Mr A Gajdosy v Big Issue Sharebike Ltd: 4104393/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104393/2023Venue AberdeenHearing 10 April 2024
Between
Mr Adam GajdosyClaimantBig Issue Sharebike LimitedRespondent
Before
Employment Judge N M HosieDate 31 October 2024
JUDGMENT
The Judgment of the Tribunal, for the reasons given orally at the Hearing, is that:-[1]the claimant was a disabled person, at the relevant time, by virtue of his Degenerative Disc Disease and chronic back pain, within the meaning of s.6 of the Equality Act 2010; and E.T. Z4 (WR)[2]the case should now proceed to a Final Hearing on the merits.[1]the claimant was unfairly dismissed by the respondent; E.T. Z4 (WR)[2]the respondent shall pay to the claimant the sum of Thirty-Six Thousand, Eight Hundred and Fifty Pounds and Eighty-Eight Pence (£36,850.88), as compensation for the losses attributable to his unfair dismissal; the prescribed element is Thirty-One Thousand, Seven Hundred and Eleven Pounds and Seventy-Three Pence (£31,711.73) and relates to the period from 12 April 2023 to 14 October 2024; the award of compensation exceeds the prescribed element by Five Thousand, One Hundred and Thirty-Nine Pounds and Fifteen Pence (£5,139.15);[3]the respondent unlawfully discriminated against the claimant in respect of a failure to make reasonable adjustments, contrary to sections 20 and 21 of the Equality Act 2010;[4]the respondent shall pay to the claimant the sum of Two Thousand, Eight Hundred and Four Pounds (£2,804), as compensation for the unlawful discrimination, in respect of injury to feelings;[5]the respondent shall pay to the claimant the sum of Six Hundred and Eighty Pounds (£680), by way of accrued annual leave; and[6]the claim under s. 23 of the Employment Rights Act 1996 is well-founded and the respondent shall pay to the claimant the sum of Three Hundred and Ten Pounds and Fifty-Three Pence (£310.53), as unlawful deductions from wages.
REASONS
[1]Adam Gajdosy submitted a claim form on 21 August 2023 in which he intimated a number of complaints: automatic unfair dismissal by way of making protected disclosures; disability discrimination (a failure to make reasonable adjustments); for holiday pay; and for unpaid wages (pension payments). The claim was defended initially by the respondent Company, Big issue Sharebike Ltd (“Sharebike”). However, the Company went into Creditors Voluntary Liquidation on 30 August 2024 and there was no appearance by or on behalf of the Company at the Hearing.
The evidence
[2]We first heard evidence from Mr Gajdosy. We then heard evidence on his behalf from Stuart Aitken who worked with Mr Gajdosy for a short time as an E-bike Technician.[3]An extensive bundle of documentary productions was also submitted (“P”). Disability status[4]At a Preliminary Hearing on 10 April 2024, Judge Hosie decided that the claimant was a disabled person, at the relevant time, within the meaning of s.6 of the Equality Act 2010, by virtue of his, “Degenerative Disc Disease and Chronic Back Pain”. Observations on the evidence[5]Both Mr Gajdosy and Mr Aitken both gave their evidence in a measured, consistent and convincing manner and presented as entirely credible and reliable. Disability Discrimination Reasonable Adjustments The relevant facts[6]Sharebike was involved in the renting out, via a mobile App, of communal battery assisted bicycles to members of the public in Aberdeen.[7]Mr Gajdosy started his employment with Sharebike as an E-bike Technician on 7 November 2022. His Contract of Employment was produced (P.96-115). He had been unable to continue his previous employment as a Delivery Driver due to the prolonged periods of sitting which caused him back pain and reduced his mobility. When he was interviewed for the job with Sharebike by Jan Tore Endresen, one of the Directors, and Nicolo Silvani, one of the Managers, he disclosed his disability and he was told that they would make appropriate adjustments. As Mr Gajdosy had reservations about his ability to work full-time due to his disability, he was offered a part-time contract of 20 hours per week with the potential for overtime. This was confirmed by Mr Endresen in an e-mail which he sent to Mr Gajdosy on 20 October 2022 (P.88). The following are excerpts:- “My understanding after today’s conversation and discussion with Nico is that you therefore accept a half position with 4 hours of work every day in the workshop with responsibility for repairing the bicycles, with potential to increment hours if the set up works for you. We will arrange the workplace for you so that you don’t have to lift the bikes by making a ramp that allows the bikes to be rolled up in height and create a workplace where you can both stand and sit. It will of course be physical work, but you will not need to lift heavy things and you will have the freedom to work in variable positions. You will be given full training by a mechanic who estimates that with your mechanical background you will need 2 days to get to know the bikes. He will still be in Aberdeen for several days and you will have access to manuals and can call to discuss problems that you cannot master.”[8]Mr Gajdosy frequently asked Mr Endresen and Mr Silvani at the “virtual team meetings” on Fridays, and in phone calls, when he would be provided with the worktable, stool and ramp/lift he had been promised, so as to avoid heavy lifting and straining his back, but none were ever provided. He told Mr Aitken he was having a problem getting lifting equipment from his employer and that this was stressing him.[9]In December 2023, he was told that there were no funds available to purchase the equipment he had been promised. He was advised to use the IKEA kitchen cabinet at his workplace, temporarily, but this was wholly unsuitable.[10]Over the following months, he continued to ask verbally for the equipment he needed. When none was still forthcoming he had to borrow a children’s chair from his sister for his work.[11]As a consequence of the failure to provide him with the required equipment, as promised, Mr Gajdosy was unable to do his job as efficiently as he hoped. He had difficulties, lifting, bending, twisting, exerting force and prolonged periods of sitting or standing. He had to take regular breaks to continue working.[12]The consequence was that he had greater fatigue at the end of his working day and there was an adverse effect on his mental well-being, as the additional stress related to work took a toll on his mental health. Discussion and Decision
Relevant law
[13]The relevant statutory provisions are to be found in sections 20(3) and 21 of the Equality Act 2010:- “20. Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A(2) The duty comprises the following three requirements.(3) The first requirement is a requirement where a provision, criterion or practice of A puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…….[21]Failure to comply with Duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of sub-section (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.” PCP 14. The provision, criterion or practice (“the PCP”), in the present case, was a requirement by the respondent, to carry out the E-bike repair work without the assistance of equipment to “lift the bikes”. 15. It was clear, on the evidence, that this put Mr Gajdosy, as a disabled person, at a substantial disadvantage compared with persons who were not disabled. 16. Indeed, the respondent recognised the requirement to provide Mr Gajdosy with a ramp and other lifting equipment so that the bikes could be worked on at height but they failed to make this reasonable adjustment for him. 17. Accordingly, the respondent unlawfully discriminated against Mr Gajdosy in this regard. Automatic Unfair Dismissal Protected Disclosure Relevant law 18. This is to be found in sections 43B and 103A of the Employment Rights Act 1996:- “43B Disclosures Qualifying for Protection (1) In this Part a “qualifying disclosure” means any disclosure which in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of an individual has been, is being or is likely to be in danger, (e) that the environment has been, is being or is likely to be damaged, or (f) that the information tending to show any matter falling within any one of the proceeding paragraphs has been, or is likely to be deliberately concealed…….. 103A Protected Disclosure An employee who has been dismissed shall be regarded for the purposes of this Part 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.” The relevant facts 19. Mr Gajdosy expressed his concerns and complained on a number of occasions, verbally and by email, about his intolerably cold working conditions. He also raised his concerns about the safety of the Company’s Ford Transit van, its maintenance and state of repair and whether it was being driven legally, properly taxed and insured. He raised these concerns and complaints with Mr Endresen, the CEO and Director of Sharebike and also with Nicolo Silvani, one of the Managers and Anthony Fortin, the Acting Regional Manager. He told them that the extremely cold conditions in which he had to work at their Aberdeen premises was affecting his health. 20. Mr Gajdosy expressed his concerns to Mr Endresen and Mr Silvani by email on 19 February 2023 (P. 130-131). He did not receive a response until after his dismissal on 15 March. 21. The Tribunal was of the unanimous view that Mr Gajdosy reasonably believed that these disclosures were made in the public interest.[22]The Tribunal was also of the unanimous view that these were disclosures qualifying for protection, in terms of s.43B(1) and (b) and (d) of the 1996 Act.[23]With reference to the guidance in Martin v. London Borough of Southwark & The Governing Body of the Evelina School EA-2020-00432-JOJ in which the EAT reiterated the five-stage test from a number of authorities for determining if there has been a protected disclosure: they were disclosures of information; Mr Gajdosy believed that the disclosures were made in the public interest; his belief was reasonably held; Mr Gajdosy believed that the disclosure tended to show the matters in s.43B(1)(b) and (d); and that belief was also reasonably held. Dismissal[24]The Tribunal was also of the unanimous view, with reference to s.103A of the 1996 Act, that Mr Gajdosy was dismissed by Mr Endresen because he made these protected disclosures.[25]Mr Endresen’s response to the protected disclosures which Mr Gajdosy made was to dismiss him. He was dismissed without any prior warning and without any formal procedure. Mr Endresen intimated his dismissal by way of a WhatsApp message on 15 March 2023 (P.173-174) and confirmed his dismissal by letter of the same date (P.175). Mr Endresen asserted that the reason for his dismissal was that: “You do not fit into our environment that requires fast repairs, high team support and good communication across the organisation…… The lead mechanics find it very hard to work with you and you fail in meeting our policy for team support and positive communication.” None of these matters had been raised with Mr Gajdosy before. In the Tribunal’s unanimous view, these allegations were wholly without foundation. The real reason why Mr Gajdosy was dismissed was because he had made protected disclosures. As his witness, Mr Aitken put it, “he was dismissed because he was standing up for himself”.[26]Accordingly, Mr Gajdosy was automatically unfairly dismissed. Remedies Unfair dismissal[27]Mr Gajdosy was still unemployed at the date of the Tribunal Hearing. He is in receipt of Universal Credit. We were satisfied that he had taken reasonable steps to mitigate his loss. We decided that it would be just and equitable to award him compensation to reflect his financial loss.[28]Helpfully, Mr Gajdosy’s representative had submitted a Schedule of Loss (P. 75-78). There is no Basic Award as Mr Gajdosy was only employed by Sharebike for 5 months.[29]So far as the Compensatory Award is concerned, in the Schedule of Loss this was “capped” at 12 months (P.76). However, as this was an automatic unfair dismissal, the award is not capped in the same way as an award of compensation for a “standard” unfair dismissal[30]Further, there is no award for loss of statutory rights as Mr Gajdosy was only employed for 5 months and the Universal Credit is not deducted as the recoupment provisions apply.[31]We were satisfied that the calculation of Mr Gajdosy’s financial loss, including pension contributions, for the year to 12 April 2024 in the Schedule of Loss, at £21,025.56 was correct (P. 76).[32]However, Mr Gajdosy is also entitled to an award of compensation to reflect his financial loss to the date of the Hearing on 14 October 2024, a further 6 months and 1 week, which amounts £10,686.17 (£10,278.30 for 6 months + £407.87 for 1 week), making a total of £31,711.73.[33]We were also of the view that it may be sometime yet before Mr Gajdosy is able to secure employment with earnings at the level he enjoyed when he was employed by Sharebike. We decided that it would be just and equitable to award him a further three months’ loss of earnings for future loss. This amounts to £5,139.15 (3 x £1,713.05).[34]Accordingly, the total award of compensation is £36,850.88 (£21,025.56 + £10,686.17 + £5,139.15).[35]However, as Mr Gajdosy has been receiving Universal Credit the Employment Protection (Recoupment of Benefits) Regulations 1996 apply and the procedures for the recoupment of benefit by the DWP have to be followed. Unlawful disability discrimination Injury to feelings[36]We were also of the unanimous view that it would be just and equitable to award Mr Gajdosy compensation to reflect his injury to feelings, in respect of the unlawful discrimination. We did not hear a great deal of evidence from him about this and there was no supporting medical evidence. However, it was clear that the failure by the respondent to make reasonable adjustments had caused him stress and anxiety and affected his mental health.[37]On the evidence, we were of the unanimous view that an award in the lower band of Vento v. Chief Constable of West Yorkshire Police [2003] IRLR 102 (as updated annually by “Presidential Guidance”) should be made. We decided that the award should be £2,500.[38]This award also attracts interest at the Judicial rate of 8% from the last date of the act complained of which was when Mr Gajdosy’s employment ended on 12 April 2023 to the date of the Tribunal Hearing on 14 October 2024, a total of 18 months and 1 week. This amounts to £304.[39]Accordingly, the total award of compensation, therefore, for injury to feelings, inclusive of interest, is £2,804.[40]We might add, that as the claimant had only been employed by Sharebike for only 5 months, we were not persuaded that an ACAS uplift in respect of a failure to follow a disciplinary procedure was appropriate. Accrued annual leave[41]Mr Gajdosy’s representative provided a very detailed calculation of the accrued annual leave which was due (P.77). As we recorded above, there is no uplift in respect of a failure to follow the ACAS Code. However, we were satisfied that the claim for £680, in respect of 11 accrued days, (£897.30), less a payment of £217.35 already made (P.258) was well founded. Pension contributions/Unpaid wages[42]We were also satisfied that the claim for unpaid wages, in the form of pension contributions, was well-founded (P.77). Sharebike failed to make any pension contributions as it was required to do contractually. A very detailed explanation and calculation of the sum due was provided. We were satisfied that this was accurate and well-founded (P.37-39). Accordingly, the respondent should also pay to the claimant the sum of £310.53 in this regard (£144.12 + £166.41).[43]We were not persuaded that any of the other sums claimed were wellfounded.