed that the claimant would work his notice. The Tribunal did not doubt that it would be challenging for him to work his notice, but working was important to the claimant, and he needed support and supervision from colleagues to complete his grading unit. The incident on 22 February 2023 was upsetting for the claimant and no doubt frustrating for Mr Findlay who was dealing with a team who were already unsettled following the Change Programme. The Tribunal considered, given the wording in the termination letter, that it was more likely that Mr Findlay concluded that in the circumstances it was more expedient for the claimant not to return to the office. Discussion and deliberations

[89]The Tribunal referred to the remaining list of issues. Deliberations started with the discrimination claims. Direct discrimination and harassment

[90]Given that the discrimination claims under sections 13 and 26 of the EqA were not insisted upon, the Tribunal dismissed these claims under rule 52 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Failure to comply with reasonable adjustments

[91]The Tribunal referred to section 20 and 21 of the EqA. Employers are required, when the duty is triggered, to make reasonable adjustments to alleviate disadvantages suffered by employees with disabilities. The duty under section 20 comprises three requirements, two of which are relied upon by the claimant: the application of two PCPs and the lack an auxiliary aid causing substantial disadvantage.

[92]The PCPs relied on by the claimant are:a. Those seeking to enhance their skills and experience should do so through direct contact with their colleagues in the working environment (PCP 1).

b. Those coming to the end of their training programmes who had not been able to find alternative employment with the respondent would be dismissed (PCP 2).

[93]The Tribunal referred to the list of remaining issues and considered each PCP in turn, before moving onto consider the lack of an auxiliary aid. Did the respondent apply PCP 1 to the claimant?

[94]Mr Hughes argued that the respondent did not apply PCP 1 to the claimant. He also said that it was the nature of the job, rather than a PCP, which made it desirable for a trainee, in the claimant’s position, to have direct contact with colleagues in the working environment and essential for such a trainee to carryout site visits. The respondent permitted him to work from home for lengthy periods.

[95]PCP is not defined in the EqA. The EHRC Code of Practice in Employment states that the terms should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions.

[96]The Tribunal acknowledged that during the COVID-19 restrictions trainees worked from home. Most returned to hybrid working in April 2021. The claimant was allowed to continue WFH and liaised remotely with senior colleagues. The possibility of permanent WFH was raised in the July 2022 OH report. At the August meeting the respondent made clear that a design and planning trainee needed to go out on site with a more senior colleague to see the key elements of design and planning. The Tribunal considered that this was a practice that denotes how things had and will generally be done. While the claimant was WFH under remote supervision, the items on competency matrix in July 2022 required the claimant having direct contact with colleagues in the working environment, particularly on site. Accordingly the Tribunal concluded that PCP 1 was a practice and it was applied by the respondent to the claimant. Did PCP 1 put the claimant at a substantial disadvantage in comparison with persons who are not disabled?

[97]“Substantial disadvantage” is defined as something that is “more than minor or trivial”. It is important for the Tribunal to identify the nature and extent of any substantial disadvantage suffered by the claimant.

[98]The claimant was unable to attend the office between March 2020 and November 2022. Other management trainees were in a similar position until April 2021, when they returned to work on a hybrid basis. From then they, unlike the claimant, had in person contact with and guidance from senior colleagues. They progressed with their training programmes. While the claimant attended meetings remotely, he had no in person contact with his mentor or other colleagues. He could not attend sites or go through plans with the group “on the table”. He was behind where he should have been on the training programme. The Tribunal considered that PCP 1 did put the claimant at a substantial disadvantage. Did the respondent know or ought it to have known that the claimant was likely to be put at a substantial disadvantage by PCP 1?

[99]The respondent knew of the claimant’s disability from September 2020. The respondent raised with OH in July 2022 whether the claimant could return to the office five half days or three full days for continued support and development, training and learning from the team. The respondent was aware that the claimant was behind in the competency framework. It was difficult for him to reach out for new opportunities and engage with colleagues remotely. The Tribunal concluded that the respondent did know that PCP 1 was likely to put the claimant at a substantial disadvantage. Did the respondent take such steps as were reasonable to avoid that disadvantage?

[100]It was necessary for the Tribunal to identify tangible steps that should have been taken to remove the disadvantage rather than it simply being a failure by an employer to consider making adjustments.

[101]The claimant says that the respondent could have permitted colleagues to attend his home or provide some other means of support or mentoring, to assist the claimant to enhance his skills and experience. This was a recommendation from OH in July 2022.

[102]The Tribunal noted that the OH recommendation was in response to the respondent asking about the claimant’s return to the office in the context of continued support and learning from colleagues. The July 2022 OH report did not suggest that the claimant wanted the recommendation. The Tribunal’s impression from the August meeting was that from the claimant’s perspective he was coping with the work, a lot of which could be conducted on Teams. The claimant attended meetings remotely when invited and when he was able to do so, given how quickly he could become fatigued. The Tribunal did not consider that the claimant wished colleagues to come to his home. Had that been so, the Tribunal considered that, given his interjection, the trade union representative would have explored this, even as a short-term proposal. The Tribunal felt that if the recommendation was in place, it would have put the claimant under pressure to be available when he might otherwise not be fit especially if more than one colleague was visiting. The Tribunal concluded that it was not a reasonable adjustment. Did the respondent apply PCP 2 to the claimant?

[103]The respondent agreed that it applied PCP 2 to the claimant. Did PCP 2 put the claimant at a substantial disadvantage in comparison with persons who are not disabled?

[104]It was undisputed that the claimant had failed to achieve the level of progress that the respondent expected, because of his disability. He lacked the skills and experience that other trainees had acquired, and this would have made it more difficult for him to obtain alternative employment. Accordingly the Tribunal considered that PCP 2 put the claimant at a substantial disadvantage in comparison with people who were not disabled. Did the respondent know or ought it to have known that the claimant was likely to be put at a substantial disadvantage by PCP 2?

[105]Mr Blair had already extended the contract for this reason in February 2022. Accordingly, the Tribunal considered that the respondent knew that the claimant was likely to be put at a substantial disadvantage by PCP 2. Did the respondent take such steps as were reasonable to avoid that disadvantage?

[106]In September 2021, Mr Blair considered that the claimant was a year behind where he ought to be. There was no indication then that there would have been any issue to extending the contract by a year to September 2023. The claimant was absent for two months between September and November 2021. He would therefore have fallen further behind. The claimant had not returned to the office. At the August meeting, the contract had seven months remaining, and the claimant was not where the respondent needed him to be on the training programme. Mr Blair was concerned that if the claimant continued to WFH, he would not be able to complete the training and suggested the claimant seek other opportunities. At the performance review in February 2023 there was no suggestion that the claimant was going to complete the training by mid-March 2023. To the contrary, Mr Oswald’s opinion was that the objectives that he set, which were intended to stretch the claimant, would take at least six months.

[107]The respondent accepted that it would have been a reasonable adjustment to extend the contract by between six and 12 months from March 2023 to enable the claimant to acquire qualifications, experience and skills. Mr Hughes submitted that given the economic situation prevailing in the respondent’s business at the time, it was not reasonable for the respondent to have extended the training programme.

[108]The Tribunal accepted that the respondent faced a challenging trading situation in early 2023, however given the respondent’s operating profit in 2022, the Tribunal did not consider that the cost of extending the claimant’s contract for a few months was too much of a financial cost for the respondent to bear.

[109]The Tribunal agreed with Mr McGrade’s submission that by extending the claimant contract to 31 December 2023 the substantial disadvantage would be removed or at least alleviated. It would have allowed the claimant to achieve the level of progress that the respondent expected on completion of the training by obtaining the skills and experience that other trainee had acquired. This would have enabled the claimant to find alternative employment with the respondent or another employer. Accordingly the Tribunal concluded that the respondent did not take such steps as was reasonable to avoid the disadvantage. Was the claimant placed at a substantial disadvantage because of the absence of an auxiliary aid: workstation equipment?

[110]The Tribunal considered that the December 2021, the July 2022 and the August 2022 OH reports established that the claimant was placed at a substantial disadvantage because of the absence of a workstation equipment. He experienced muscular skeletal symptoms which cause him to work from his bed. Did the respondent take such steps as was reasonable to provide the workstation equipment?

[111]The December 2021 OH report recommended a DSE workstation assessment. The respondent did not make an ergonomic referral until 5 September 2022. Mr Blair’s evidence was that he could not recall seeing the December 2021 OH report and had he known that a workstation assessment had been recommended he would have arranged for this to be actioned. Mr Hughes submitted that the delay was in part due to the claimant’s lack of engagement and reluctance to have persons visit his home.

[112]The Tribunal was unconvinced by this submission. While the claimant had been shielding due to COVID-19, that ended in late 2021. Understandably he would be cautious about the risk of being infected with COVID-19 but having an assessment would not have been intrusive. It would have been of considerable benefit to the claimant mitigating muscular skeletal discomfort. The claimant wanted to work. He took significant decisions about his ongoing treatment in 2022 so that he would be less fatigued afterwards. The Tribunal concluded that the respondent was in breach of its obligation to make reasonable adjustments. Discrimination arising from disability

[113]The Tribunal referred to section 15 of the EqA which provides protection from discrimination arising from disability. The first element of this claim is that the claimant has to have been treated unfavourably. The EHRC Employment Code states that this means that the disabled person must have been put a disadvantage. The threshold required to engage section 15 is relatively low.

[114]The claimant says that he was treated unfavourably by being dismissed and not being permitted to work his notice. The Tribunal consider these in turn. Did the respondent treat the claimant unfavourably?

[115]The claimant says that he was treated unfavourably because he was dismissed. The respondent did not challenged this. The Tribunal considered that dismissal was unfavourable treatment. Was the dismissal because of something arising from his disability.

[116]The Tribunal asked whether the “something” that led to the claimant’s dismissal had a connection to his disability.

[117]The respondent knew, in relation to Pompe disease, that the claimant was a person with a disability. The claimant says that his performance and ability to complete his HNC arose from his disability. The Tribunal asked if this was the reason for his dismissal.

[118]There requires to be a causal connection between the claimant’s dismissal and his performance and ability to complete his HNC. The Tribunal’s difficulty was that it did not know who the decision maker was and what they knew or did not know at the time.

[119]Mr McGrade invited the Tribunal to draw inferences from Mr Oswald’s sense of frustration in spending so much time with the claimant putting reasonable adjustments in place and the remarks at the August meeting about the respondent not being satisfied about the claimant’s progress. The Tribunal considered that neither Mr Oswald nor Mr Blair took the decision to dismiss the claimant. Mr Findlay was supportive of the claimant and helped identify areas of work still to be covered in his training programme. Mr Findlay had no input in the decision to dismiss and appeared unaware in February 2023 of Mr Oswald’s remarks in claimant’s performance review. While Mr Hamilton emailed Mr D Blair, the Tribunal did not know if Mr D Blair made the decision, and other that approving the purchase of the claimant’s workstation equipment, the extent of his knowledge about the claimant’s disability.

[120]Accordingly, the Tribunal was not satisfied that the burden of proof shifted to the respondent and that the dismissal was because of “something” arising from his disability. Did the respondent treat the claimant unfavourably by not allowing him to work his notice?

[121]The claimant says that he was not permitted to work his notice having asked to do so. This was in the Tribunal’s view unfavourable treatment. Was not being permitted to work his notice because of something arising from his disability?

[122]The “something” relied on by the claimant was the deterioration in his health because of his disability. The Tribunal found that Mr Findlay decided to make a payment in lieu of the notice because of the deterioration in the claimant’s health. The Tribunal was satisfied that the claimant was treated unfavourably because of something arising from his disability. Can the respondent show that the treatment was a proportionate means of achieving a legitimate aim?

[123]The respondent said that the claimant was provided with a PILON instead of working his notice in light of struggling with health issues. While the Tribunal could understand the respondent not wanting to place the claimant under further stress, the Tribunal did not consider that deciding to make a PILON for the notice period was a proportionate means of achieving a legitimate aim. The parties had already agreed that it was to both parties’ benefit for the claimant to work during his notice. The claimant’s fit note did not cover the entire period of notice. The respondent could have allowed the claimant to returned to work after his short sick absence. The Tribunal concluded that the respondent had discriminated against the claimant because of something arising from his disability. Unfair dismissal

[124]The Tribunal then turned to the unfair dismissal claim. The claimant relied on regulation 8(1) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 to argue that his contract was no longer a fixed term contract. From Mr Hughes’ submissions the Tribunal understood the respondent to accept say that this was “irrelevant” because there was a dismissal which the respondent must show to be fair.

[125]The Tribunal referred to section 98 of the ERA. The onus of proof is on the respondent to show the reason for dismissal. What was the reason for dismissal?

[126]The respondent initially asserted that the reason was some other substantial reason, and also submitted that the reason was redundancy.

[127]In January 2023, the respondent was implementing the Change Programme. The claimant was told by Mr Findlay in January 2023 that he was not part of that programme and was not at risk of redundancy. This was also confirmed by Mr D Blair in his email to Mr Hamilton following the appeal hearing.

[128]As part of the Change Programme, the respondent was looking “to end temporary contracts where it is appropriate to do so”. The Tribunal’s impression was that the respondent considered that the contract was temporary but appeared to have had no consideration about the effect of the contract exceeding four years. There was no evidence about what factors, if any, were taken into consideration in deciding whether it was appropriate to end the contract.

[129]The Tribunal did not know who took the decision to dismiss the claimant. It might have been Mr D Blair, but his failure to attend the hearing, and the comments made by Mr Oswald about the decision being taken by head office, cast doubt on this. As set out when making observations on the evidence, the Tribunal considered that it had insufficient information about the facts and beliefs known to the decision maker which caused them to dismiss the claimant.

[130]The Tribunal was not satisfied that the respondent had proved the reason for dismissal and that it was a potentially fair one. Was the decision to dismiss reasonable?

[131]In any event the Tribunal considered that even if there was a potentially fair reason, the respondent did not satisfy the reasonableness test under section 98(4) of the ERA.

[132]Mr Findlay who was ostensibly the dismissing offering was told by Mr D Blair to issue the invitation to the meeting on 21 February 2023. HR provided Mr Findlay with a pre-populated script which showed that the claimant was to be dismissed. The decision was pre-determined. While the claimant was offered a right of appeal, the Tribunal felt that this was a tick box exercise.

[133]There was no consultation with the claimant. The Tribunal considered that any reasonable employer would have ensured that the decision maker knew that the claimant was disabled, he fallen behind his training because of his disability and that his line manager had just advised him that it was likely to take at least six months for him to complete the majority of the objectives that had been set, to enable him to satisfactorily complete this training. There would have been discussion about the delay in putting workstation equipment in place; and to what extent the arbitrary extension given in February 2022 accurately reflected the additional time that was needed for the claimant to complete his training. There would also have been discussion about whether the claimant could remain in post even though at that stage there were no vacancies available when his training completed.

[134]The Tribunal concluded that the dismissal was unfair. S MacLean

Introduction

[1]In respect of unlawful discrimination injury to the claimant’s feelings, the Tribunal orders that the respondent pays to the claimant the amount of TWENTY THOUSAND POUNDS (£20,000) for his injured feelings.

[2]In terms of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, it is further ordered that the respondent pay to the claimant the additional sum of FOUR THOUSAND FIVE HUNDRED AND FIFTY POUNDS AND FOURTEEN PENCE (£4,550.14) representing the interest on the injury to feelings award of £20,000 calculated at the appropriate interest rate of eight percent each year for the period between 18 February 2022 and 24 December 2024, being the date of this judgment.

[1]On 13 March 2024, the parties were sent the judgment following a hearing on liability (the liability judgment). The Tribunal found that the complaint of discrimination contrary to sections 15, 20 and 21 of the Equality Act 2010 (EqA) succeeds; and that the respondent unfairly dismissed the claimant under section 98 of the Employment Rights Act 1996.

[2]At this hearing on remedy the claimant gave evidence. Dr Alisdair Kinniburgh, consultant psychiatrist, gave evidence on the claimant’s behalf. David Blair, managing director, west of Scotland business unit, gave evidence for the respondent. Evidence in chief by the claimant and Mr D Blair was given by written witness statement. Dr Kinniburgh spoke to his report dated 18 October 2024. They were cross-examined and re-examined in the usual way.

[3]The parties provided a joint file of documents to which the witnesses were referred. Included in the file was a vocational report prepared by Richard Boardman, dated 17 July 2024 and updated 31 October 2024.

[4]The Tribunal has set out additional facts as found, which should be read with the findings in the liability judgment, which are essential to the Tribunal’s reasons on remedy. The Tribunal considered the submissions during deliberations and has dealt with the points made in submissions whilst setting out the facts, law, and the application of the law to those facts.

[5]The Tribunal has awarded monetary loss and injury to feelings. As proposed by the parties, the Tribunal has issued this judgment for injury to feelings only. The Tribunal had set out its deliberations about the claimant’s monetary loss but has not calculated this as the parties will discuss and, if possible, agree the calculation, failing which the parties will revert to the Tribunal. Additional findings in facts

[1]The claimant had no significant medical or psychological problems before 2020.

[2]By July 2020, the claimant had attained a national certificate (built environment) SCQF, level 6.

[3]By September 2021, the claimant was finding his work situation stressful. His neck was sore leaning forward to look at a screen. He had headaches and muscle pain. The claimant had anxiety and panic attacks. His sleep and appetite were poor. He was diagnosed with depression. The claimant felt isolated. He was upset that the respondent was not particularly interested in helping him.

[4]Had the respondent considered the December 2021 OH report, and provided an ergonomic DSE workstation assessment, the claimant would have been provided with the necessary equipment by around 18 February 2022.

[5]By late 2022, the claimant had undertaken and completed ten subjects as SCGF, level 7 and one subject at level 8. The claimant was at least fivesixths of the way to completing the HNC. Although the claimant had started the graded unit assignment (the 2021 assignment) he knew that he would be unable to complete it in time. The claimant advised the curriculum head of construction and technology about his health issues and requested an extension of time to complete the graded unit. This request was granted.

[6]On returning to college in December 2022, the claimant was given the brief for the graded unit assignment (the 2022 assignment). The brief was different to that for the 2021 assignment, of which the claimant was aware.

[7]The claimant was feeling positive and hopeful of continuing his career with the respondent as planned. Due to illness, a positive COVID-19 test, and annual leave, the claimant missed some college lectures.

[8]The claimant submitted his stage 1, 2022 assignment, which incorporated some of the structure of the 2021 assignment. The lecturer was unaware of the claimant’s disability and the reasons for any absences and the extension.

[9]Around 10 February 2023, the clamant met the lecturer who commented on the claimant’s use of some of the structure from the brief for the 2021 assignment. The lecturer advised that it was not a pass. He spent time with the claimant making suggestions and indicting that once they were incorporated in the 2022 assignment, the claimant would pass stage 1 of the grade unit.

[10]On 21 February 2023, the claimant participated in a photoshoot for the respondent to publicise its “inclusive and diverse” training scheme. In the accompanying article dated 7 March 2023, Mr D Blair referred to the respondent “reaping the benefits of investing in apprenticeship and nurturing the next generation of employees”.

[11]The claimant was in a state when advised on 23 February 2023, that his contract was ending on 21 March 2023, and he was being paid in lieu of notice. He was crying and incredibly sad. The claimant contacted his GP. The claimant was not well enough to attend college on 24 February 2023.

[12]On 24 February 2023, the claimant’s GP signed a fit note advising that the claimant was not fit for work from 23 February 2023 to 22 March 2023 due to work related stress exacerbating Pompe’s disease.

[13]The claimant emailed the fit note to the respondent on 28 February 2023. Had the claimant been permitted to work his notice, he would have sought permission to return to work before 22 March 2023.

[14]At the date of termination, the claimant was 22 years of age. He had four years’ continuous service. His gross weekly pay in February 2023 was £394.28. His net weekly pay was £342.06. He was in receipt of medical insurance. The respondent made a pension contribution based on three percent of salary and paid a bonus in March each year.

[15]From April 2023, the respondent paid its employees an inflationary increase in pay of around four percent each year.

[16]The appeal decision was a severe blow causing the claimant further sadness. The claimant felt that he had sacrificed a great deal trying to keep his job by working whenever he was able and stopping treatment. He felt that he had lost everything. He became suicidal with no interest in anything and barely leaving the house. The claimant was reluctant to try antidepressants given his previous adverse reaction.

[17]The claimant did not return to college, amend his 2022 assignment, or complete stages 2 and 3 of the graded unit.

[18]The claimant ruminates about his employment with the respondent and what could have happened if he did not have a disability or taken treatment. He has difficulty getting to sleep and sometimes wakes up anxious. This results in being tired and demotivated during the day and feeling useless, hopeless and withdrawn.

[19]Until August 2023, the respondent continued to pay employees earning below £30,000 per year a cost-of-living payment of £2,000. Assistant design and planning executives were paid approximately £30,000 per annum.

[20]From 7 September 2023, the claimant received employment support allowance of £259 each fortnight. From 8 September 2023, he received universal credit of £38.59 each fortnight.

[21]In preparation for, and at the liability hearing in January 2024, the claimant felt traumatised revisiting his experiences with the respondent. He was not leaving his room most days and was struggling with panic attacks. His GP prescribed him anti-depressants which did not have any significant adverse reactions. The claimant had developed a progressive illness which has not yet abated. He has had more severe symptoms of depression (moderate and severe) consistently since February 2023, with no periods of recovery. His symptoms are physical (poor sleep, loss of appetite) and psychological (low mood, social withdrawal, anxiety, low self-worth, hopelessness, lack of motivation, suicidal thoughts). He has intrusive memories of traumatic events around the loss of his job. He tries to avoid talking about work and telling people that he lost his job. Despite medication his symptoms have not resolved, or significantly improved.

[22]Mr Wood was promoted to design and planning executive in February 2024.

[23]There have been no new assistant design and planning executive vacancies between February 2023 and October 2024, when four other design and planning trainees were promoted to that role.

[24]The respondent had a scheme that enabled employees to buy the respondent’s property at a discounted rate. This scheme ended in March 2024.

[25]In October 2024, the respondent’s order book, excluding joint ventures stood at £2.2 bn. While there are challenges, the respondent has a robust financial position, and a strong pipeline of land.

[26]The claimant’s physical health and Pompe’s disease have remained stable since he stopped his treatment in 2022. He remains certified unfit to work due his depression becoming more severe and chronic since February 2023 with no periods of recovery despite medication. For this reason, he has been unable to attempt to find alternative employment, despite a desire to do so.

[27]The claimant’s universal credit was increased to £41.13 each fortnight from 24 May 2024. He continues to receive universal benefit and employment support allowance.

[28]The claimant is likely to see signs of improvement in his mental health by September 2025.

[29]Had the claimant’s contract been extended until December 2023, there is a 100 percent chance that he would have continued with the college course and competed it. There was also an 80 percent chance that he would have remained in employment with the respondent being promoted in October 2024. There is an 80 percent chance that the claimant would have remained employed by the respondent after October 2024. Observations on witnesses and conflict of evidence

[30]The Tribunal considered that the claimant gave his evidence in a candid and understated manner. Mr Hughes submitted that inconsistences between the claimant’s witness statements for the liability and remedy hearings, along with the visit to Amsterdam, showed a fundamental lack of credibility. The Tribunal disagreed. The claimant is a young man coming to terms with a significant diagnosis. The medical records reflect how the claimant felt, and what he said to medical professionals. In the Tribunal’s view, the inconsistencies demonstrated that the claimant was on an emotional rollercoaster, and when able, expressed to medical professionals how he was feeling on a particular day.

[31]Mr D Blair’s evidence was at times vague and unconvincing. For example, he referred to there being no new assistant design and planning executive roles between February 2023 and October 2024, but provided no details about the four design and planning trainees who were promoted to assistant design and planning executives. His made no reference to Mr Wood’s promotion to design and planning executive in 2024 until it was raised in cross-examination when he accepted that this had taken place. He said it was a “delayed” promotion but could not recall when he happened. Mr D Blair said that the headcount remained the same.

[32]In relation to the bonus, cost of living payment, salary increases, and the level salary of a newly appointed assistant design and planning executives, Mr D Blair did not provide the detail which might have been expected. The Tribunal therefore accepted the information that was suggested to him during cross-examination.

[33]Other than prepare the report, Dr Kinniburgh had no day-to-day management of the claimant. The Tribunal considered Dr Kinniburgh was a balanced witness who patiently explained and clarified his report. He understood his obligation to assist the Tribunal. Mr McGrade and Mr Hughes put additional information to Dr Kinniburgh, following which the Tribunal felt he carefully reasoned why the conclusions in his report remained unchanged. The Tribunal appreciated that Dr Kinniburgh’s opinion was based on information provided by the claimant. However, Dr Kinniburgh is an expert in psychiatry and trained in analysing patient history, physical presentation and medical records. The Tribunal found his evidence persuasive.

[34]The Tribunal read and accepted the report prepared by Mr Boardman, there being no challenge by Mr Hughes.

[35]The claimant’s evidence at the liability hearing was that he telephoned his GP on 23 February 2023 and got a “sick note”. He could not remember if it was for one week or two. The claimant referred to giving the “sick note” to the respondent but being told that the respondent did not need it as he no longer worked there. The fit note was not produced nor was not put to the claimant that it was for a longer period. In its deliberations after the liability hearing, the Tribunal observed from the evidence that the fit note did not cover the entire period of notice.

[36]At the remedy hearing the fit note was produced (although it was unclear to the Tribunal by whom). The fit note dated 24 February 2023, stated that the claimant was not fit to work between 23 February 2023 and 22 March 2023 but there was no need for an assessment at the end of this period. It also stated that the condition meant that the claimant may not be able to work for that period, but he could go back as soon as he felt better with his employer’s agreement, and this may be before the fit note runs out. Accordingly, the Tribunal considered that its earlier observation that the fit not did not cover the entire notice period was factually incorrect. That said, the Tribunal did not consider that the claimant had tried to mislead it at the liability hearing as he could not recall the detail of the fit note. While at the remedy hearing, Mr Hughes queried the date the fit note was sent to the respondent, the claimant was not challenged, at either hearing, that he sent the fit note to the respondent and the respondent said it was not needed as he no longer worked there.

[37]The fit note was not signed by the GP until 24 February 2023. With the intervening weekend, the Tribunal felt that it was likely that it was emailed to the respondent on 28 February 2023. The Tribunal considered that it was important to the claimant’s self-worth, and to support him completing the graded unit, for him to be able to work with and liaise with colleagues. In the Tribunal’s view had the claimant been permitted to work his notice, and leave with dignity, it is highly likely that he would have sought agreement to return to work before 22 March 2023.

[38]The respondent produced its email exchanges with the college and attendance records, some of which were produced and referred to by Mr Oswald at the liability hearing. The most significant document was an email sent on 11 November 2024 from the claimant’s lecturer. The Tribunal considered that the lecturer’s answers to questions, without context about a student who he had not taught in a year, were of little assistance as they were made in a vacuum, and not subject to any cross examination. The respondent made much of the 2022 assignment being a “cut and paste” of the 2021 assignment. The Tribunal considered that the claimant’s explanation was entirely plausible: it was a different brief from the previous year. While he used the basic structure from the 2021 assignment, it required further work. In February 2023, there was no suggestion that he would not pass stage 1 of the graded unit or complete the remaining stages by the end of the course.

[39]Mr D Blair gave evidence that had he known about the claimant’s level of absences from college, he would have taken disciplinary action which could have resulted in dismissal. The Tribunal was unconvinced and did not accept this evidence. Most absences took place in the academic years 2020/21 and 2021/22 when the claimant was undergoing treatment. The respondent knew that the claimant was extremely unwell for a significant time and extended his contract to March 2023 to allow him to focus on treatment and progress his training when he was able to do so. There was no evidence produced about the process to be followed when trainees are absent from college due to ill health. The Tribunal’s impression was that there was none. Other than the graded unit, the claimant had competed all the subject requirements. It was he, rather than the respondent, who requested an extension of time which was granted. Despite his attendance, he was doing the work and passing exams. The Tribunal did not consider that there was any chance that the claimant would have been dismissed for misconduct because of his absences from college.

[40]The Tribunal also heard evidence about the claimant’s visit to Amsterdam with a friend who subsequently posted videos on TikTok. The Tribunal considered that the claimant’s evidence was plausible. It was likely that the trip to the city was spontaneous, and two immature men would assume that they could enter a museum when it suited them. The Tribunal felt that the claimant’s evidence about the videos further demonstrated his naivety, desire to fit in, and have some normality in his life.

[41]There was undisputed evidence that the claimant did not seek alternative employment. The claimant’s evidence was that this was due to his mental ill health. In cross examination, it was put to the claimant that he was trying to get as much money out of the respondent as possible. The claimant said that was not true. He would rather his employment was not terminated, and he was mentally stable. Compensation meant nothing to him. Only he knew what he was going through, and how he felt. Dr Kinniburgh referred to the progression of the claimant’s depression in his report, which the Tribunal found persuasive. Mr D Blair’s evidence in relation to alternative employment did not assist the Tribunal. If anything, his evidence focussed on the lack of job opportunities in the respondent’s business. As with the Amsterdam trip, the Tribunal considered that all the claimant wanted it some normality in his life. The Tribunal concluded that if the claimant had been well enough to apply for work and attend interviews he would have done so with the support of his family. The Tribunal considered that the reason he had not done so was due to his poor mental health. Discussion and deliberations

[42]The Tribunal’s judgment was that there was unlawful discrimination and that the claimant had been unfairly dismissed. Discrimination

[43]The Tribunal decided to deal firstly with the remedy for discrimination.

[44]The Tribunal referred to section 124 of the EqA. In considering remedy the Tribunal should consider past and future loss of money, and loss for injury to feelings.

[45]In assessing compensation, the Tribunal’s focus was on the loss attributable to the specific acts held to constitute discrimination. The issue to be decided is not what is just and equitable but what figure compensates the claimant for the losses suffered, that flow from the unlawful acts and what is the chance of things happening in the future with the specific parties.

[46]The Tribunal therefore had to identify what the claimant would have received had the unlawful acts not taken place and assess the chance of the event occurring.

[47]Past loss is that suffered by the claimant from the date of the discriminatory acts to the date of the assessment (the date of the judgment) and may include earnings (net of tax) and other benefits associated with employment. Credit must be given for any sums received by the claimant by way of mitigation (actual or by such an amount that as that the claimant could have been expected to take had they taken all reasonable steps to mitigate their loss). Consideration should be given to the possibility that the discriminatory act might not have been the only causative factor – what are the prospects of the claimant remaining in post had there been no unlawful treatment, reducing the compensation by the proportion of chance to reflect the position.

[48]From the submissions, it was agreed that but for the discriminatory act of failing to make the reasonable adjustment of extending the claimant’s contract until 31 December 2023, the claimant would have 40.6 weeks of net loss of pay, pension contributions and bonus, from which would be deducted employment support allowance and universal credit received during that period.

[49]The Tribunal then considered the prospects of the claimant remaining in post beyond 31 December 2023.

[50]The Tribunal first asked about the chances of the claimant completing the graded unit course to obtain the HNC. For the reasons explained above, the Tribunal put little weight on the email received from the claimant’s lecturer which was based on the 2022 assignment and the claimant’s failure to attend class.

[51]The Tribunal’s approach was that the claimant’s past behaviour was indicative of future behaviour. Despite his poor health and undergoing treatment the claimant had progressed with his exams and had started the 2021 assignment. He was unable to completed it and proactively sought an extension of time to do so. The claimant stopped his treatment in mid-2022. He returned to the office on a phased basis in October 2022 and the appropriate workplace equipment was in place. After returning to college, he had a positive meeting in December 2022 with Mr Findlay and was feeling supported. The claimant handed in the 2022 assignment and obtained constructive comments from his lecturer. A risk assessment took place followed by a positive performance review meeting with Mr Oswald. The claimant was progressing and seen to be improving. Five objectives were in place for completion over six months. The claimant was feeling encouraged and motivated.

[52]The claimant’s physical health and Pompe’s disease have remained stable since he stopped his treatment in 2022.

[53]The Tribunal considered that the claimant’s mental health had understandably fluctuated during his employment. However, he was able to work and declined anti-depressant medication because he had poor reaction. It was only following the meeting with Mr Findlay in February 2023 when he was told that his contract was ending and he not to work his notice that the claimant was absent due work-related stress which exacerbated his Pompe’s disease. His mental health further deteriorated following the unsuccessful appeal when the claimant felt that he had lost everything.

[54]Had the claimant been told in February 2023 that his contract was being extended until 31 December 2023, the Tribunal considered that the claimant would have felt back on track and been able to concentrate on completing the graded unit. The Tribunal considered the claimant had the ability to complete the 2022 assignment. With the motivation and support of his lecturer and his colleagues, the Tribunal concluded that there was 100 percent chance that he would have continued with and completed the HNC course.

[55]The Tribunal next asked about the chances of the respondent terminating the claimant’s employment at the end of December 2023. For the reasons set out above, the Tribunal did not accept Mr D Blair’s evidence that the respondent would have dismissed the claimant because of his failure to notify the respondent of all his absences from college.

[56]The Tribunal then considered the chances of the claimant’s contract terminating in December 2023 for any other reason.

[57]Given the Tribunal’s view of the claimant’s chances of completing his HNC by December 2023, the claimant could have sought employment with an alternative employer. The Tribunal thought this was unlikely. The Tribunal considered that all the respondent’s witness were dedicated to, and proud to work for the respondent. That was also the claimant’s position when he joined the respondent. The Tribunal considered that had the claimant’s contract been extended until December 2023, he would have valued the respondent’s support during a traumatic period of his life and would have remained loyal to the respondent.

[58]The Tribunal accepted that in January 2023 the respondent faced challenging trading conditions which resulted in the change programme. Nonetheless, the Tribunal considered in the liability judgment that extending the contract until December 2023 was a reasonable adjustment. By then the respondent had more favourable trading conditions. While promotions were delayed there was no evidence of any further reductions in headcount. Mr Wood’s “delayed” promotion took place in February 2024. His role was not filled immediately. There was no evidence of any trainees completing their training having their contracts terminated. To the contrary, four were promoted to assistant design and planning executives in October 2024. There was no evidence when their training contacts ended.

[59]The Tribunal found that the respondent retained the claimant’s predecessors beyond their four-year training period before appointing them to the role of assistant design and planning executives. From Mr D Blair’s comment in an article published in March 2023, the respondent attracts, retains and promotes trainees to provide talent to future proof the business. The comment was consistent with the respondent’s dealings with the claimant’s contemporaries, other than one who chose to move to another company.

[60]The Tribunal felt that given this ethos, the respondent “investing” and “nurturing” the claimant, the more favourable trading conditions, and the pending “delayed” promotion of Mr Woods in February 2024, there was an 80 percent chance that the claimant would have been retained on his existing salary until October 2024, when he would have been considered for an assistant design and planning assistant role.

[61]It was unclear from Mr D Blair’s witness statement, why four assistant design and planning executive roles became available in October 2024, and if one was backfilling the “vacancy” created by Mr Woods’ promotion. In any event given that the claimant was based in the business unit, and the respondent’s practice to recognise its investment in trainees, the Tribunal considered that there was an 80 percent chance that the claimant would have been promoted to the role of assistant design and planning executive in October 2024, and received the commensurate salary, and bonus.

[62]In calculating the claimant’s loss, any benefits received during this period should be deducted.

[63]The claimant has not attempted to find alternative employment. Mr Hughes submitted that any award should be significantly reduced for this reason. The Tribunal did not agree. For the reasons already explained, the Tribunal put significant weight on Dr Kinniburgh’s report. The Tribunal considered that the claimant’s mental health deteriorated significantly when his contract came to an end. He had a difficult and challenging few years and was turning the corner when the respondent brought his contract to an end and told him that he was not to return to work his notice. The claimant developed a progressive mental illness which became more severe and has not yet abated.

[64]The Tribunal turned to consider future loss of earnings. The Tribunal asked what would have occurred in late 2024 had there been no unlawful discrimination. The Tribunal had to determine what in fact were the chances that dismissal would have occurred in any event even if there had been no discrimination, then in the normal way factor that must be factored into the calculation of loss. This must be by reference to percentage chance rather than to the balance of probabilities.

[65]The Tribunal considered that had the claimant still been employed by the respondent in October 2024 there was an 80 percent chance that he would continue to be so. The evidence was that the respondent has a healthy order book. Trainees tended to stay within the business and bide their time to be offered promotion when it becomes available. The claimant’s predecessors remained employed by the respondent and continue to seek promoted roles within the same business unit.

[66]The Tribunal found that the claimant is likely to see signs of improvement in his mental health by September 2025. While Mr McGrade submitted that the Tribunal should award compensation beyond that date, the Tribunal did not agree. The Tribunal could understand that these proceedings have had a significant impact on the claimant’s recovery and have been a distraction to moving on with his life. To all intents and purposes, these proceedings are reaching a conclusion. While the Tribunal appreciates that the claimant would like to return to the construction industry, and undertake further study, the Tribunal’s impression was that he was overwhelmed thinking about his future, and did not know what he wanted to do. This was an observation, not a not a criticism. The Tribunal felt that the claimant was articulate and capable person who, notwithstanding that he did not complete his training, would be well placed to find employment when his mental health improved. The Tribunal concluded that his future loss should be calculated until the end of August 2025. That loss would include loss of wages, pension benefits and bonus under deduction of benefits.

[67]As regards, the loss of discount for purchase of one of the respondent’s properties, the Tribunal considered that while the claimant may at some time have been interested in this scheme, and discussed with his parents the possibility of purchasing property, the Tribunal considered that there was no evidence of the claimant’s ability to have done so and it could not be presumed that his parents could or would finance it. The Tribunal concluded that there no chance the claimant would have been in a position of purchasing a property by 31 March 2024.

[68]The claimant had been entitled to medical health insurance while employed by the respondent. Had he continued to be employed by the respondent the Tribunal doubted that he would have required the counselling, costing £720, that he has accessed privately from November 2024. The Tribunal considered that had he needed to do so, then this would have been covered by the private medical insurance and he would not have incurred the cost.

[69]Given the discussion with the parties the Tribunal has not calculated the monetary loss. The parties are invited to discuss this and revert to the Tribunal, if necessary, with their calculations which should included any grossing up, if appropriate, and interest.

[70]The Tribunal then considered the impact of the unlawful conduct regarding injury to feelings (i.e. compensation for anger distress and upset caused by the unlawful treatment). This is compensatory (not punitive) with the focus on the actual injury suffered by the claimant. It should be just to both parties.

[71]There are three broad bands of compensation for injury to feelings. The bands in operation at the time the claimant was discriminated against are:a. 6 April 2021 to 5 April 2022 a lower band of £900 to £9,100 (less serious cases); a middle band of £9,100 to £27,400 (cases that do not merit an award in the upper band); and an upper band of £27,400 to £45,600 (the most serious cases),

b. 6 April 2022 to 5 April 2023 a lower band of £900 to £9,900; a middle band of £9,900 to £29,600; and an upper band of £29,600 to £49.300.

[72]The claimant sought an injury to feeling award in the upper quartile of the middle band of Vento of £25,000. The respondent said that this is more likely a lower band case of £8,000.

[73]In the Tribunal’s judgment this is a case that appropriately falls into the middle/upper quartile of the middle band. This was not an isolated or oneoff occurrence. There are two types of discrimination and three findings of disability discrimination. The claimant is a vulnerable young man with a serious illness. The failure to carry out a workplace assessment for nine months had a prolonged effect on the claimant who was shielding and had to work from home. The subjective feelings described by the claimant in his evidence were entirely plausible and credible.

[74]The failure to make a reasonable adjustment to extend his contract meant that the claimant was dismissed. This was a significant blow to him. The Tribunal found the claimant’s account of deciding to stop treatment so that he could attend work, the impact of feeling in early 2023, that he was supported, and plans were in place to get back on track, to then being told that his contract was coming to an end, and he was being dismissed, was credible and reliable.

[75]The claimant had worked for the respondent for four years, despite his illness he remained willing to work. It was a very important part of his life. He stopped treatment as the side effects were impacting his ability to do his job properly. Despite wanting to work his notice, and the respondent initially agreeing to this, it was understandable that the claimant felt very upset that he was told not to return to work in the manner that he was. On one hand the respondent paid for the claimant to complete the college course but then removed the practical and peer support for him to do so.

[76]The claimant had particularly wanted to work for the respondent. He was trying to come to terms with his illness and restore some normality to his life. Working was important to him. Despite explaining his situation at the appeal hearing, the respondent’s response was devasting. The claimant felt that he had lost everything. The claimant’s working life was derailed. His resilience and mental health deteriorated. He has not recovered and there is unlikely to be improvement before September 2025.

[77]Applying a broad brush, the Tribunal assess the overall amount payable to the claimant for injury to feelings as £20,000 and that is the amount the Tribunal orders the respondent to pay to the claimant.

[78]The Tribunal turned to the question of interest. It is empowered to make an award of interest upon any sums awarded pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The rate of interest prescribed by regulation 3(2) is the rate fixed for the time being, currently an amount of eight percent each year in Scotland.

[79]Under regulation 6(1)(a) for an award of injury to feelings the period of the award of interest starts on the date of the act of discrimination complained of and ending on the day on which the Tribunal calculates the amount of interest. The date of calculation is 24 December 2024 being the date of this judgment.

[80]Where the Tribunal considers that a serious injustice would be caused, if interest were to be awarded for the periods in regulation 6(1) and (2), it may, under regulation 6(3), calculate interest for a different period, as it considers appropriate. The Tribunal received no submission to that effect from either party, or it did not consider it appropriate to do so. The Tribunal cannot alter the interest rate of eight percent each year, as that is prescribed by law, and it is a matter in respect of which it has no judicial discretion to vary the interest rate, only the period to which that rate refers.

[81]Accordingly, the appropriate rate of interest is eight percent. The Tribunal orders that the respondent pay to the claimant the additional sum of interest upon the injury to feelings award of £20,000 calculated at the appropriate rate of interest of eight percent for the period between 18 February 2022 (the date when the workplace assessment would have been implemented and a workstation provided) and 24 December 2024 (being the date of this judgment) a period of 1,038 days. The Tribunal’s calculation is £4,550.14 (£20,000 x 0.08 x 1,038/365 days). Unfair dismissal

[82]The Tribunal also found that the dismissal was unfair. The claimant would be entitled to a basic award based on his age, length of service and gross weekly wage. The Tribunal calculated that as £788.56 (0.5 x 4 x £394.28).

[83]As far as the compensatory award is concerned, the Tribunal has made an award for monetary loss for unlawful discrimination. It would however award a loss of statutory rights of £500. S MacLean