Employment Judge L DohertyMr P Ward (instructed by Counsel) for claimantMs J Forrest (instructed by Solicitor) for respondentDate 8 October 2024
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant was a disabled person in terms of Section 6 of the Equality Act 2013 (the EQA) during the relevant period as a result of the impairment of Vertigo.
REASONS
[1]This was a Preliminary Hearing (PH) to consider the issue of the claimant’s disability status under the Equality Act 2013. Mr Ward, Counsel appeared for the claimant and Ms Forrest, solicitor, for the respondents.[2]The claimant gave evidence on his own behalf and produced a bundle of documents.[3]It was agreed that the relevant period for the purposes of reaching a conclusion as to the claimant’s disability status is the period from 17 January to 13 March 2023 (the ‘relevant period’) when disability discrimination is alleged to have taken place.[4]It was confirmed at the outset of the PH that the impairments relied upon by the claimant are as follows:• Type 2 diabetes;• Claustrophobia;• Vertigo;• Depression/mental impairment;• Hypertension; and• Dyslexia. Findings in fact[5]From the evidence before it the Tribunal made the following findings in fact.[6]The claimant, whose date of birth is 23 September 1971, was employed by the respondents as a lecturer in Instrumentation and Electronic Engineering from 2 July 2012, until his dismissal on 13 March 2013. The claimant obtained a degree from Montenegro University, and a PhD from the University of Oxford. Vertigo[7]The claimant suffers from vertigo. He first reported symptoms of dizziness to his GP in May 2014, which was a time of stress and anxiety for him. The claimant was prescribed prochlorperazine maleate tablets for his symptoms, however he did not react well to this medication. Although it stopped the symptoms of vertigo, it made him feel detached from reality and he stopped taking the medication.[8]The claimant had a severe attack of vertigo in October 2014, which resulted in him being hospitalised overnight.[9]The claimant attended ENT dizziness clinics in May 2015. His attacks of vertigo stopped by mid-2015.[10]The claimant experienced a new wave of vertigo attacks in early 2018, when he also experienced tinnitus, stress and anxiety. On 2 March 2018 the claimant attended his GP, who prescribed Betahistine dihydrochloride. The claimant found that this prescribed medication was effective in controlling his symptoms of vertigo.[11]The claimant was diagnosed with high blood pressure on 20 March 2018.[12]The claimant was referred to OH in March and April.[13]The claimant suffered a further attach of vertigo in March 2019, when he was again prescribed Betahistine dihydrochloride.[14]The claimant’s symptoms of vertigo improved and did not manifest themselves again until mid-2020. This was during the Covid lockdown and due to the state of the NHS, the difficulty of getting GP appointments, and following advise generally not to attend for treatment unless it was an emergency, the claimant did not attend his GP. The claimant managed his symptoms by undertaking vestibular exercises.[15]The claimant suffered a further attack of vertigo in early 2022. He felt this was brought on by a number of stressors, primarily his workload, his mother’s diagnosis of cancer, and the Russian Ukrainian war. He did not attend his GP for treatment as there was a long queue for appointments. He did get a GP appointment but it was around 6 weeks after the attack, by which time he was travelling aboard. He managed the attack by vestibular exercises.[16]The claimant’s attacks of vertigo usually last approximately 6 weeks. During that time, he experiences feelings of sickness. He has problems in keeping balance while walking. He also has attacks of claustrophobia and agoraphobia. He cannot drive his car. He cannot travel on the underground as he cannot cope with the confined noisy spaces.[17]Dyslexia[18]The claimant has never had formal diagnosis of dyslexia. He feels there is an element of self-stigma to such a diagnosis which prevented him from seeking a diagnosis. He considers that he has been suffering from symptoms of dyslexia and dyspraxia for all of his life. The claimant considers he is generally disorganised and clumsy. He believes these are symptoms of dyslexia and dyspraxia.[19]The claimant finds difficulty in making notes. He depends on technologies such as voice recording rather than writing things down. He has developed memory skills, and depends upon his memory. The claimant also takes photographs, for example of a whiteboard, which helps him recollect later what was said. When lecturing the claimant sometimes experiences difficulty in finding the appropriate word, even though he knows the word. Depression/mental impairment[20]The claimant experienced mental health issues in his youth. At the age of 15 he contemplated suicide. He also experienced mental health issues when he was around 26/27 years of age when he was doing his military service.[21]Since his youth the claimant has been aware of his sensitivities to outside stimuli, which he considers greater than those experienced by others. He considers himself more easily irritated by people’s behaviour than he believes others would be.[22]The claimant was absent from work for 27 September 22 to 18 October 2022 due to stress. He attended his GP. At that point, the claimant was facing disciplinary proceedings He was feeling overwhelmed at work, and he was experiencing personal stress.[23]The claimant’s absence continued until 19 December 2022. His Fit Notes stated’ stress’ was the reason for his absence.[24]The claimant returned to work on 19 December but did not return to teaching duties as he was undertaking research at that time.[25]The claimant was facing disciplinary proceedings and he was referred to OH by his employer on his return to work in order to assess his fitness for work and to engage in a formal work process.[26]As OH report was produced following a telephone consultation with the claimant dated17 January 2023 which contained the following: “Following receipt of his GP report, I can confirm that Dr Karadaglic was prediabetic in September 2021 but his blood results had significantly declined when checked in September 2022 and he was started on medication for Type 2 Diabetes following this. The GP’s findings and investigation results are in keeping with the employees reported symptoms of polydipsia (extremely thirst), polyuria (urinating frequently) and weight loss as per my last report. It was also noted that he struggled with fatigue and felt more easily agitated. In my opinion these are all factors which may have led to a decline in psychological health including sleep disruption. There have been significant perceived work stress in recent months and personal stress.”[27]The claimant attended his GP in February 2023, and was certified by him as unfit to work due to anxiety and depression in the period from 10 February 2023 to 31 March 2023.The claimant was facing internal disciplinary proceedings at work which he found stressful. He was feeling overwhelmed at work, and he was experiencing personal stress as a result of personal family circumstances and the war in Ukraine.[28]The claimant was prescribed propranolol by his GP for his anxiety and depression. He was referred to counselling and completed a 16 week CBT counselling course, ‘No Hard Feelings’ commencing on 6 March 2023, an completing in July 2023 which he found helpful.[29]The claimant did not continued to take the propranolol prescribed after it was initially as it caused him to be low in energy, and made undertaking physical exercise difficult, which is important to keep his diabetes under control.[30]The claimant suffered symptoms from his stress/ depression from September 2022 . His symptoms improved by March 2023. During the period from September 2022 to March 2023 he suffered from low mood, and tiredness. His sleep was disturbed and he sometimes woke up suffering from anxiety and panic attacks.[31]The claimant was referred to occupational health. A telephone consultation was undertaken, following which a report was produced dated 17 January 2023 which contained the following: “Following receipt of his GP report, I can confirm that Dr Karadaglic was prediabetic in September 2021 but his blood results had significantly declined when checked in September 2022 and he was started on medication for Type 2 Diabetes following this. The GP’s findings and investigation results are in keeping with the employees reported symptoms of polydipsia (extremely thirst), polyuria (urinating frequently) and weight loss as per my last report. It was also noted that he struggled with fatigue and felt more easily agitated. In my opinion these are all factors which may have led to a decline in psychological health including sleep disruption. There have been significant perceived work stress in recent months and personal stress.” Type 2 diabetes[32]The claimant was diagnosed with type 2 diabetes in October 2022, but had been prediabetic from September 2021. The claimant lost 15Kg in this period.[33]The claimant’s condition resulted in him suffering from recurrent infections, such as thrush or urinary tract infection which made him go to the toilet very often.[34]As a result of his condition the claimant is invited for annual diabetic eye screening. The claimant has attended thus screening and no eye damage has been diagnosed.[35]The claimant manages his condition quiet easily through diet and exercise. He avoids sugar. He does aerobic exercise three times per week, which he had also done prior to his diagnosis.[36]The claimant’s sleep is affected by his condition, which causes him to be tired. He has not been prescribed medication for this, but he has consulted his doctor, who told him to try to be more relaxed and to do exercise, which he does. Note on Evidence[37]The claimant’s evidence in chief comprised his disability impact statement, which had been lodged with the tribunal before the hearing.[38]The Tribunal did not form the impression that the claimant in any way sought to mislead , however on some points his evidence was very general and comprised opinion. An example of this is that the claimants evidence about the effect that stress anxiety and depression which he said ..affect his daily life in a number of way. One is that it puts me in low mood, which makes me much less effective at whatever I happen to be doing and also less productive at work. It complicated my relationships with students and colleagues, and most importantly, due to our hormonal ramifications, affects my health through obesity, and causing the dizziness, panic, attacks of vertigo, tinnitus, and worst of all, Diabetes type 2[39]This did not explain how low mood and diminished effectiveness or productivity at work impacted the claimant’s day to day activities; it was the claimants opinion that the hormonal ramifications caused the conditions he identified. There was no medical evidence before the Tribunal about the effect of stress on the claimant to the effect that it caused these conditions.[40]There was one credibility issue arising from the claimant’s evidence, in that it was put to him by Ms Forrest, that he had not experienced attacks of Vertigo in 2021, 2022. This was suggested to him on the basis that he had not consulted his GP on those occasions.[41]The tribunal was satisfied that the claimant had suffered from vertigo on these occasions, as he spoke to in evidence, and as is noted in the findings in fact. In reaching this conclusion the tribunal takes into account the fact that he gave a credible reason for not attending his GP. Submissions[42]Both parties made submissions which are dealt with below where relevant.
Consideration
[43]The claimant has the burden of proof to establish disability status under the Equality act 2010.[44]The EQA at section 6 defines disability: (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.[45]Supplementary provisions on disability status are contained in Schedule 1 to the EQA, and in the Guidance on matters to be taken into account in determining questions relating to the definition of Disability (the Guidance), and the Equality and Human Rights commission Court of Practice and Supplement.[46]Schedule 1 (a) Part 1 to the EQA provides that: “The effect of an impairment is long term if: a) it has lasted for at least 12 months b) it is likely to last for at least 12 months or) it is likely to last for the rest of the life of the person affected”[47]Impairment is to be given its “ordinary and natural meaning…it is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment within the stated effects” (McNicol v Balfour Beatty (2002) IRLR 711 (para 17 and 19), referred to by Ms Forrest.[48]There is no need to establish a medically diagnosed cause for the impairment, but there must be a finding that there is an impairment.[49]In relation to normal day-to-day activities the Guidance provides: “In general, day to day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities.”[50]The Equality Act 2010 (Amendment) Regulations 2023, Regulation 6 adds Schedule 1 of the Equality Act 2010 the following in respect of normal day to day activities: (2) References in the relevant provisions to a person's ability to carry out normal day-to-day activities are to be taken as including references to the person's ability to participate fully and effectively in working life on an equal basis with other workers.[51]Substantial means “more than minor or trivial”.[52]The adverse effect should be assessed having discounted any positive impact which is associated with any treatment regime.[53]The focus should be on what an employee cannot do or can do only with difficulty, and not on what they can easily do.[54]Ms Forrest referred the Tribunal to Ahmed v Metroline Travel Ltd UKEAT/0040/10, (paragraph 49) in support of the proposition that whilst the general focus is on what they cannot do, if that is in dispute, it may be relevant to consider what they can do.[55]The Guidance, at B7, provides that account should be taken of how far a person can reasonably be expected to modify his behaviour, for example through use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day to day activities. The Guidance states that “in some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability.”[56]An impairment will have a long-term effect only if it has lasted for at least 12 months, the period for which it lasts is likely to be 12 months or it is likely to last for the rest of the life of the person affected (paragraph 2(1), Schedule 1). The Guidance clarifies that “likely” means “could well happen”.[57]The Tribunal understands that the claimant’s position is that each of the impairments upon which he relies gives rise to disability status under the EQA. He also relies however on the cumulative effect of the impairments. It was submitted by Mr Ward that the accumulated effects are greater and meet the definition.[58]In considering whether the claimant meets the definition of disability there are 4 questions for tribunal. These are:(1) Does the Claimant have a physical or mental impairment?(2) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?(3) Is that effect substantial?(4) Is that effect long-term?[59]The Tribunal considering each of the impairments relied upon and the effects of those, individually in order to determine whether it gave rise to disability status, and then considered the claimant’s submission as to cumulative effects of those impairments, in determining the question of disability status.[60]The Tribunal firstly considered each of the physical or mental impairment relied upon and the effects of the impairment..[61]Ms Forrest submitted that the claimant could not be permitted to rely upon any impairments other than those noted in the ET1. These were diabetes type 2; claustrophobia; vertigo; depression /and or some mental impairment; hypertension; and dyslexia.[62]No evidence was led about claustrophobia other than in connection with the impact of vertigo. Nor was any s evidence led about the effects of hypertension. These did not comprise one of the headings under which the claimant gave evidence in his impact/ witness statement.[63]There dd not appear to be any dispute between Mr Ward and Ms Forrest that the claimant could only rely on impairments of which notice have not been given. Mr Ward confirmed at the outset of the PH that he was not seeking to rely on any impairments beyond those identified in the ET1. The Tribunal is unable to consider the claims of disability on the basis of impairments stammering, tinnitus, Meiners disease, or dyspraxia all of which are referred to in the Headings of the claimants impact statement. There was no notice that these were to be relied upon as impairments, and the Tribunal did not understand the claimant to be relying upon them as impairments and therefore the Tribunal did not consider them as such, but it did consider the claimant’s evidence on these matters to the extent that it amounted to evidence about the effects of the impairments upon which he did rely.[64]The Tribunal did not accept, as suggested by Ms Forrest, that it could not consider whether stress or anxiety as an impairment, on the basis that the claimant had given notice of impairment or depression/some other mental impairment. It was satisfied that fair notice had been given in the ET1 that the claimant was relying upon a mental impairment.[65]It is agreed that the relevant period for establishing disability status is 17 January to 23 March 2023. Vertigo[66]The Tribunal was satisfied that the claimant suffered from the impairment of Vertigo. The claimant’s evidence on this was supported by his medical records.[67]The Tribunal firstly considered whether at some stage this impairment had a substantial adverse effect on the claimant’s ability to carry out normal day-today activities.[68]The Tribunal accepted that when the claimant had an attack of vertigo he experienced problems in keeping balance while walking, had attacks of claustrophobia and agoraphobia; and that he not could drive his car or travel on the underground as he cannot cope with the confined noisy spaces.[69]The Tribunal was satisfied that walking, driving a car, and travelling by a form of public transport were day to day activities. It was also satisfied that the claimant having problems in keeping his balance while walking, not being able to drive, or travel on the underground amounted to a substantial adverse effect on the ability to carry out these activities[70]The tribunal accepted Ms Forrest’s argument that travelling by bus was a reasonable coping strategy which removed this effect, but only so far as it removed the effect of not travelling by underground. It was not satisfied that it was a reasonable coping strategy which removed the adverse effect of not being able to walk or drive.[71]The Tribunal then considered if the impairment ceased to have such an effect and, if so, when?[72]There is a question here is whether this was a condition which was likely to recur. The Tribunal had regard to paragraph 2(2) (Schedule 1 of the EQA) which provides that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out day-to-day activities, it is to be treated as having that effect if that effect is likely to recur. The Guidance states that the likelihood of recurrence should be considered, taking all the circumstances of the case into account, including what the person could reasonably be expected to do to prevent the recurrence (para C9).[73]The Tribunal also had regard to the EAT in Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540, (referred to by Ms Forrest) in which it was stated that there are four questions that should be asked:• Was there at some stage an impairment which had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities? (para 20)• Did the impairment cease to have such an effect and, if so, when? (para 22)• What was the substantial adverse effect? (para 24)• Is that substantial adverse effect likely to recur? (para 26)[74]The likelihood of the recurrence of a disability must be assessed at the date of the act of discrimination.[75]The Tribunal accepted that the claimant had suffered an attack of vertigo in 2022. This was the last occasion when he had experienced and attack. It accepted that on that occasion the claimant experienced the same symptoms and effect as he had during previous attacks and that included experiencing problems in keeping balance while walking and not being able to drive his car.[76]The Tribunal then considered if that substantial adverse effect likely to recur? (para 26). The tribunal considered what during the relevant period, was the likelihood of the claimant’s condition recurring given what was known at that time.[77]The Tribunal did not have the benefit of expert medical evidence, or even a medical report dealing with this point, however as a matter of fact, it was satisfied that by the relevant period it was known that the claimant had suffered attacks of vertigo in May 2014, October 2014; early 2015; mid-2015, attacks in early 2018, stopping in March 2018; and attacks in early 2020; and 2022.[78]The Tribunal accepted the claimants evidence on the effects of these attacks and was satisfied that the adverse effect of experiencing problems in keeping balance while walking, and the inability to drive occurred on each of those occasions.[79]The Tribunal did not accept Ms Forrest submission that it was questionable if the claimant suffered these adverse effects, on the basis that he did not attend his GP in 2022 2023, and that he stopped taking his prescribed medication. The tribunal found the claimant’s evidence was credible on this matter. It accepted his explanation that he stopped taking the medication because of the side-effects, which he described with some feeling and instead tried to manage his condition by exercise. The tribunal did not draw an inference from the fact that he did not continue to take prescribed medication that he did not suffer from the effects described.[80]Taking into account the number of attacks, and the fact that the claimant had continued to suffer from attacks of vertigo over a 10 year period, and the fact that the attacks resulted in the same adverse effect on the claimant’s abilities to carry out day to day activities on each occasion, the tribunal concluded that during the relevant period it ‘could well happen’ that the effect of the claimant’s impairment would recur.[81]The effect of that conclusion is that the claimant’s condition was to be treated as long-term, and the tribunal was satisfied that the claimant was disabled in terms of the EQA as a result of this impairment of vertigo. Stress, anxiety and depression[82]The Tribunal was satisfied that the claimant had been diagnosed by his GP as suffering from stress, and from anxiety and depression. This is recorded in the fit notes which the claimant submitted to the respondents.[83]On the basis of the evidence the Tribunal concluded that that the claimant was diagnosed with stress in the period from 27September to 19 December 2022 and anxiety and depression from 10 February till 23 March 2023 and that both of these are capable of amounting to mental impairments The tribunal did not accept Ms Forrest submission that it could not be concluded that the claimant did not have an impairment, because the claimant was suffering from situational stress. It not necessary to identify the cause of the impairment, but it is relevant to consider the effects suffered by the claimant in considering it he is disabled as a result of a the mental impairment of stress or anxiety and depression during the relevant period.[84]The Tribunal then considered the what was the an adverse effect on the claimant’s ability to carry out normal day-to-day activities. The claimant’s evidence about this was given in very general terms. He considered that he was more sensitive to outside stimuli that others. He said that he reacted more emotionally and angrily if something wrong happened in his environment. There was however, no evidence as to what this actually meant in terms of his ability to carry out day-to-day activities, and his assessment about his reaction to outside stimuli in comparison with people was subjective.[85]He said that his condition complicated his relationship with students and staff, but it was not explained what this meant in terms of impact on day to day activities.[86]The claimant’s evidence was also that he suffered from low mood and that his sleep was disturbed and he was tired. He said that this made him less productive at work, but there was no explanation of how his low mood or diminished productivity impacted on his ability to carry out activities at work, or day to day activities, and there was no evidence about what activities was affected.[87]Under the Heading Stammering in his witness statement the claimant stated that ‘Throughout my life I have learned to cope with stammering and minimise its impact. Thus, for instance, I avoid saying some words that can trigger stammering. However, sometimes usually when I am under stress and suffering anxiety my stammering gets worse and on occasion can be so bad that I am unable to produce sounds for to ten seconds.’ The claimant however did not give evidence that this was an effect that he experienced in the period from September 2022.[88]The claimant’s evidence about other conditions contained reference to certain times being times of stress or anxiety, but there was no evidence beyond those statement to allow the tribunal to reach a conclusion as to whether or how that that adversely impacted his ability to carry out his to day activities or if it did, or when or for how long he suffered any effects.[89]The Tribunal therefore did not conclude on balance the claimant had established that as a result of a mental impairment there was a substantial adverse effect on his ability to carry out day to day activities, and it did not conclude that the claimant was disabled in terms of the EQA by virtue of the impairment of stress/ anxiety/depression.[90]If the Tribunal is wrong about this, then in any event it that it concluded that the claimant suffered the effects as a result of his mental condition from September 2022 to March 2023; the claimant accepted in cross examination that his health had improved by March 2023. On that basis it could not be said that during the relevant period that his condition has lasted or was likely to last 12 months.[91]The claimant said that he had experienced stress in the past . The first occasion was when he was 15 years of age at school when he contemplated suicide, and again when he was 21 years old and an undergraduate , and lastly when he was 26/27 years old when doing Military service. The claimant is now 51 years old. There was insufficient evidence about the substantial effect of the stress he experienced, and when it cased to have that effect, in particular in that the last episode was 24 years ago, to allow the Tribunal to conclude that there was a substantial adverse effect which was likely to occur, and to conclude that stress was a recurring condition. Dyslexia[92]The claimant has never had a formal diagnosis of dyslexia. That of itself would not prevent the tribunal finding that the claimant had an impairment of dyslexia, on the basis of the substantial adverse effect which it found to exist.[93]The claimant’s evidence on this was that he was disorganised, and generally clumsy which he believes these are symptoms of dyslexia and dyspraxia. There was no medical evidence to support this, and the tribunal could only regard this as opinion. Dyspraxia in not one of the pleaded impairments relied upon.[94]The claimant also said that he finds it difficult to make written notes and ‘writing generally’. It was unexplained what ‘writing generally ‘meant. In this context the claimant said he had received assistance from his legal team in preparing his witness statement.[95]The Tribunal considered that writing is a day-to-day activity, but was not persuaded that the claimant’s evidence to the effect that he finds it difficult to make written notes and difficulty in ‘writing generally’ was a sufficient basis upon which to conclude that he suffered from dyslexia which had an adverse effect on his ability to carry out a day to day activity. There was no evidence about what the difficulty he experienced in ‘writing generally’ actually was. Nor was there any evidence about how his difficulty in making notes impacted any activity. For example there was no evidence about how long it might take him to make written notes or write things down, or in what other way his activities were adversely impacted.[96]The position was similar in relation to the claimant’s having difficulty sometimes in finding the appropriate word when lecturing. There was no evidence about how frequently this occurred , or if , or how it impacted the sense of what he was saying in the lecture, to allow the tribunal to reach a conclusion about how his difficulty in sometimes finding the appropriate word affected his activity of lecturing. The claimant provided an opinion that this difficulty was reflected in student reviews. However, the Tribunal did not have sight of these and there was nothing to suggest that they would have assisted in identifying the impact of the difficulty the claimant experienced .[97]The Tribunal also consider the cumulative effects of the difficulties. The Tribunal’s focus is on what the claimant is not able to do or , however the fact that the claimant had such an impressive academic record and held a job as a lectures for a number of years ,suggested that such affect as there was on the claimants abilities to write, make written notes or not find the right word when lecturing , was not substantial. Type 2 Diabetes[98]There was no dispute that the claimant was diagnosed as having type 2 diabetes from October 2022, and the Tribunal was satisfied that that was properly regarded as an impairment.[99]It then considered whether this impairment had a substantial adverse effect on the claimant’s ability to carry out day-to-day activities.[100]The claimant’s evidence about this was that when non diagnosed he had suffered from recurrent infections, such as thrush or urinary tract infection which made him go to the toilet very often, sometimes at inconvenient moments. He also lost a considerable amount of weight.[101]The claimant no longer suffers those effects. He accepted in cross examination that he manages his condition quite easily through diet by and exercise. In his diet he avoids sugar. He does aerobic exercise three times per week, which he also did prior to his diagnosis.[102]B12 of the Guidance provides that an impairment that is the subject of treatment or correction is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect has to be read alongside paragraph B7 of the Guidance.[103]B7 requires account to be taken of how far a person can reasonably be expected to modify his behaviour to prevent or reduce the effects of an impairment and states that, in some cases, a coping or avoidance strategy might alter the effects of the impairment such that they are no longer substantial and the person would no longer meet the definition of disability.[104]The Tribunal was satisfied that avoiding sugar and continuing to exercise three times a week was a reasonable behavioural modification of the type contemplated in paragraph B7.[105]The claimant’s evidence was that he manages his condition quite easily. There was no evidence to suggest that there was any adverse consequence to the claimant’s health as a result of him not taking medication and in managing his condition in this way.[106]The Tribunal therefore concluded that the claimant managed his condition without medication and simply by adopting reasonable dietary modifications, and continuing with his previous exercise regime, and that theses amounted to reasonable modifications as envisaged by B7 of the Guidance. The question of whether the condition has a substantial adverse effect should be determined after taking those modifications into account.[107]A person who has a progressive condition as a result of which he or she has an impairment that has (or had) some effect on the ability to carry out normal day-to-day activities, but not a substantial effect, will be taken to have an impairment that has a substantial adverse effect if the condition is likely to result in such an impairment ( paragraph 8(1) and (2) Schedule (1) to the EQA).[108]There was no evidence before the tribunal to suggest that the claimant’s diabetes was a progressive or worsening condition, and there was no submission to that effect.[109]The Tribunal accepted the claimant’s evidence that he sleep was affected, although it was unclear if this whether this is as a result of his diabetes.[110]The claimant’s evidence in his impact statement is that: ‘Diabetes type 2 also caused poor sleep, which again has obvious multiple negative effects of both physical and mental health, some of which I already mentioned. Another of course is tiredness and fatigue which in my case started in early 2022, under extreme stress due to overwork, and with the circumstances already said caused me to react to various stimuli in a way which is not natural to me if I did act in a generally unprofessional and wholly unacceptable way, that I suggest it was probably true due to my impairments.’[111]There was no evidence about how his tiredness and fatigue impacted on his ability to carry out day-to-day activities.[112]On the basis of the evidence before it, the Tribunal could not conclude that the claimant’s impairment of diabetes had a substantial adverse effect which was long-term, on his ability to carry out normal day-to-day activities. Cumulative effect of impairments[113]B4 of the Guidance provides that: “A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. For example, a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person’s ability to carry out certain normal day-to-day activities. The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long-term, see Section C.[114]The tribunal did conclude that the claimant was disabled under Section 6 as result of the impairment of Vertigo. In relation to the other impairments relied was it unable to conclude how they substantially adversely impacted the claimants ability to carry out day to day activities, and looking at matters cumulatively did not assist in that regard.[115]Paragraph C2 of the Guidance provides; The cumulative effect of related impairments should be taken into account when determining whether the person has experienced a long-term effect for the purposes of meeting the definition of a disabled person. The substantial adverse effect of an impairment which has developed from, or is likely to develop from, another impairment should be taken into account when determining whether the effect has lasted, or is likely to last at least twelve months, or for the rest of the life of the person affected.[116]There was no medical evidence to support the conclusion that the claimant’s conditions were related to each other. There was no medical report before the Tribunal dealing with this, and although the claimant’s medical records where lodged the Tribunal was not taken to any part of them which supported a link between his conditions. The claimant gave his own view on that matter, for example stating that stress was the main contributor to his diabetes, and that stress on occasion was a trigger for him suffering from vertigo. The Tribunal however was unable to rely upon that is sufficient evidence that his conditions were linked in order to consider the long term effect of cumulative impairments. The Tribunal did however conclude that there was a long term effect as a result of the impairment of Vertigo.
Conclusion
[118]For the reasons given above, the Tribunal was not satisfied that the claimant was disabled under the EQA as a result of dyslexia, diabetes 2, or stress/ anxiety/depression or Hypertension.[119]It was however satisfied that the claimant was disabled under Section 6 of the EQA on the basis of his impairment of vertigo. L Doherty
Relevant law
[120]We were satisfied that Ms Campbell and the panel approached the question of whether trust and been broken down irretrievably with an open mind. Ms Campbell’s evidence was that the panel wanted to understand in particular whether the claimant was able to reflect on his actions and understand the impact of his actions on staff, students and the wider commercial interests of the respondent. Ms Campbell’s focus was on the current situation. Ms Campbell said in evidence that she was looking for some understanding from the claimant that his language and behaviours were extreme and some reassurances that this would change. We were satisfied that Ms Campbell and the panel were looking at whether the relationship could be repaired. Ms Campbell’s evidence was that the panel considered the claimant’s written statement and supporting documents. Ms Campbell’s evidence was that the panel were concerned that there would be a repeat of the language and behaviours towards staff and students. The claimant still did not recognise the impact and distress of his language on staff and students or the wider commercial implications for the respondent of what he had written to the student. The claimant continued to repeat his allegation about the former colleague having “disappeared” in language which the panel considered suggested nefarious means by the respondent. This was despite reassurances from the respondent that the former colleague had resigned.[121]Ms Campbell’s evidence was that the panel considered the claimant’s explanation that his recent type 2 diabetes was mitigation in relation to his behaviours and language. The panel referred to the OH report dated 17 January 2023. The OH doctor was asked how this medical condition could have impacted on the claimant’s physical or mental health. OH were of the view that there was no clinical evidence that the claimant’s behaviours / language was due to his type 2 diabetes.[122]Having considered what was said by the claimant in his written statement and supporting documents, and what was said by Ms Campbell in evidence, we were satisfied that the belief of Ms Campbell and the panel that the relationship had broken down irretrievably was genuinely held. For the same reasons we were also satisfied that the belief of Ms Campbell and the panel, that the relationship had broken down irretrievably was a reasonable one. The claimant had not demonstrated an understanding of the impact of his language and behaviours on others and the respondent could not be confident that it would not happen again. The OH medical evidence did not support that that his language and behaviours were due to his health.[123]We were satisfied that the dismissal fell within the range of reasonable responses open to the respondent. The respondent had engaged with the claimant to understand the claimant’s concerns about the promotion process, to explain the impact of his language on other staff and students and to reassure the claimant about the former colleague having resigned from employment. The claimant has submitted a lengthy written statement and supporting documents and been given ample opportunity to demonstrate to the respondent that he would temper his language and behaviors. He had not done so. We were satisfied that it was reasonable for Ms Campbell and the panel to conclude, from the claimant’s responses, that he was likely to continue with these behaviours and language. Alternatives to dismissal[124]We were satisfied that Ms Campbell and the panel had considered moving the claimant to a different part of the respondent’s organisation as an alternative to dismissal. Ms Campbell addressed this in her evidence. We were satisfied that Ms Campbell and the panel concluded that moving the claimant was not an option. The language which the claimant used was about staff in a number of different senior management roles across the respondent's organisation. It was not limited to the claimant’s line manager. His expertise was such that he could not be moved to one of the two other Schools within the respondent’s organisation. His lack of insight into what he had written to the student meant the respondent had a real concern about putting the claimant back into a teaching environment. The claimant had very limited research work as an alternative to teaching. We were satisfied that the respondent had considered alternatives to dismissal but that these were not viable alternatives. Appeal[125]We were satisfied that the respondent carried out a fair appeal hearing. The claimant and his trade union representative attended the hearing. We were satisfied that the appeal points made by the claimant in writing and at the appeal hearing were considered in full. We were satisfied that it was reasonable for Professor Nelson and the panel to uphold the dismissal decision. Procedure generally[126]In relation to procedure generally, the claimant’s representative submitted that the procedure was not within the band of reasonable responses. He submitted that Ms Campbell had previously received an email from the claimant about his unsuccessful promotion application and was therefore conflicted. We accepted Ms Campbell’s evidence that she had played no part in the decision making about the claimant’s unsuccessful promotion. Accordingly, we did not agree that Ms Campbell was conflicted from being a decision maker in relation to the claimant’s dismissal.[127]The claimant’s representative submitted that the language and behaviours of the claimant were such that the respondent ought to have treated this as a conduct matter. He submitted that the potentially fair reason for dismissal was conduct not some other substantial reason. We did not agree. We were satisfied that the respondent had shown that the reason for dismissal was some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held. The substantial reason was the breakdown in the relationship between the claimant and the respondent, including members of the senior management team. The respondent’s evidence which we accepted was that the language and behaviours were wider than a conduct issue.[128]The claimant’s representative submitted that as the respondent had no written policy for dealing with some other substantial reason dismissals, it had failed to follow a fair process. We did not agree with this. The respondent’s evidence, which we accepted was that it had done it’s best to mirror existing policies within the respondent’s organisation. For example, the claimant had been told in advance of the allegations against him and provided with the documents to be relied on by the respondent, he had been given an opportunity to bring a companion to hearings and he had been given a right of appeal against the dismissal decision. We were satisfied that although the respondent’s had no ‘some other substantial reason’ policy in place this did not render the procedure followed outside the band of reasonable responses open to the respondent.[129]The claimant’s representative submitted that in determining whether the dismissal was fair or unfair having regard to the matters set out in section 98(4)(a) and (b) ERA (including the size and administrative resources of the employer) we should determine that the dismissal was outside the band of reasonable responses. The respondent witnesses had been asked in cross examination to state the annual turnover of the respondent. Different figures had been provided and some witnesses did not know. The claimant submitted that given the different answers and no precise figure being provided, the respondent should be found to have infinite resources available to it, such that it would have been reasonable to reach a decision other than dismissal. We did not agree with this. We have found that the respondent considered alternatives to dismissal and concluded that these were not viable for the reasons already given.[130]The claimant’s representative referred to the case of Perkins v St George’s Healthcare NHS Trus [2005] IRLR 93,4 CA. He asked us to consider the judgment, in particular paragraphs 30 – 34 and paragraph 59 when reaching our decision. Having done so, we were satisfied that there was nothing in that judgment which led us reconsider the conclusions we had reached. We remained satisfied that the respondent had shown that the reason for the claimant’s dismissal was an irretrievable breakdown in trust between the claimant and the respondent for the reasons already given.[131]The claimant’ representative submitted that the respondent had fallen into error by not allowing the appeal hearing to be a ‘de novo’ hearing. We did not agree. The respondent advised the claimant at the time of the invitation to the appeal hearing that the appeal hearing was not a re-hearing of the original ‘sosr’ hearing. He was advised he was to be given the opportunity to present his grounds of appeal including any additional relevant information at the appeal hearing. We were satisfied that the appeal panel carefully considered the claimant’s lengthy written and oral submissions and dealt with each of the matters he raised. There was no evidence from the claimant that he was precluded from raising any matters in the appeal hearing, which if he had done so, may have affected the outcome. The claimant’s representative submitted that the appeal panel decision to make further enquires after hearing the claimant’s submissions at the appeal hearing, rendered the appeal process unfair. We did not agree. We were satisfied that there was nothing in the handling of the appeal process by the respondent which rendered the process outside of the band or reasonable responses open to it.
Conclusion
[132]We have set out above that we were satisfied the respondent had shown the reason for the claimant’s dismissal was some other substantial reason. We have also set out above our conclusion that Ms Campbell and the panel had reasonable grounds upon which to sustain their belief that there was an irretrievable breakdown in trust and confidence between the claimant and the respondent. We reminded ourselves that the question we must ask ourselves is not whether we would have dismissed the claimant. Rather we must ask whether the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted (Iceland Frozen Foods Ltd v Jones 1983 ICR 17). We decided that, in the circumstances of this case, the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted. The dismissal was fair.[133]Accordingly, the complaint of ordinary unfair dismissal is dismissed. Automatically unfair dismissal 13 June 2019 email[134]On 13 June 2019 the claimant sent an email to the respondent about the White Armband Day event, organised by a third party, and which was hosted by the respondent. The claimant said that the hosting of the event breached the respondent’s Dignity at Work and Study policy (page 455) He wrote “I strongly believe that by publishing and spreading these false claims about the ethnic group to whom I belong, you are in breach of the Dignity at Work and Study policy particularly point 4.7 which says; ‘All staff.... others using the University’s premises......have a responsibility to promote equality and value diversity, to eliminate unlawful discrimination and promote good relations between different groups’”.[135]We considered whether what the claimant had written contained specific factual content (Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325, EAT) The claimant cited information which he had obtained from a friend who lived in Prijedor (the town where the event organisers said the incident had happened), and from research he had carried out himself which he believed showed that the event marked by the White Armband Day had not happened and that the hosting of the event by the respondent was in breach of its responsibilities to promote equality and eliminate discrimination. We concluded that his lengthy email did contain specific factual content.[136]We next considered whether the information contained in this email tended to show that one of the relevant failures has occurred is occurring or is likely to occur (Kilraine v London Borough of Wandsworth 2016 IRLR 422, EAT). The relevant failures relied upon by the claimant in the final list of issues are that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject (the list of issues referred to the public sector equality duty) and that a miscarriage of justice has occurred, is occurring or is likely to occur.[137]The claimant did not lead evidence to identify any miscarriage of justice upon which he relied or that he had a reasonable belief that there had been one.[138]The claimant did not lead evidence to identify any specific failure to comply with the “public sector equality duty”. We considered what the claimant had written in his email. He wrote that he believed that the event was in breach of the respondent’s responsibilities to promote equality and eliminate discrimination. He wrote that he believed the event was in breach of the respondent’s Dignity at Work and Study policy. He referred to the aims of the policy to ensure there was no discrimination against “all potential and current staff, students and other stakeholders” on the grounds of any protected characteristics. He wrote that he strongly believed that the event being marked had not taken place. We were satisfied that the claimant genuinely believed that the respondent was failing to comply with equality legislation. This is a failure to comply with a legal obligation. We were satisfied that given the research he had carried out, as set out in his email, his belief was based on reasonable grounds.[139]We considered whether the claimant held a reasonable belief that the disclosure in his email was made in the public interest. We were satiisfed that he did. The disclosure was about what he believed to be a breach of the respondent’s policy which sought to protect all potential and current staff, students and other stakeholders from discrimination. This was wider than the claimant’s own circumstance and we were satisfied that the contents of his email were made in the public interest. Given the research he had carried out and his strength of feeling about the matter we were satisfied that he reasonably believed that the disclosure was made in the public interest. The disclosure was a qualifying disclosure. As the disclosure was made to his employer, we were satisfied that it is a protected disclosure. 11 June 2020 complaint to SPSO[140]The complaint to the SPSO reiterated the contents of the email which he had sent to the respondent on 13 June 2019.[141]The disclosure was made to the SPSO, which is a prescribed body for the purposes of disclosures. The claimant must reasonably believe that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and that the information disclosed, and any allegation contained in it, are “substantially true”. This is a higher threshold than for disclosures made to an employer. We were satisfied that the claimant did believe that the information disclosed, and any allegation contained in it, were substantially true. It was clear from the research he had carried out and his strength of feeling about the matter that he reasonably believed the information and the allegations he made to be substantially true. We were satisfied that it is a protected disclosure. 14 July 2020 meeting[142]At the meeting on 14 July 2020 the claimant said he believed the School Management Group (SMG), in SCEBE. was biased against him in refusing his application for promotion to Senior Lecturer and that the SMG was racist; he believed he had been discriminated against in his application for promotion as he was a “white male Christian”; and that he believed staff were promoted based on their gender, being female, or for being from an African ethnic background.[143]We considered whether what had been said by the claimant in the meeting conveyed information or facts and not merely a statement of position or an allegation. (Cavendish Munro Professional Risks Management Ltd v Geduld 2010 IRLR 38, EAT).[144]We concluded that the claimant was frustrated that he had not been promoted to Senior Lecturer, He had looked at those who had been promoted some of whom were female and some of whom were from an African ethnic background. He had drawn a conclusion that the reason for their promotion was their gender or ethnicity. He had not seen the applications for promotions for these individuals or the rationale reached by the SMG when these individuals had been promoted. We concluded that what was said by the claimant in the meeting was no more than a statement of position or allegation. Accordingly, there was no qualifying disclosure made by the claimant on 14 July 2020. 8 September 2020 complaint[145]On 8 September 2020 the claimant made a formal written complaint about his unsuccessful promotion application. He asserted that(i) the promotion process was conducted in a non-transparent fashion and was racially biased;(ii) his line manager, Professor Sheila Smith refused to discuss promotion with him;(iii) at his Personal Development Annual Review (PDAR) meetings his line manager made accusations about his feedback from anonymous student surveys which he could not address effectively;(iv) his application was not seriously considered, with the promotion panel putting all the weight on what was missing from his application;(v) the respondent led a racist campaign against the ethnic group to which he belongs (the White Armband Day event organised by the charity Remembering Srebrenica) which has had negative consequences on him at a personal and professional level;(vi) the student surveys are the main problem in the promotion process;(vii) he had been told he is unlikely to meet the promotion criteria in the next promotion round; and(viii) he received no recognition in his promotion application for the work he had done on updating teaching modules. In his written complaint he provided details which he said supported each of the allegations which he was making.[146]We considered whether what the claimant had written contained specific factual content (Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325, EAT) We were satisfied that what he had written about the White Armband Day event contained specific factual content, particularly when read in conjunction with what he had previously written about the hosting of the event. We concluded that the rest of what he had written was about his unsuccessful promotion application. We concluded that what he had written about his unsuccessful promotion application did not contain specific factual content but was merely a statement of position or an allegation.[147]We were satisfied that what he had written about the White Armband Day event tended to show a failure to comply with a legal obligation and that the belief was based on reasonable grounds and in the public interest and that the claimant reasonably believed that to be the case for the reasons already given. The disclosure about the White Armband Day event was a qualifying disclosure. As the disclosure was made to his employer, we were satisfied that it is a protected disclosure. 1 September 2022 appeal[148]On 1 September 2022 the claimant appealed the outcome of his complaint about his unsuccessful promotion application. The claimant reiterated the points he had made in in his complaint of 8 September 2020 about his unsuccessful promotion. He did not refer to the White Armband Day event in his appeal. We concluded that what he had written about his unsuccessful promotion application did not contain specific factual content but was merely a statement of position or an allegation in the same way as his 8 September 2020 complaint. Accordingly, there was no qualifying disclosure made by the claimant on 14 July 2020.[149]Having concluded that the claimant made protected disclosures on 13 June 2019, 11 June 2020 and 8 September 2020, we next considered whether the claimant had been dismissed for making one or more of these protected disclosures. Under section 103A ERA an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[150]The reason for dismissal is a set of facts known or beliefs held which operate in the mind of the decision maker and causes them to make the decision (Abernethy v Mott Hay and Anderson [1974] ICR 323, Court of Appeal).[151]Ms Campbell and the two panel members were the decision makers. The claimant was dismissed on 13 March 2023. We accepted Ms Campbell’s evidence that the reason for the dismissal was the irretrievable breakdown of trust and confidence in the employment relationship between the parties. Ms Mitchell, who first referred the issue of trust and confidence to the respondent’s People Services, the dismissing manager Ms Campbell and the appeal manager Professor Nelson were all senior executives within the respondent. There was no evidence to suggest that they did not readily accept the policies and procedures in place for dealing with complaints and appeals. The respondent recognised that that the claimant was entitled to raise grievances. There was no evidence that Ms Mitchell, Ms Campbell or Professor Nelson had in their minds any of the protected disclosures made in 2019 and 2020 when considering the question of trust and confidence in 2023. We were satisfied that the reason for the claimant’s dismissal was not because he had made protected disclosures.[152]Accordingly, the complaint of automatic unfair dismissal is dismissed. Discrimination arising from disability[153]The claimant was found to be a disabled person by reason of the impairment of vertigo. The relevant period was found to be from 17 January 2023 to 13 March 2023. In closing submissions at this final hearing, the respondent confirmed that knowledge of the claimant’s disability of vertigo at the relevant time was not disputed. The “something arising” in consequence of the claimant’s vertigo was identified by the claimant in the final list of issues as the claimant’s “conduct”. The unfavourable treatment relied upon in the final list of issues is(a) the claimant’s dismissal; and(b) inviting the claimant to a formal meeting via the letter dated 1 September 2022. The complaint of unfavourable treatment (dismissal) in time.[154]We directed ourselves to the guidance in Sheikholeslami v University of Edinburgh [2018] IRLR 1090. We asked ourselves whether the respondent had treated the claimant unfavourably by dismissing him because of an identified ‘something’ namely the claimant’s conduct. We concluded that the claimant’s conduct was not why he was dismissed. As already stated, the respondent dismissed the claimant because there had been an irretrievably breakdown in the working relationship. That on the face of it brings the complaint to an end as the first issue identified in Sheikholeslami is not satisfied. We were mindful of the further guidance in that case, namely that if the ‘something’ was more than a minor or trivial part of the reason for unfavourable treatment then stage (i) is satisfied. If we are wrong, for the purposes of this complaint, and the conduct was more than a minor or trivial part of the reason for the dismissal, we went on to consider the second causative issue from Sheikholeslami. Namely did the ‘something’ namely conduct arise in consequence of the claimant’s disability of vertigo. On this issue we were satisfied that the claimant’s conduct did not arise in consequence of his vertigo. There was no evidence by the claimant at this final hearing to that effect. Prior to the claimant’s dismissal he had said to the respondent that his type 2 diabetes had affected his actions, although this was not the conclusion reached by OH. The claimant did not say prior to his dismissal or in evidence now that his behaviours or conduct arose in consequence of his vertigo.[155]Accordingly, the complaint of discrimination arising from disability (vertigo) is Failure to comply with duty to make reasonable adjustments[156]The final list of issues identifies the provision, criterion or practice (PCP) for this complaint as “the respondent’s activation of the process in its letter dated 1 September 2022”. In closing submissions at this final hearing, the respondent confirmed that it was not disputed that this amounted to a PCP. The substantial disadvantage identified by the claimant in the final list of issues is that the claimant “was less able to deal with pressures such as the increased workload and disciplinary or quasi disciplinary procedures”. The question of knowledge of this substantial disadvantage was not conceded by the respondent.[157]We asked ourselves whether the respondent’s activation of the process on 1 September 2022 (the PCP) put the claimant at a substantial disadvantage compared to someone without the claimant’s disability(vertigo) in that he was less able to deal with pressures such as the increased workload and disciplinary or quasi disciplinary procedures.[158]We concluded that there was no evidence led by the claimant to seek to establish that he was put to this substantial disadvantage. The claimant was asked questions about this by Mr Ward in evidence in chief but did not give any evidence in support of what was set out in the list of issues. It appears that this issue may be a vestige of the claimant’s claim as originally pled, when the claimant sought to rely on other impairments as disabilities. We are unable to make any findings in fact such that the burden of proof shifts to the respondent.[159]The claimant’s representative in submissions said that the substantial disadvantage relied upon is that the claimant could not attend the hearing on 13 February 2023 as he was off sick. This was not the substantial disadvantage in the final list of issues. The claimant’s representative submitted that the adjustment relied upon was “providing additional support" which he submitted meant following a disciplinary process for misconduct not a ‘sosr’ process.[160]Notwithstanding the fact that this substantial disadvantage had not been included in the final agreed list of issues we asked ourselves whether the respondent’s activation of the process on 1 September 2022 (the PCP) put the claimant at a substantial disadvantage compared to someone without the claimant’s disability(vertigo) in that he could not attend the hearing on 13 February 2023 as he was off sick. We concluded that it did not. The claimant was not signed off sick on 13 February 2023 because of vertigo. There was no evidence that the reason for his absence was vertigo. We were satisfied that there was no substantial disadvantage as the claimant now sought to assert.[161]Accordingly, the complaints of failure to comply with the duty to make reasonable adjustments are dismissed. Indirect disability discrimination[162]The PCP identified in the final list of issues for this complaint is “the respondent’s activation of the process in its letter dated 1 September 2022. The respondent accepts that this was a PCP which was applied to the claimant. We asked ourselves whether the activation of the process on 1 September 2022 placed the claimant and others who share the same disability (vertigo) at a particular disadvantage when compared to those who do not have vertigo. No particular disadvantage was identified by the claimant in the final list of issues. For completeness we considered this complaint, if the particular disadvantage relied upon by the claimant was the same as the substantial disadvantage relied upon in the section 20/21 EqA complaint. In other words, whether the activation of the process on 1 September 2022 placed the claimant and others who share the same disability (vertigo) at a particular disadvantage of being less able to deal with pressures such as increased workload or disciplinary or quasi disciplinary procedures when compared to those who do not have vertigo. As already set out elsewhere, there was no evidence led by the claimant to seek to establish that the PCP put him and others with vertigo at this particular disadvantage.[163]Accordingly, the complaint of indirect disability discrimination is dismissed. Direct sex discrimination[164]The less favourable treatment identified in the final list of issues is the claimant having to work increased hours and have more duties imposed on him by the respondent. The claimant relies on an actual comparator, Kate McAulay. We asked ourselves whether the claimant was treated worse than his comparator Kate McAulay.[165]Ms McAulay and the claimant were both employed as a Lecturer (Grade 7) in SCEBE, working full-time (35 hours per week) and with the same salary of £52,841 per annum. We were mindful that circumstances of the claimant and the comparator need not be identical in every way. What matters is that the circumstances which are relevant to the claimant’s treatment are the same or nearly the same for the claimant and the comparator. Both had teaching and script marking duties, allocated by Professor Smith, in the same School. We were satisfied that there was no material difference between her circumstances and the claimant and that she was an appropriate comparator.[166]We accepted Professor Smith’s evidence that the claimant and Ms McAulay had an equitable number of script marking duties to carry out. We accepted that Professor Smith would know this as she was the one who was allocating duties to both of them, including the marking of scripts. The claimant’s perception was that he had many more scripts to mark than Ms McAulay. We did not accept this. We accepted Professor Smith’s evidence that the claimant did not have full visibility of Ms McAulay’s script marking workload. We accepted that it was more likely than not that Professor Smith would have access to accurate information about script marking duties.[167]Professor Smith, in evidence, agreed that the claimant had more teaching hours than Ms McAulay. In the last academic year of employment, the claimant had around 205 hours and Ms McAulay had around 159 hours.[168]Section 136(2) EqA provides that 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. (3) But this provision does not apply if A shows that A did not contravene the provision.”[169]The burden of proving the facts referred to in section 136(2) EqA lies with the claimant. If this subsection is satisfied, then the burden shifts to the respondent to satisfy subsection 136(3) EqA. We directed ourselves to the guidance on the shifting burden of proof set out in, for example in Igen v Wong [2005] IRLR 258 and Madarassy v Nomura International Plc [2007] IRLR 246.[170]In the last academic year of employment, the claimant had more teaching hours than his comparator Ms McAulay. This is a fact from which we could decide at this first stage, and in the absence of any other explanation, that discrimination occurred. Accordingly, the burden of proof shifts to the respondent. At this second stage we considered the respondent’s explanation for the difference in teaching hours. Professor Smith’s explanation was that Ms McAulay’s teaching hours were less than the claimant because she had taken on an additional role as project coordinator for the forensic investigations' degree and because of the amount of research grant work she was doing. Her teaching allocation had been adjusted accordingly. Professor Smith knew this because she was the Head of the department where they both worked and was their line manager. We were satisfied that this explanation by Professor Smith was adequate, and that, accordingly, the respondent had shown that it did not contravene section 13 EqA.[171]Accordingly, the complaint of direct sex discrimination is dismissed. Equal pay[172]The claimant and Ms McAulay were both employed as Lecturers (Grade 7) in SCEBE, working full-time (35 hours per week). They both had the same salary of £52,841 per annum. The comparator was being paid the same as the claimant.[173]Accordingly, the complaint of failure to pay equal pay to the claimant is Victimisation[174]The protected acts relied upon by the claimant in the final list of issues are(a) his email on 13 June 2019;(b) his complaint to the Scottish Public Services Ombudsman on 11 June 2020;(c) his comments at the meeting on 14 July 2020;(d) his complaint on 8 September 2020; and(e) his appeal on 1 September 2022.[175]Firstly, we asked ourselves whether any of these were protected acts. Section 27(2)(d) EqA provides that making an allegation (whether or not express) that A or another person has contravened EqA is a protected act.[176]In the claimant’s email of 13 June 2019, he said that hosting the White Armband Day event breached the respondent’s Dignity at Work and Study policy. He wrote “I strongly believe that by publishing and spreading these false claims about the ethnic group to whom I belong, you are in breach of the Dignity at Work and Study policy particularly point 4.7 which says; ‘All staff.... others using the University’s premises......have a responsibility to promote equality and value diversity, to eliminate unlawful discrimination and promote good relations between different groups’”. We were satisfied that this was an allegation that the respondent had breached EqA and accordingly is a protected act.[177]In the claimant’s complaint to the Scottish Public Services Ombudsman on 11 June 2020 he repeated the allegations in his email of 13 June 2019. We were satisfied that this was an allegation that the respondent had breached EqA and accordingly is a protected act.[178]At the meeting on 14 July 2020 the claimant made allegations that the respondent was racist; he had been discriminated against in his application for promotion as he was a “white male Christian”; and that he believed staff were promoted based on their gender, being female, or for being from an African ethnic background. We were satisfied that this was an allegation that the respondent had breached EqA and accordingly is a protected act.[179]In his complaint on 8 September 2020 the claimant made allegations that the respondent’s promotion process was racially biased and that the hosting of the White Armband Day event was racially biased. We were satisfied that this was an allegation that the respondent had breached EqA and accordingly is a protected act.[180]In his appeal on 1 September 2022 the claimant reiterated the points he had made in in his complaint of 8 September 2020 about his unsuccessful promotion. These included his allegations of racial bias. We were satisfied that this was an allegation that the respondent had breached EqA and accordingly is a protected act.[181]The incidences of detrimental treatment relied upon by the claimant in the final list of issues are(a) he was instructed to attend a formal hearing on 1 September 2022;(b) there were no adjustments to attend that hearing;(c) the hearing proceeded in his absence;(d) he was dismissed. We asked ourselves whether any of these asserted incidences were a detriment.[182]We reminded ourselves that if a reasonable worker (even if not all reasonable workers) might take the view that the conduct in question was detrimental then the test of detriment is satisfied (Warburton v Chief Constable of Northamptonshire Police 2022 EAT 42). We were satisfied that being instructed to attend a formal hearing on 1 September 2022; the hearing proceeding in the claimant’s absence (albeit no decision was reached on the day) and the claimant’s dismissal were all matters which a reasonable worker might view as detrimental. These are accordingly detriments.[183]We were not satisfied that the asserted detriment of ‘no adjustments to attend that hearing’ could be viewed as detrimental in the absence of evidence that the claimant had asked for these adjustments to attend the hearing on 1 September 2022 or given any indication that these may be required. We concluded in the circumstances that no reasonable worker could conclude that there had been a detriment. Accordingly, we were not satisfied that this is a detriment.[184]Considering the detriments of being instructed to attend the hearing on 1 September 2022, the hearing proceeding in his absence and his dismissal, we asked ourselves whether any of those detriments were because the claimant had done any of the protected acts. There must be a causal link between the protected act and the detriment. The claimant must show that the reason why he was subjected to the detriment was ‘because of’ the protected act. (Chief Constable of Greater Manchester Police v Bailey 2017 EWCA Civ 425, CA).[185]We are satisfied that the claimant was invited to attend the hearing on 1 September 2022 due to concerns about his language and behavior and that the hearing went ahead for the same reason. The claimant was dismissed due to the irretrievable breakdown of his working relationship and the respondent’s conclusion that that the relationship could not be repaired. We were satisfied that there was no causal link between any of the protected acts and any of the detriments. We were satisfied that the claimant was not subjected to any of the detriments because of any of the protected acts.[186]The protected acts were complaints about what the claimant perceived to be racism by the respondent towards him. The detriments, which are about the dismissal process and his dismissal, occurred because of a concern about a breakdown of trust and confidence, that being confirmed as irretrievable when the respondent saw no way to fix the employment relationship.[187]Ms Mitchell, who first referred the issue of trust and confidence to the respondent’s People Services, the dismissing manager Ms Campbell and the appeal manager Professor Nelson were all senior executives within the respondent. There was no evidence to suggest that they did not readily accept the policies and procedures in place for dealing with complaints and appeals. Those policies and procedures permitted multiple levels of complaint and review of the respondent’s decision making, for example an application for promotion to the SMG; which unsuccessful application could be presented to the respondent’s promotions committee; which if unsuccessful could be subject to appeal; which if unsuccessful could be the subject of a formal complaint, which if not upheld could be appealed. This cycle could have continued indefinitely were it not for the claimant’s language and behaviours in other communications which caused the respondent concern. There was no evidence that Ms Mitchell, Ms Campbell or Professor Nelson had in their minds any of the protected acts when considering the question of trust and confidence. Accordingly, we were satisfied there was no causal link between any of the protected acts and the detriments.[188]Accordingly, the complaints of victimisation are dismissed.
Remedy
[189]As all of the complaints are dismissed, there is no requirement for a remedy hearing. J McCluskey