Mr C Dolan v Prestwick Aircraft Management Ltd: 4104279/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4104279/2024

Between

Mr C DolanClaimant

Prestwick Aircraft Management LimitedRespondent

Before

Employment Judge S Cowen

Mr J Lawson (instructed by Solicitor) for claimant

Mr E Smith (instructed by Solicitor) for respondent

Date 6 December 2024

JUDGMENT

The Judgment of the Tribunal is that the Claimant was a disabled person within the meaning of s.6 Equality Act 2010 during the period of his employment with the Respondent.

REASONS

[1]This is a claim of disability discrimination. The issue of whether the claimant was a disabled person in terms of section 6 of the Equality Act 2010 (“the Equality Act”) was to be determined as a preliminary issue at this hearing.

[2]The claimant gave evidence on his own behalf. Andrew Hood (the training site lead) gave evidence for the respondent. There were some issues with Mr Hood’s connection to the call, but he gave evidence by telephone connection and I was satisfied that Mr Hood was who he claimed to be and was relevant to the proceedings. A bundle of productions was sent to the Tribunal and all the parties and witnesses had access to it.

Relevant law

[3]Section 6 of the Equality Act provides a definition of “disability” as follows: (1) A person (P) has a disability if: (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

[4]S212(1) of the Equality Act provides that “substantial” means more than minor or trivial.

[5]Schedule 1 of the Equality Act gives further details on the determination of a disability. For example, Schedule 1 para 2(1) provides that the effect of an impairment is long term is it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.

[6]Para (5) provides that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if measures are being taken to correct it and but for that, it would be likely to have that effect.

[7]The Tribunal must take into account Statutory Guidance on the definition of Disability (2011) which stresses that it is important to consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do. This is also confirmed in Aderemi v London and South Eastern Railway Ltd

2013 ICR 391

. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc (Guidance D2 – D7)

Issues

[8]The Respondent did not contest the Claimant’s diagnosis of Dyslexia, but did not concede that it amounted to a disability as defined by s.6 Equality Act 2010. The Tribunal therefore had to consider whether:(i) The claimant’s dyslexia had an adverse effect on his ability to carry out normal day to day activities.

(ii) If so, was that effect substantial (as in more than minor or trivial)?

(iii) If so, was the effect long term?

(iv) If the impairment had ceased to have a substantial adverse effect at the relevant time, was the substantial adverse effect likely to recur? Findings in fact

[9]The Tribunal makes the following findings in fact:9.1 The Respondent carries out heavy maintenance for aircraft operated by Ryanair. It employs 600 people in Prestwick. The Claimant joined the Trainee Aircraft Mechanic course. This is a 16 week course which provides knowledge and application of aircraft mechanics, producing qualified and safe technicians to work on aircraft maintenance. A job is almost guaranteed at the end of the course to those who pass. During the course, students are employed by the Respondent.

9.2 The Claimant was diagnosed whilst in primary school as being dyslexic, when he struggled to read aloud. He had additional support from an English teacher and was allowed to sit his exams with the use of a computer and someone to read to him. He passed some school exams and moved on to Dundee College.

9.3 The Claimant uses a variety of coping mechanisms to assist him, particularly with reading and writing. The Claimant described having no ‘inner voice’ and therefore needs to read aloud in order to absorb reading material. He therefore struggles to read information quickly and process it. He also struggles to tell the time and to follow directions without the help of visual aids such as a map. He relies heavily on this mobile phone to take notes, list reminders of directions, or time. He described talking to himself as a way of guiding himself and maintaining concentration.

9.4 When he attended Dundee College, he was provided with a dyslexia plan and was allowed to speak out when reading.

9.5 The Tribunal was shown a report by Elizabeth Brown, a qualified specialist teacher who holds a Specialist Learning and Dyslexia Assessment Practising Certificate. It was written in 2019 and remains a fair reflection of the Claimant’s problems with his dyslexia. It refers to substantial weakness in cognitive processing, very slow reading and handwriting speed and weak long term memory. It described that the claimant found it difficult to take notes in lectures, to read complex material and to read under time pressure. It also affected his ability to revise as his working memory is less efficient than others.

9.6 The claimant began working for the respondent in September 2023 after a successful application and interview process. The Claimant has a BSC in Aircraft Engineering and has completed AST training as part of his degree, which is specific to aircraft maintenance. He was sent a health questionnaire to complete which asked about a number of conditions, but did not ask whether the applicant had dyslexia. In any event, Mr Hood was not shown this questionnaire and would not have had the relevant information even if the questionnaires were given to him. Mr Hood was not told by HR that the Claimant was dyslexic.

9.7 The training course was split into different sections. The first 2 weeks were an academic foundation; further skills are then taught and two-thirds of the course was about applying the skills and gaining experience. The academic work was carried out in a classroom, 8.30am - 5.30pm each day and each section was examined at the end of the topic. Written notes were provided for each topic. The claimant spoke of reading over the course material repeatedly at home in order to absorb it.

9.8 Assessment of the students was carried out by a multiple choice exam, which was sat in exam conditions in a classroom, with no notes or aids and was invigilated by a member of staff. No-one was allowed to talk or to refer to their mobile phones. Trainees were allowed three attempts to pass the exams which had a 75% pass mark.

9.9 Prior to the first exam the Claimant told Mr Hood that he was nervous as he was dyslexic. The Claimant requested that the exam be printed in red but this was not done for him as it was requested at short notice. Further exams were also not printed in red either. Mr Hood said that the Claimant was offered extra time if he needed it, but never asked for it

9.10 The Claimant sat 6 exams and passed all of them. During the exams he spoke to himself quietly as he read the papers. He needed to resit one exam in order to pass. He also undertook online learning where he had to complete a small test at the end of each section in order to move on. He was able to do the online tests at home, and therefore able to speak aloud and refer to notes. The Claimant was also able to gain pass marks by using the knowledge he had from his degree and AST courses. Where online tests were sat at work, he gained some assistance from others in his class. Some of the exams he sat were ‘open book’ and the Claimant candidly told the Tribunal that he also was given assistance by some of the instructors on the course, during the exam. The Claimant was able to pass all the required tests until approximately week 8 of the course.

9.11 After around week 4 of the course, the Respondent stopped the Claimant from using his phone. This led to a gradual reduction in the coping mechanisms which the Claimant was allowed to use. As the course progressed, without these coping mechanisms, the Claimant found the course more difficult to pass. There were complaints about his behaviour from staff and other trainees.

9.12 At a review meeting, the Claimant told Mr Hood about his coping mechanisms, including talking aloud to himself, but was told this was a problem in the live maintenance environment. Observations on the evidence

[10]Mr Hood gave clear and honest evidence from his perspective as the site lead for training. He believed that as the Claimant had been able to achieve good results in the various tests, his dyslexia was not holding him back. He acknowledged that the report writer Ms Brown would have a greater knowledge and understanding of dyslexia than him.

[11]The Claimant also gave open and honest answers to the questions asked of him. This was particularly clear where he admitted that during some exams, he was able to manipulate the online system, or that collusion between trainees and/or staff occurred.

[12]The Tribunal accepted the Claimant’s evidence on the effect of his dyslexia and in particular that he had struggled with memory, processing, reading and writing since his primary school education. By the time he reached employment with the Respondent he had developed coping mechanisms that allowed his intellect to be shown in standard examinations. These are adjustments which the Claimant was making to his own way of life in order to reduce the impact and intrusion of his dyslexia on his day to day activities. Respondent’s submissions

[13]The Respondent’s submission was essentially that if the Claimant was able to pass the exams during the academic phase of the training, then his dyslexia cannot have had a substantial impact on his day to day activities. He suggested that a dyslexic who is able to succeed in a high functioning job, such as a lawyer or doctor, does not have a disability under s.6 Equality Act 2010.

[14]The Respondent asserted that the course involved a large amount of reading material and online courses and that the Claimant had been able to cope with these and passed the relevant tests, which relied on short and/or long term memory, the ability to concentrate and to analyse and read the questions in his head, under time pressure. They also relied on the fact that the Claimant did not use the extra time available to him and that he managed to pass the exams without the red print.

[15]The Respondent therefore asserted that the Claimant’s dyslexia did not meet the requirement of a ‘substantial’ impairment and therefore did not amount to a disability within the meaning of s.6 Equality Act 2010. Claimant’s submissions

[16]The claimant relied on the diagnosis of dyslexia in 2019 which the Claimant said remained valid at the time of his employment. It was submitted that ‘substantial’ means ‘more than minor or trivial’ and that the Tribunal should assess what the Claimant could not do, or only do with difficulty.

[17]The Claimant also said that the Tribunal should assess the impact of the dyslexia on the Claimant without the measures to treat or correct it, i.e. his coping mechanisms. This meant the difficulty with reading which is a day to day activity, along with lack of speed in writing. The Claimant submitted that just because he passed exams does not mean he is not disabled.

[18]It is accepted by the parties and I find that the evidence supports the fact that the Claimant had dyslexia which is an impairment. Did that impairment have an adverse effect on her ability to carry out normal day-to- day activities?

[19]The effect of that impairment was that it affected the Claimant’s ability to read and process written materials, particularly at speed and in quiet, exam conditions. He also struggled to take notes of lectures and instructions which were given to him.

[20]The Tribunal is satisfied that these are normal day to day activities. Furthermore, the Tribunal also accepted that the Claimant had problems with telling the time and following directions without visual aids. All of these amount to day to day activities which most people do regularly as part of their normal lives. Was that effect substantial?

[21]The seriousness of the effects is the key issue in this case. To consider those, the Tribunal must consider the effect of the dyslexia without any of the coping mechanisms or adjustments that the Claimant put in place. The Respondent’s submissions overlooked this very significant aspect of the test. Given that when the Respondent removed some of the Claimant’s coping mechanisms he was not as capable of keeping up with the course or carrying out the tasks he had been given, it appears to be self evident that the effect of the dyslexia was significant.

[22]The requirement by the Claimant to read aloud to himself or talk to himself to follow directions is not a common position amongst the general population. Without this, the Claimant struggled to absorb the information or follow the instruction.

[23]The claimant’s inability to read ‘internally’ and the slow speed of his reading and writing were more than minor or trivial interruptions of day to day activities such as reading and writing. The Tribunal therefore concluded that the affect of the dyslexia was substantial. Was the substantial adverse effect long term?

[24]The Tribunal then had to consider whether the substantial adverse effect was “long term”. The Claimant was first diagnosed at primary school. This led to assistance being given. A formal report was written in 2019 and stated that the dyslexia was present at that time. This case focuses on the period of the Claimant’s employment from September 2023 to 9 November 2023. The Tribunal was satisfied that the claimant continued to have adverse effects on his reading, writing and memory due to his dyslexia at that time.

[25]In conclusion, the Tribunal considered that the claimant did have a disability and the claim can proceed. Further procedure

[26]The Tribunal will contact the parties separately about further procedure in this claim. For the avoidance of doubt, the findings in fact in this judgment relate only to the issue of disability status. They would not bind a future tribunal dealing with the merits of the claim and considering issues such as knowledge of the respondent.

Issues

[1]The claimant brought complaints of direct disability discrimination, discrimination arising from disability, indirect disability discrimination and failure to comply with the duty to make reasonable adjustments. These were resisted by the respondent. During the hearing the claimant withdrew his complaints of direct disability discrimination, indirect disability discrimination and failure to comply with the duty to make reasonable adjustments. At the time of representatives’ submissions Mr Lawson clarified that the only complaint which the claimant made against the respondent was the complaint of discrimination arising from disability.

[2]At a tribunal hearing on 29 August 2024 the claimant was found to be disabled as defined by section 6 EqA at the time of the events that the claim is about. The claimant’s disability is dyslexia. In the respondent’s submissions at this final hearing, they conceded that they had knowledge of the claimant’s dyslexia from around 21 September 2023, the day before the claimant’s first exam.

[3]The issues to be decided in relation to the complaint of discrimination arising from disability are(i) did the respondent treat the claimant unfavourably by dismissing him;

(ii) did the following things arise in consequence of the claimant’s disability, which the claimant described in evidence as his “coping mechanisms” namely: reading aloud; speaking to himself as he carries out a task; speaking aloud the steps through an activity; often going on his phone and using google to look up information being taught to him as the information being taught to him is being taught too quickly;

(iii) did the respondent dismiss the claimant because of any of these coping mechanisms;

(iv) if so was the treatment a proportionate means of achieving a legitimate aim. The respondent accepted that it had knowledge of the claimant’s disability from around 21 September 2023.

[4]There was a joint file of productions extending to 257 pages. The claimant added an updated schedule of loss and supporting documents on the second day of the hearing. The parties were informed that the tribunal would only read the documents to which we were taken during evidence.

[5]The claimant gave evidence on his own behalf. Mr William Calderwood – Technical Trainer, Mr Jason Boyd – Lead Mechanic, Mr Alan Sharp – Technical Trainer and Mr Andrew Hood – Training Lead gave evidence on behalf of the respondent. Findings in fact

[6]The respondent is a company which carries out aircraft maintenance. They are based in Prestwick and are responsible for the maintenance of Ryanair’s Boeing 737 aircraft based at Prestwick airport.

[7]The claimant was employed by the respondent from 11 September 2023 until 9 November 2023. He was employed in the role of trainee aircraft mechanic. The claimant was part of a cohort of trainees employed by the respondent who were all carrying out a sixteen-week training course. On successful completion of the training course the trainees become MEC3 mechanics. They work on the maintenance of live aircraft. They work with other qualified aircraft mechanics.

[8]The claimant was dismissed during the training course, after around nine weeks of employment.

[9]The claimant has dyslexia. As part of the training course the claimant had to pass various exams. The respondent became aware of the claimant’s dyslexia on around 21 September 2023, the day before the claimant’s first exam. The respondent told the claimant not to worry as the claimant had already completed a course of study at college in Perth where the exams were more difficult. The claimant passed the exam. The claimant passed all the exams he sat during his employment.

[10]The claimant relies on various coping mechanisms due to his dyslexia. These are: reading aloud; speaking to himself as he carries out a task; speaking aloud the steps through an activity; and often going on his phone and using google to look up information being taught to him as the information being taught to him is being taught too quickly.

[11]The claimant had been using some of his coping strategies during the training course. Mr Andrew Hood – Training Lead as the organiser of the training course had been aware of this.

[12]The claimant’s coping mechanisms were discussed at a meeting with him on 1 November 2023. In that meeting Mr Hood and Mr William Calderwood – Technical Trainer, asked the claimant to adapt his coping strategy of speaking to himself as he carries out a task by writing in a notebook instead, and to stop using his phone.

[13]On 1 November 2023 shortly after the meeting with the claimant, Mr Hood sent the claimant an invitation to a performance meeting which was scheduled for 9 November 2023.

[14]During the week beginning 30 October 2023 the claimant and other trainees were assigned to teams. The claimant was in the team led by Mr Jason Boyd – Lead Mechanic. Mr Boyd gave a safety briefing at the beginning of each day before any activity had started. The claimant talked over Mr Boyd during the safety briefing, before any activity had started. Mr Boyd asked the claimant not to do so. The claimant continued to do so. Mr Boyd reported this to Mr Hood.

[15]On 6 November 2023 the claimant was in a training group led by Mr Alan Sharp – Technical Trainer. He was new to the respondent’s organisation. He had a long career in maintenance of aircraft in the Royal Air Force. He was very experienced in aircraft maintenance. He had no axe to grind with the claimant. He hadn’t worked with the claimant before. The group were carrying out practical hand tools tasks. The claimant refused to carry out a task with the hand tools in the way in which Mr Sharp had instructed him, which was in accordance with the instruction manual. The claimant was arguing with Mr Sharp and telling him he knew best. Mr Sharp was really concerned about the claimant’s refusal to follow instructions on 6 November 2023. Mr Sharp reported this to Mr Hood that day.

[16]Mr Hood took the decision to dismiss the claimant. Mr Hood told the claimant he was dismissed at the meeting on 9 November 2023. The claimant asked Mr Hood why he had been dismissed. Mr Hood replied that HR had told him that no reasons needed to be given.

[17]The dismissal letter dated 9 November 2023 stated “We met today to discuss your performance during your probationary period and I explained to you that, unfortunately, you have not reached the standards we require to demonstrate your suitability for the role”. The claimant was dismissed with immediate effect and received a payment in lieu of notice. No other reason was given in the letter for his dismissal.

[18]Mr Hood’s reasons for dismissal of the claimant included that the claimant had demonstrated a refusal to follow aircraft procedures and documentation; a refusal to follow the instructions of experienced trainers; and because the claimant had spoken over instructors during the safety briefing.

[19]Trainee mechanics, including the claimant, and qualified mechanics undertake a safety critical role in the respondent’s organisation. On successful completion of the training course the trainees, including the claimant if he had completed the course, become MEC3 mechanics. They work on the maintenance of live aircraft. They work with other more qualified aircraft mechanics. The claimant in the role of a MEC3 mechanic would have been required to carry out all maintenance tasks legally and safely. He would have been required to follow the instructions of the more qualified aircraft mechanics and in line with the instruction manual which always needed to be followed to the letter. Following instructions from more qualified mechanics is an essential part of both the training and in the MEC3 qualified role.

[20]The aircraft maintained by the respondent’s business carry nearly 300 passengers each. The safety of passengers is a critical aspect of the training and the MEC qualified role. The safety of other colleagues and peers in the workplace and following a safety briefing in the morning before activity started, are essential aspects of the training and the MEC qualified role. Observations on the evidence

[21]This judgment does not seek to address every point upon which we heard evidence. It only deals with the points which are relevant to the issues we must consider, to decide if the claim succeeds or fails. If we have not mentioned a particular point, it does not mean that we have overlooked it. It is simply because it is not relevant to the issues. Any references to page numbers are to the paginated bundle of productions.

[22]The standard of proof is on a balance of probabilities. This means that if we consider that, on the evidence, the occurrence of an event was more likely than not, then we are satisfied that the event in fact occurred. Likewise, if we consider that, on the evidence, an event's occurrence was more likely not to have occurred, then we are satisfied that it did not occur.

[23]We found the respondent’s witnesses overall to be credible and reliable. There were some disputes in the evidence but mostly these did not relate to matters on which we required to make essential findings in fact. The matter on which there was a dispute and on which we required to make a finding in fact, was about the extent to which the claimant was refusing to carry out the instructions of Mr Sharp on the use of the hand tools on 6 November 2023. The claimant’s evidence was that Mr Sharp had not said anything to him about using the hand tools. We preferred the evidence of Mr Sharp. He was new to the respondent’s organisation. He had a long career in maintenance of aircraft in the Royal Air Force. He was very experienced. He had no axe to grind with the claimant. He hadn’t worked with the claimant before. His evidence was that the claimant had refused to use the tools as Mr Sharp instructed and said he knew best. Mr Sharp’s evidence was that he was really concerned about the claimant’s refusal to follow instructions and went that day to speak to Mr Hood about it. Mr Hood’s evidence was that Mr Sharp had spoken to him about his concerns. We accepted on balance that the occurrence of events on 6 November 2023 was as Mr Sharp had described them in his evidence.

[24]We did not regard the fact that we preferred the evidence of the respondent on this matter as tainting the claimant’s overall credibility and reliability about his dyslexia and his coping mechanisms. Relevant law Disability discrimination

Relevant law

[25]Section 15 EqA provides as follows: “15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if—(a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

[26]Section 136 EqA provides as follows: “136 Burden of proof If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.”

[27]Guidance on how section 15 EqA should be applied was given by the EAT in Pnaiser v NHS England

[2016] IRLR 170

, EAT. In that case it was highlighted that ‘arising in consequence of’ could describe a range of causal links and there may be more than one link. It is a question of fact whether something can properly be said to arise in consequence of disability. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment and so amount to an effective reason for or cause of it.

[28]There is no need for the alleged discriminator to know that the ‘something’ that causes the treatment arises in consequence of disability. The requirement for knowledge is of the disability only (City of York Council v Grosset

[2018] ICR 1492

, CA).

[29]The EAT held in Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

that: ‘the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment, then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide, in light of the evidence.’

[30]The burden is on the respondent to prove objective justification. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so (Homer v Chief Constable of West Yorkshire Police

[2012] IRLR 601

[31]The tribunal is required to apply an objective test (Hensman v Ministry of Defence

UKEAT/0067/14

), albeit that it must assess the proportionality of the impugned treatment at the time it takes place. Submissions

[32]Both representatives made oral submissions. We carefully considered their submissions during our deliberations. We have dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching our decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision

[33]For a complaint under section 15 EqA to succeed it must be shown that the claimant was unfavourably treated by reason of ‘something’ arising in connection with his disability. If a valid complaint is provisionally made out, the respondent in question may be able to argue that the treatment is justified by being a proportionate means of achieving a legitimate aim. If it can do so the treatment will not be unlawful.

[34]“Unfavourable treatment” is not defined in EqA but the EHRC Employment Code states at para. 5.7 that it means that a disabled person “must have been put at a disadvantage’.

[35]The act relied upon by the claimant for his discrimination arising from disability complaint is his dismissal on 9 November 2023. We were satisfied that that the claimant’s dismissal is ‘unfavourable treatment’.

[36]The ‘something’ arising in consequence of the claimant’s disability upon which he relies in relation to his dismissal are what he calls his “coping mechanisms”. These are: reading aloud; speaking to himself as he carries out a task; speaking aloud the steps through an activity; and often going on his phone and using google to look up information being taught to him as the information being taught to him is being taught too quickly.

[37]We considered next whether the “something”, namely his coping mechanisms arose in consequence of the claimant’s disability of dyslexia. It was held in Pnaiser that whether something can properly be said to arise in consequence of disability is a question of fact in each case. It is an objective question, unrelated to the subjective thought processes of the respondent, and there is no requirement that the respondent should be aware that the reason for treatment arose in consequence of disability.

[38]We considered each of the coping mechanisms identified by the claimant. His evidence of using these mechanisms due to his dyslexia was set out in the claimant’s impact statement and in his evidence to the tribunal. It was not disputed by the respondent that these arose in consequence of his disability. We were satisfied that each of the coping mechanisms alleged could properly be said to arise in consequence of the claimant’s dyslexia. We had no reason to doubt the claimant’s evidence on this matter.

[39]We next considered whether the respondent dismissed the claimant because of the something arising ie: any of the claimant’s coping mechanisms. We reminded ourselves of the guidance in Pnaiser that the ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence on the unfavourable treatment and so amount to an effective reason for or cause of it. We also reminded ourselves of the guidance in Sheikholeslami. The question whether the respondent treated the claimant unfavourably because of his coping mechanisms involves an examination of Mr Hood’s state of mind (as the person who took the decision to dismiss) to determine what consciously or unconsciously the reason for the dismissal was. If the “something” (any of the coping mechanisms) was a more than trivial part of the reason for the unfavourable treatment, then that part of the test is satisfied.

[40]Mr Hood took the decision to dismiss the claimant. The dismissal letter dated 9 November 2023 states “We met today to discuss your performance during your probationary period and I explained to you that, unfortunately, you have not reached the standards we require to demonstrate your suitability for the role”. The claimant was dismissed with immediate effect and received a payment in lieu of notice. No other reason was given in the letter for his dismissal.

[41]Ms Stewart- Davies submitted that the “something arising” namely the coping mechanisms did not cause the unfavourable treatment of dismissal. She submitted that it was not disputed that the claimant’s coping mechanisms were discussed on 1 November 2023 when it was suggested to him that he could write things down and he was asked to stop using his phone. But, she submitted, the coping mechanisms did not have a significant influence on Mr Hood. She submitted that the test was one of “significant influence”, namely an influence or cause that operates on the mind of a putative discriminator, whether consciously or subconsciously, to a significant extent and so amounts to an effective cause. (Charlesworth v Dransfields Engineering Services Ltd EAT 0197/16). She submitted that the claimant’s actions of interrupting the trainer, arguing back, telling Mr Sharp that he knew best and refusing to follow Mr Sharp’s instructions are not the coping mechanisms relied on by the claimant. Nor, she submitted, does the claimant rely on how he speaks to people as a coping mechanism. The claimant talking over Mr Boyd had taken place before the claimant had been asked to carry out an activity in the hangar and are not attributable to speaking to himself whilst he carries out a task or speaking aloud the steps through an activity. Ms Stewart-Davies submitted that the coping mechanisms were not a significant influence on Mr Hood’s decision to dismiss whether consciously or unconsciously to a significant extent.

[42]We reminded ourselves that the ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence. The dismissal letter was brief in its terms and referred simply to “performance”. The dismissal letter was of no assistance to us in determining this question. There was no other documentation to which we were referred to assist us in determining this question.

[43]In evidence Mr Hood said that his reasons for dismissal of the claimant were that the claimant had demonstrated a refusal to follow aircraft procedures and documentation; a refusal to follow the instructions of experienced trainers; and because the claimant had spoken over instructors during the safety briefing. We accepted that these were some of the reasons why Mr Hood had dismissed the claimant. However, we were also mindful that the claimant had been using some of his coping strategies during the training course and that Mr Hood as the organiser of the training course had been aware of this. The claimant’s evidence which was not disputed by the respondent was that at the meeting on 9 November 2023 the claimant asked Mr Hood for reasons why he had been dismissed. Mr Hood replied that HR had told him that no reasons needed to be given. We found this response to be somewhat unsatisfactory. We were concerned by Mr Hood’s unwillingness to explain to the claimant why he had been dismissed.

[44]We were also mindful that at the meeting on 1 November 2023 Mr Hood and Mr Calderwood had asked the claimant to adapt his coping strategy of speaking to himself as he carries out a task by writing in a notebook instead and to stop using his phone, and that this meeting took place shortly before the invitation to the performance meeting (also sent on 1 November 2023) at which the claimant was dismissed. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant (or more than trivial) influence. The invite to the meeting which resulted in his dismissal was sent on the very same day as the discussion about some of his coping strategies and the request to modify some of his coping strategies. Mr Hood’s dismissal letter shed no light on the reasons for dismissal and nor did he shed any light on the reasons for dismissal when the claimant asked him in the dismissal meeting.

[45]For these reasons we were satisfied, based on the evidence, that the claimant’s coping mechanisms had a significant (or more than trivial) influence on the unfavourable treatment of dismissal.

[46]Next, we considered the fourth part of the test in Pnaiser, namely whether the dismissal of the claimant was a proportionate means of achieving a legitimate aim. The respondent says that their legitimate aim is to ensure that mechanics placed within the business can work safely on aircraft, including working safely with colleagues, and can act in a way that is acceptable towards their peers and superiors. The respondent says that dismissal was a proportionate means of achieving this legitimate aim, given the safety critical nature of the role trainee mechanics and qualified mechanics undertake.

[47]We accepted the evidence of the respondent that on successful completion of the training course the trainees, including the claimant if he had completed the course, become MEC3 mechanics. They work on the maintenance of live aircraft. They work with other more qualified aircraft mechanics. The claimant in the role of a MEC3 mechanic would have been required to carry out all maintenance tasks legally and safely. He would have been required to follow the instructions of the more qualified aircraft mechanics and in line with the instruction manual which always needed to be followed to the letter.

[48]The respondent was concerned that the continued employment of the claimant would impact on his ability to carry out maintenance tasks safely. They were concerned that he may have refused to follow out the instructions of more qualified aircraft mechanics. He had already shown in training that he was not prepared to follow instructions from more qualified mechanics, such as Mr Sharp. This was an essential part of both the training and in the MEC3 qualified role.

[49]The respondent was concerned that the claimant may have continued to talk over trainers and more qualified mechanics first thing in the morning, before the claimant and the team began carrying out an activity. Mr Boyd had reported concerns about the claimant doing so to Mr Hood. Mr Boyd had reported that the claimant had been talking over him first thing in the morning, during the safety briefing, before the claimant and the team began any activity. This happened during the week beginning 30 October 2023 when the claimant and other trainees were assigned to teams to carry out practical hand tool tasks. Mr Boyd reported to Mr Hood that the claimant continued to talk over him throughout the week whilst he was giving the safety briefing at the beginning of the day before any activity had started.

[50]We had regard to the guidance of The Equality and Human Rights Commission’s Code of Practice on Employment (2011) (‘the EHRC Employment Code’) on objective justification. As to proportionality, the Code notes that the measure adopted by the employer does not have to be the only possible way of achieving the legitimate aim, but the treatment will not be proportionate if less discriminatory measures could have been taken to achieve the same objective (see para 4.31). We asked ourselves whether less discriminatory measures could have been taken to achieve the same objective. We concluded that it could not. The alternative to dismissal was to keep the claimant in employment. The respondent had already tried various steps to meet its legitimate aim. They had given him an opportunity to follow the legitimate instructions of the trainer, but the claimant had been resistant to do so. This was demonstrated when the claimant was arguing with Mr Sharp and refused to follow his instructions when using the hand tools in the hangar. Mr Sharp had many years of experience in aircraft maintenance and was a trainer on the course. The respondent had also given the claimant the opportunity not to talk over the safety briefing before activity started in the morning. The claimant had continued to do so. The claimant did not dispute that this had happened but attributed it to his coping mechanisms.

[51]The respondent was very concerned about safety. The maintenance of aircraft was of critical importance. The aircraft carried nearly 300 passengers each. The safety of passengers was paramount. The claimant had already shown that he was unwilling or unable comply with safety instructions from his more experienced colleagues. Following instructions from more experienced colleagues was a critical aspect of the training role and the role if the claimant had progressed to completion of training and working on live aircraft. The safety of other colleagues and peers in the workplace was a critical aspect of the role. They required to follow the safety briefing in the morning before activity started, without the claimant talking over the safety briefing. We were satisfied having carried out our own balancing act (Hardy & Hansons plc v Lax

2005 ICR 1565

, CA) that there was no alternative to dismissal and that that Mr Hood had acted rationally and responsibly in deciding that dismissal was the only option to meet the legitimate aim. We were satisfied that less discriminatory measures could not have been taken by the respondent.

[52]Having concluded that the complaint of discrimination arising from disability is not well- founded, there is no requirement for us to consider remedy. The claimant’s claim is dismissed. J McCluskey