Mr A Morton v Royal Mail Group Ltd and Blue Arrow Ltd: 4104574/2018 and 4104576/2018

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4104574/2018, 4104576/2018

Venue Glasgow

Hearing 3, 4 and 5 June 2019

Between

Mr A MortonClaimant

Royal Mail Group Ltd and Blue Arrow LtdRespondent

Before

Employment Judge Laura Doherty

Ms A Hunter (instructed by Solicitor) for respondent

Ms J Wright (instructed by Solicitor) for respondent

Date 17 February 2021

JUDGMENT

The Judgment of the Employment Tribunal is that at December 2017 the claimant was a disabled person in terms of section 6 of the Equality Act 2010.

REASONS

[1]The claimant presented two claims against the respondents of disability discrimination in terms of the Equality Act 2010 (EqA).

[2]The claims were conjoined, and this Preliminary Hearing (PH) was fixed to determine as a preliminary issue, whether the claimant was a disabled person in terms of section 6 of the EqA as at December 2017, when the alleged act of discrimination is said to have taken place.

[3]The claimant appeared in person at the PH; the first respondents were represented by their solicitor, Ms Hunter, and the second respondents by Ms Wright, solicitor. E.T. Z4 (WR)

[4]The claimant gave evidence on his own behalf, and the parties lodged a joint bundle of documents.

[5]There was a preliminary issue in relation to the documents. Ms Wright made an application to substitute one of the documents included in the bundle, which was a Blue Arrow medical questionnaire, with a more legible copy of that document.

[6]Objection was taken to the inclusion of this document in the bundle by the claimant, on the basis that the original document was not produced. It was also the claimant’s position that the medical questionnaire amounted to contravention of the provisions of section 60 of the EqA. It was the second respondent’s position that the document did not contravene these provisions, and Ms Wright indicated that she would lead evidence in relation to this point.

[7]The document appeared to the Tribunal to be relevant to the issues which it has to determine, and therefore it was satisfied that it should be included in the bundle, subject to any argument as to whether it constituted a contravention of section 60 of the EqA.

[8]The claimant did not seek an adjournment of the proceedings on the basis that the document was to be included.

[9]The Tribunal heard evidence from the claimant, and from Mr Hannah, an operations director at Blue Arrow.

[10]Included in the bundle of documents was a medical report from a Dr Gavin Tait, which the claimant had instructed. The claimant did not seek to rely on Dr Tait’s report. Both respondents confirmed that they were able to agree the report produced in the bundle was a report produced by Dr Tait, but beyond that no admission is made. Findings in Fact

[11]The claimant, whose date of birth is 9 November 1963, suffers from mild mnemonic chronic ligamentous mechanical back pain, and left drop foot.

[12]The claimant had a long history of lower back pain and left sciatica. On 16 November 2001, he required emergency admission for sciatic pain and on 27 November he had back surgery. Following the surgery, he has suffered intermittent back pain. The weakness in his left lower leg did not improve and the claimant has permanent left foot drop. This has been a chronic condition which the claimant has experienced for 17 years.

[13]There is marked muscle weakness which is seen on the claimant’s lower left leg. The claimant does not have active flexion of his left foot, ankle or big toe, but he has full power in his plantar flexion. The effect of left foot drop is that the claimant’s left foot drops, which means that he cannot lift his left foot. The claimant wears a left ankle/foot orthosis which is a plastic splint, which is strapped to his calf under his left foot in order to maintain his ankle and foot at 90 degrees. Without the ankle/foot orthosis (splint), the claimant walks with a dropped foot deformity.

[14]When the claimant is not wearing his splint, his left foot drags, and he has to lift his left leg higher to compensate for that; his foot is ‘all floppy’ when it lands on the ground. The claimant is not able to walk any significant distances without discomfort, or his balance being affected, particularly on rough or uneven ground when he is not wearing a splint. The claimant does not attempt to walk out of doors without wearing his splint because this it would be difficult.

[15]When the claimant is wearing his foot splint, he can walk a reasonable distance, albeit he has to take account of the ground conditions, in particular any cobblestones, or uneven ground, and he can become fatigued after about fifteen minutes of walking.

[16]The claimant can drive a manual car when he is wearing a split. He cannot drive a manual car when he was not wearing a splint, as he does not have sufficient control of his left foot in order to operate the clutch. He could drive an automatic car without wearing his splint.

[17]The claimant can carry groceries, when he is wearing his splint and he is able to shop for groceries. If the claimant did not wear his splint, he would not be able to carry groceries as his balance would be affected by carrying weight, and he would be unable to carry any shopping home. The claimant could not shop for groceries if he was not wearing his splint.

[18]The claimant suffers from intermittent back pain. He last consulted his GP about this, in 2002. The claimant takes ibuprofen from time to time to alleviate his symptoms.

[19]When the claimant registered with Blue Arrow, the second respondents, he completed a medical questionnaire (document 11, page 53). This medical questionnaire was completed prior to the claimant being offered any employment. The purpose for which the questionnaire was used was set out in the preamble. The preamble stated; In order for Blue Arrow to ensure that any assignment you are offered poses no threat to the health and safety of yourself, your colleagues or the public, or so that we can consider all reasonable adjustments may be necessary in a particular assignment, please complete the relevant parts of this questionnaire fully and accurately. It may be necessary for your consultant to request further details of any aspects of your health for these purposes.’

[20]The questionnaire was completed by the claimant. In answer to the question ‘do you have back trouble or another muscle or joint trouble’, the claimant answered no. The questionnaire asked ‘should we be aware of any matter affecting your ability to: stand, sit, walk, lift, climb stairs, use your hands’. The claimant answered no to all these questions. The claimant also answered no to the questions as to whether he had taken any time off work because of an illness or injury, or whether he was taking any prescribed medication which may affect his ability to drive, operate machinery or perform his duties.

[21]The claimant instructed Dr Tait to provide a medical report for the purposes of this case. Dr Tait has experience in providing medico legal reports. The instruction asked inter alia that Dr Tait provide a ‘medical report which will enable the employment tribunal in assessment of whether I, the claimant suffer from a disability within the meaning of the Equality Act 2010’.

[22]The claimant provided Dr Tait with a copy of the Equality Act 2010 Guidance notes, the EHCR Employment Statutory Code of Practice, and section 6 and schedule 1 of the Equality Act 2010. The letter of instructions set out the legal tests for disability and ask a number of questions. Those questions included:(1) Do you believe that the claimant suffered and/or suffers from any physical and mental impairments? If so, what and between what dates?

(2) Do you consider that the claimant suffered and/or suffers from any impairments and/or does it have any adverse effect on the claimant’s ability to carry out normal day to day activities?

(3) If so, what activities, and what is the adverse effect?

(4) If the claimant has and/or had an impairment which has an adverse effect on his ability to carry out his normal day to day activities, was and/or is that effect substantial? ... (g) Please outline any measures which have been or are being taken to treat or correct the claimant’s impairments and when? Please indicate if these measures are continuing. (h) If measures are being undertaken, please indicate what the effects of stopping those measures would be on the claimant?

[23]Dr Tait’s report (document 21) contains the following statements: Past Medical History Mr Morton states that at the age of 21 he lifted a heavy engine and suffered an injury to his back, which resulted in him developing left leg sciatica pain and numbness in his lower leg and foot. He continues to suffer intermittent exacerbations of his condition, which he managed with analgesia, but his symptoms did not progress and ultimately, he underwent a standard lamintectomy operation to his lower back in Falkirk Royal Infirmary. This was to remove a lapsed disc and states did you leave him of his sciatic pain. He states unfortunately, however, he subsequently developed a left foot drop as a consequence of a partial paralysis of the sciatic nerve. This foot drop has persisted from that time onwards and is a chronic disability. Since 2000 he has suffered intermittent episodes of in his left leg which last 1-2 weeks, often worse in bed. He has never been prevented from working normally by any symptoms in his left leg. He does not suffer any recurrence of sciatic pain. His walking distance is not limited, although he is limited by the fact he has a left drop foot and has to wear a left below knee and ankle/foot orthosis. If he does not wear the orthosis, then he has to walk with a high stepping gait and can occasionally catches foot. He states that since his surgery, he suffered intermittent episodes of low back pain, localised to the lumbaroscacral area, with no particular laterality. His pain is aggravated by bending and sitting driving his HGV for more than 2 hours. After a short break can return to driving without difficulty. He has no particular sports or hobbies. He is not limited in his normal activities of daily living by his back or foot condition. ……… Clinical examination On examination Mr Morton is a generally fit looking man of middle-age who stands with a normal posture. He was able to undress and dress himself to his underwear without difficulty. He was clearly wearing a well worn left ankle/foot orthosis, a plastic splint which is strapped to his calf and under his left foot to maintain his left foot and ankle at 90 degrees. With the ankle/foot orthosis removed, he clearly has significant wasting of the muscles of his left calf, which is about half the size of his right calf. When he walks without ankle/foot orthosis, he walks with a dropped foot deformity. He is able to climb up on to and down from an examination couch without apparent difficulty or discomfort and appears to be comfortable supine on the couch. Straight leg raising is possible to 90 degrees at both hips with no evident discomfort. He has no active dorsiflexion of his left foot, ankle or great toe, but has full power in plantar flexion. While standing, examination of his back reveals a well healed, 6” long longitudinal laminectomy scar over his lower lumbar spine. The scar is well healed and non-tender. He is able to flex his lumbar spine only to some 2-3cm of skin extension, indicating some resistance to active flexion. He will not allow active or passive extension of his lumbar spine, but lateral rotation and lateral flexion appear to be normal and pain-free. Conclusions Mr Alexander Morton is a 55 year old HGV driver who underwent a 2 level laminectomy and discectomy in 2001 for a 5 year history of low back pain and left sided sciatica. Unfortunately, he suffered damage to the L5 nerve root, resulting in a chronic left dropped foot deformity, associated with wasting and weakness below the knee in his left leg. Since his surgery, Mr Morton has continued to work satisfactorily as an HGV driver, but he has suffered intermittent episodes of low back pain muscular pain and occasional shooting pains in his leg and foot. These pains are aggravated by heavy lifting and carrying and sitting for a prolonged period, beyond 2 hours. The pains resolve after rest. He has not been prevented from performing any of his normal activities of daily living or his household duties as a consequence of his back or leg condition. He has not been prevented from working by his conditions. At the present time, he clearly has a dense chronic left dropped foot deformity, which requires the use of a permanent below knee splint. There is evidence of restriction of active movement of his lumbar spine but no evidence of any other neuromuscular abnormality in his back or left leg. He is not presently under any investigation or treatment and is not presently limited in any of his normal activities of daily living or his work duties, which do involve the use of a pallet truck. He has not lost any time from his work subsequent to the event in Christmas 2017. Opinion Clearly, Mr Morton suffers from mild to moderate chronic musculoligamentous mechanical backache as a consequence of his spinal surgery. This is an unfortunate but regular consequence of a surgical assault to the lower back for sciatica. However, the surgery does cure the sciatica. His dropped foot is a consequence of damage to one of the nerve roots in his back, either at the time or prior to his operation, and is now chronic and has been for 17 years. While Mr Morton is not unfit to carry out his present occupation as an HGV driver or to load and unload a trailer of pallets, using a pallet truck, it is evident from his medical records that he has suffered from previous episodes of back pain brought on by heavy lifting and pulling. Thus, it would be reasonable for him to avoid any such activity which might bring on a further episode or exacerbation of his present intermittent low back pain.

Conclusions

[24]On receipt of Dr Tait’s report, the claimant wrote to him on 23 January 2019 stating that he had concerns about the contents of the report ( page 124). Among other things the claimant stated that he could not recall a discussion about walking distances, and stated he was confused at how Dr Tait arrived at the conclusion that his walking distance was not limited. Dr Tait replied on 4 January (page 145) stating inter alia: ‘May I explain my role in provision of a medical report for personal injury. I am usually instructed by a solicitor who would be your advocate to make your case. That is not my function and cannot be. I write medical reports based on the testimony given on the day of interview and cannot amend that subsequently, other than to correct facts. I cannot change my report on further subjective analysis by another party. What you are asking is for me to subsequently rewrite my report, which I cannot do. A solicitor would be the person to make your case and argue the points you make. You make comment as to the “legal” interpretation of these matters. That is not for me or you to know and interpret and why if you wish to pursue this you must consult a solicitor. With regards to the points you make in the first 2 paragraphs of your note I would advise that you instructed me to report on an occasion when you did not wish to pull trolleys, as that action might have aggravated your back condition. That I have done. At no time did I agree to comment on your overall long term back pain and your ability to work. That would be a different matter altogether and would require you to take advice from a solicitor.’ Note on Evidence

[25]The Tribunal heard evidence from the claimant, and from Mr Hannah, an operations director with Blue Arrow, who gave evidence for the second respondent.

[26]Mr Hannah gave evidence as to the second respondent’s practice of requiring individuals who registered with them to complete a medical questionnaire, and for the purposes for which that is done. He also spoke to the fact that because the second respondents transferred their operating systems from a paper system to a computer-based system, the original documentation which the claimant signed, would have been destroyed, and a scanned copy retained on the second respondent’s computer records. The Tribunal found Mr Hannah’s evidence to be entirely credible and reliable.

[27]The Tribunal formed the impression that the claimant was in the main a credible and reliable witness. The Tribunal did not form the impression that the claimant sought to embellish or exaggerate his evidence as to the consequences of the impairment of drop foot. He accepted quite readily that he was able to engage in a productive working life and carry out normal day to day activities such as shopping or driving with the benefit of a splint. Nor did the claimant seek to exaggerate the effects of his back pain; he accepted the back pain was intermittent. The fact that the claimant was able to make appropriate concessions, enhanced his credibility in the claimant’s view.

[28]There was an issue arising from the report from Dr Gavin Tait, which had been commissioned by the claimant. The relevant parts of the letter instructing Dr Tait, and Dr Tait’s report are set out above in the findings in fact.

[29]The claimant relied on Dr Tait’s report to the extent that Dr Tait’s narrated his medical history and reviewed his medical records. The claimant also accepted that Dr Tait was entitled to have a medical opinion. He did not accept however that Dr Tait was entitled to express all the opinions which he did, and he particularly took issue with the suggestion in the report that the claimant’s walking distance was not limited, and that he was able to carry out all normal day to day activities.

[30]It was the claimant’s position that he had not been asked by Dr Tait about the distance which he could walk, and that Dr Tait’s report did not take into account the impact of his drop foot deformity, if he was not wearing his left ankle/foot orthosis.

[31]Ms Hunter for the second respondents submitted that Dr Tait’s report could not be challenged. Dr Tait had not been called to give evidence, and therefore could not deal with the challenges which the claimant made to his report. It would have been open to the claimant to call Dr Tait. The claimant could not pick and choose the parts of the report which he wished to rely upon.

[32]Both respondents referred to Dr Tait’s expertise in providing medical reports and referred to the comprehensive nature of the instructions, and the fact that Dr Tait had been provided with the relevant guidance in the letter of instruction for the purposes of preparing a report in relation to the claimant’s disability status and knew what was required of him.

[33]It appeared to the Tribunal that there was a relevant dispute between the claimant and both respondents as to the extent to which Dr Tait’s report dealt with the question of the effect of the claimant’s impairment of drop foot, if he was not wearing his left foot ankle/foot brace.

[34]The respondents’ position was that Dr Tait’s report dealt with this, and made clear that there was no impact, and that the claimant could carry on a full range of day to day activities. Both respondents referred in particular to the fourth paragraph of Dr Tait’s report under the heading ‘past medical report’ (page 134) in which he states: ‘Since 2000 he has suffered intermittent episodes of cramp in his left leg which last 1-2 weeks, often worse in bed. He has never been prevented from working normally by any symptoms in his left leg. He does not suffer any recurrence of sciatic pain. His walking distance is not limited, although he is limited by the fact that he has a left dropped foot and has to wear a left below knee ankle/foot orthosis. If he does not wear the orthosis, then he has to walk with a high stepping gait and can occasionally catch his foot.’

[35]The respondents also relied on two paragraphs from the Conclusions section of Dr Tait’s report in which he states: ‘He (the claimant) has not been prevented from performing any of his normal activities of daily living or his household duties as a consequence of his back or leg condition. He has not been prevented from working by his conditions.’

[36]It was the respondents’ position that Dr Tait’s comments as to the effect of the left drop foot was consistent with the claimant’s evidence. The claimant’s evidence was that he walked with a high step gate, and the report made clear that there was no effect on the claimant’s normal day to day activities as a result of his condition.

[37]It was the claimant’s position that the report did not accurately reflect the impact of his left foot drop when he was not wearing a foot brace. His position was that his impairment significantly affected his walking distance, his ability to drive a manual car, and his ability to balance which meant that he could not carry weight if he was not wearing his splint. This impacted on his ability to carry groceries, which meant that he could not go shopping.

[38]In submitting that the Tribunal should accept Dr Tait’s report as evidence in support of the fact that the claimant had no restriction in the performance of his normal day to day activities as a result of his condition of left foot drop, both respondents referred to the case of Kapadia v London Borough of Lambeth

2000 IRLR 669

. The Judgment of Lord Justice Pill in that case (paragraph 30) states; 39. ‘There will be cases of which a fact finding tribunal is not obliged to accept uncontested medical evidence given to it.’ For example, evidence on the basis of which his doctor has formed an opinion may be rejected by the factfinding Tribunal. There may be cases where it is clear the medical witnesses misunderstood the evidence which he was invited to consider in expressing his opinion. No such consideration applied, however in this case. The majority of the tribunal sought to substitute, for the medical opinion, their own impression of the claimant formed in the course of the hearing which took place a year at least after the relevant date of which the claimant’s medical state had to be considered’.

[40]The Tribunal recognise that unless it has good reason to do so, it should not reject uncontradicted medical evidence. It appeared to the Tribunal however that it was not necessary that Dr Tait’s opinion that the claimant had no restriction in his performance of normal day to day activities, including walking, should be rejected. The claimant accepted that he had no such restriction when wearing his orthosis.

[41]The issue was the basis on which Dr Tate had expressed that opinion. In particular whether his opinion as to the claimant’s abilities was expressed on the basis that the claimant was not wearing his orthotic aid.

[42]The opinion section in Dr Tait’s report does not specifically address this. The closest Dr Tait’s report comes to dealing the question posed by the claimant at point (h) of his letter of instruction, is contained in the statement about the claimant walking with a high stepping gate and that he can occasionally catch his foot, under the heading Past Medical History.

[43]Dr Tait’s report makes it clear that there is an effect of the claimant having dropped foot, (claimant has to walk with a high stepping gait and can occasionally catch his foot). The respondents submitted this was consistent with the claimant’s evidence. The claimant said he walked with a high stepping gait, and he explained that the effect of his condition is that his left foot drags, that he has to lift his left leg higher to compensate for that, and his foot is ‘all floppy’ when it lands. The Tribunal accepted this evidence as credible. There was nothing in the medical report which suggested that it should not do so.

[44]The respondents were critical of the claimant’s evidence, in maintaining that his evidence as to the distance which he said he could walk without the orthotic splint was ‘vague’. The Tribunal however was satisfied that the claimant, as he said, never left the house without wearing the orthotic splint and that he only took the splint off when he was at home. The Tribunal accepted the claimant’s evidence that he would find it painful and difficult to walk any distance without a splint, and that his balance would be in jeopardy, especially on rough ground. The Tribunal also accepted the claimant’s evidence that in addition, his condition affects his balance, and that without wearing the splint, he would have difficulty carrying groceries. It appeared to the Tribunal the claimant’s evidence on these matters was not inconsistent with terms of Dr Tait’s report, and under the heading ‘Clinical Examination’, in which he states; (the claimant) was clearly wearing a well-worn left ankle/foot orthosis, a plastic splint which is strapped to his cast on his left foot to maintain his left foot and ankle at 90 degrees. With the ankle/foot orthosis removed, he clearly had significant wasting of the muscle of his left calf, which is about half the size of his right calf. When he walks without the ankle/foot orthosis, he walks with a dropped foot deformity.

[45]The Tribunal also took onto account that Dr Tait states in the Opinion section that the claimant is not unfit to carry out his present occupation as an HGV driver. The claimant gave evidence to the effect that if he did not wear his splint he could not drive a manual car, and that he would not be able to obtain an HGV licence. This evidence was not challenged in cross examination. The respondent’s submission was that the claimant accepted that without his splint he could drive an automatic car, and therefore his condition did not have an impact on the activity or driving. It was further submitted that driving an HGV was not a normal day to day activity (second respondent).

[46]The claimant’s unchallenged position that he could not drive a manual car without wearing his foot brace, suggested that Dr Tait’s opinion the that the claimant could carry out all normal day to day activities , which included that the claimant could continue to work satisfactorily as an HGV driver, was reached on the basis of the claimant’s abilities when he was wearing his orthotic foot brace.

[47]The Tribunal therefore did not reject the evidence in Dr Tait report, but on balance, was satisfied that the Conclusion and Opinion section of the report in so far as relevant to the impact of the claimant’s impairment, did not dealt with the effect of the claimant’s impairment when he was not wearing his foot brace, and that the paragraph relied upon by the respondents under the Past Medical History heading of the report, could not be taken as a clear statement to the effect that the claimant’s walking distance was not limited as a result of his condition, when he was not wearing a foot brace.

[48]In assessing the credibility of the claimant’s evidence on the impact of his drop foot impairment the Tribunal also took into account the medical questionnaire which he completed when registering with the second respondent. The claimant firstly had an issue as to whether this was a questionnaire which he had completed, the original documentation not being produced before the Tribunal.

[49]The Tribunal was satisfied that the claimant had signed the questionnaire which was a standard document required of an individual registering with the second respondent. It appears to be signed by the claimant, and he was unable to take a clear position that the document had not been signed by him, albeit he said the answers to the questions may have been ticked by someone else in response to answers which he gave. The Tribunal found Mr Hannah’s evidence as to why the original could not be produced, and the purpose of the questionnaire, to be credible.

[50]The Tribunal took into account the answers given by the claimant in that questionnaire and attached some weight to the fact that he indicated that there was nothing the respondents should be aware of which affected his ability to walk. However the Tribunal also took into account the activities which the claimant could do while wearing a splint ( which included walking and driving) and therefore did not find that the claimant’s answers to the medical questionnaire were determinative of the issues before it, or impacted so adversely upon the claimant’s credibility, that the Tribunal was entitled to reject his evidence as to the impact of his impairment in its entirety. List of Authorities

[51]The parties referred the Tribunal to the following authorities:• Mr R Banaszczyk v BUKA Limited

UKEAT/1032/15/RN

• Kapadia v London Borough of Lambeth

2000 IRLR 699

(CA)

• De Keyser v Wilson

2001 IRLR 324

• Woodrup v London Borough of Southwark

2003 IRLR 111

• Anwar v Tower Halmets College

UKEAT/0091/10

Claimant’s Submissions

[52]The claimant took the Tribunal to the test of disability status under the Equality Act and the Guidance. He referred the Tribunal to the terms of Dr Tait’s report in relation to the impairment in respect of his back and the history recorded in that report.

[53]The claimant took the Tribunal through the history of how Dr Tait came to be instructed and took the Tribunal to his letter to Dr Tait, in which he took issue with the statements made about the content of the report, which the claimant said were factually inaccurate. He submitted that when Dr Tait used the word normal in the report, it was not the legal meaning of the word normal relevant to the Equality Act. He submitted that Dr Tait used the word in a colloquial sense. Dr Tait had no desire to alter his report even though it was perfectly clear he was in error. The claimant pointed to an error as to the claimant’s employment history contained within the report, and another error in relation to the claimant’s personal circumstances.

[54]The claimant submitted that he did not argue with Dr Tait’s medical opinion, as that was derived from his medical experience. He did argue however with his note taking skills during interview, and his attention to what the claimant has said which he submitted was clearly inadequate. The claimant submitted that the Tribunal would be entitled to reject Dr Tait’s report or part of it, and he referred in that regard, to paragraph 30 of the judgment in Kapadia

[55]The claimant went on to submit that he did have an impairment of back pain, and foot drop. He submitted the medical evidence supports the view that the foot drop occurred through damage to one of the nerve roots in his back and thereby the back injury caused the foot drop. The claimant submitted that although the sciatica was cured, there was damage to both the nerve root and back, and there was evidence that the mechanical back pain can be a consequence of surgery.

[56]The claimant submitted that he suffered intermittent back pain for many years. He explained that he self-medicates when necessary to alleviate the back pain, and that he uses rests to enable a return to a level of fitness to continue with the work environment. He submitted he only needs to visit his GP when the level of pain is lasting longer, and it is more troublesome than normally experienced. The claimant submitted there was clearly a link between the foot drop and the back ache and it could well happen that the foot drop contributes to the back ache through altering his gate and both conditions could be linked.

[57]The claimant referred to section C2 of the Guidance. The claimant submitted that the use of a lower leg splint gives him the opportunity to do some normal day to day activities. He submitted the consequence of not using the leg splint would be to increase the burden on his back/hips causing onset fatigue and pain at a quicker pace and he would not be able to sustain his employment. The claimant submitted that if he could carry out normal day to day activities without his leg splint, there would be no point in wearing it at all

[58]The claimant has submitted that the day to day activities which he could not perform without a splint would be driving a manual car, retaining his HGV licence, walking on uneven ground without risk of tripping, walking any distance without risk of pain, carrying shopping of any significance, going around the community, or continuous employment.

[59]The claimant submitted that normal day to day activities extend to include the workplace, and he referred to the case of Banaszcyk in connection with this. Submissions Submissions for the first respondent

[60]Ms Hunter for the first respondent took the Tribunal to the relevant law and addressed the Tribunal on the evidence.

[61]She submitted that Dr Tait produced his report after he met with the claimant, assessed him and discussed his condition, and that he formed his opinion based on the claimant’s medical records.

[62]Ms Hunter referred to the case of De Keyser, in particular paragraph 36, in which the EAT set out the guidance on the use and instruction of medical experts. The EAT referred to the ‘valuable observations about expert evidence in Whitehouse v Jordan

1981 1WLR 246

House of Lords, ( the expert’s evidence should be seen to be the independent product of the expert and uninfluenced as the form or content by the exigencies of litigation)’. Ms Hunter submitted that Dr Tait’s report was just that.

[63]Ms Hunter submitted that the claimant did not like Dr Tait’s conclusions. Dr Tait was quite correct not to change his report on the claimant’s request. She submitted that the Tribunal should be wary of the claimant’s suggestion that the opinions were not formed on the basis of questions asked. Dr Tait’s report should be accepted at face value.

[64]Ms Hunter suggested that where there was a difference in evidence, between Dr Tait’s opinions and the claimant’s evidence, Dr Tait’s report should be given greater weight.

[65]Ms Hunter accepted that the claimant had an impairment of which was a drop foot, and that this was long term. The first respondents did not accept that the claimant suffered from back pain at the relevant time. The claimant’s back pain was repeatedly referred to as intermittent, and from the claimant’s medical records, it could be seen that he did not attend his doctor in respect of back pain since August 2014. The claimant does not reference his back pain in the questionnaire.

[66]Ms Hunter then dealt with whether the impairment had an adverse effect on the claimant’s ability to carry out normal day to day activities. She referred to the Guidance on matters to be taken into account when determining questions relating to the Definition of Disability (the Guidance).

[67]Ms Hunter referred to Dr Tait’s report, and the questions asked of him and the opinion which he provided which she also referred to the claimant’s completion of a pre-employment questionnaire.

[68]Ms Hunter submitted that in the event that the Tribunal was persuaded that there was an adverse effect, then that effect was not substantial, she referred to section 212 (1) of the EqA, in the case of Anwar v Tower Hamlets College, and section B of the guidance. Ms Hunter submitted that Dr Tait’s medical report makes no mention of any difficulty in walking beyond changing gate. Dr Tait’s opinion about the change of the claimant’s gate was consistent with the claimant’s own evidence.

[69]Ms Hunter submitted that conversely, the claimant alleges he is unable to walk any distance without his splint, but his evidence in this respect was vague, and he was unable to confirm what the effect of removing his splint would be on his walking ability in terms of distance, as he does not walk without the splint. Further, Ms Hunter submitted that the claimant had not provided contemporaneous medical evidence to support his position. The claimant relied on the tests that were some twelve years old along with printouts from the internet in respect of that test. Ms Hunter referred to the case of Woodrup v London Borough of Southwark in which the ET held in the absence of medical evidence, there was no arguable case that the deducted effect of discontinuous of treatment would have a substantial adverse effect on the claimant’s day to day activities.

[70]Ms Hunter submitted that there was a similar situation in this case, the claimant has failed to prove disability in terms of the deducted effects without a splint with any particularly in respect of the impact on his day to day activities. He submitted that the Tribunal should prefer the clear opinion of Dr Tait in that the claimant was not limited to the distance that he could walk.

[71]Ms Hunter submitted that the claimant spoke about but be mindful about when he was walking on uneven ground, and the risk of tripping particular if there were cobbles, but theses were concerns other people would have and did not amount to a substantial effect on his ability to walk.

[72]Ms Hunter sought to distinguish the case of Banaszcyk. In that case there was clear medical evidence of the claimant’s ability to carry out the work activities which were affected by his impairment, but there was no such evidence here.

[73]Ms Hunter submitted that the claimant had given evidence that without a splint he would be unable to drive a manual car. He confirmed in cross examination that he would be able to drive an automatic car. She referred to section B of the Guidance which states that account should be taken of how far a person can reasonably be expected to modify his behaviour, for example by use of a coping or avoidance strategy to prevent or reduce the effects of impairment on normal day to day activities, she submitted that driving an automatic as opposed to a manual car would be one such coping strategy.

[74]Ms Hunter submitted that the claimant had failed to show that the effect was substantial. The first respondents accept that the effect of the drop foot was long term but that the claimant had not led sufficient evidence to support any finding of adverse effect of the claimant’s back pain would be long term. Ms Hunter submitted that the existence of the impairment itself was not sufficient, and the other aspects of the statutory tests needed to be satisfied. Submissions for the second respondents

[75]For the second respondents, Ms Wright confirmed that she agreed with much of the submission made by the first respondents and did not require to repeat all the points made. She did however take the Tribunal to the background, and the legal tests, which have to be considered.

[76]Ms Wright accepted that the claimant had drop foot. She did not accept that the claimant had the impairment of back pain, as there was no evidence to demonstrate that the claimant was suffering from back pain in the material claim.

[77]There was no issue taken with the longevity component in the statutory test for the purposes of the drop foot impairment. However, issue was taken with substantial adverse effect, and Ms Wright made reference to statements in Dr Tait’s report, which suggests that the claimant had not been prevented from performing any of his normal day to day activities. She submitted, that in making these comments, Dr Tait had been expressly asked in his letter of instruction to comment on the impact on the claimant’s impairment on his ability to carry out day to day activities and to comment on the measures taken to deal with it and the effect of stopping those measures.

[78]Ms Wright referred to Dr Tait’s email of 6 January (page 123 of the bundle) which makes clear that he understands the disability requirements by reference to the instruction letter and supplementary documentation provided to him by the claimant. Ms Wright referred to the experience which Dr Tait had, and the material which he had before him, and she submitted that Dr Tait’s report would tend to suggest the claimant was not suffering from a substantial adverse effect in his ability to carry out day to day activities. She submitted that the claimant’s challenge of Dr Tait’s report be disregarded as he had not been called as a witness to address those challenges; Dr Tait’s report should be accepted in its entirety.

[79]Ms Wright also referred to the medical questionnaire which the claimant had completed when commencing his employment with the second respondents, in which he failed to identify any issues when he was specifically asked about whether he experienced any difficulties in standing, sitting, walking or lifting. Ms Wright submitted the claimant had been unable to give any specific evidence as to the impact of his condition on his ability to carry out day to day activities with or without the use of a splint. He submitted that the claimant was unable to say with any degree of the specification what the impact of not wearing a splint would be on his ability to walk. He says little more that it would cause fatigue but was unable to say at what distances fatigue would affect him. There was nothing which amounted to a substantial adverse effect on his ability to carry out the normal day to day activity of walking.

[80]The claimant said that without a splint, he would walk with a high stepping gate. This was consistent with a report from Dr Tait, and it was submitted that this was not evidence of a substantial adverse effect on his ability to carry out normal day to day activities.

[81]The claimant stated that without his splint, he would not be able to drive a manual car or hold his HGV licence. It was submitted however that the claimant could drive an automatic car. Driving an HGV vehicle was not a normal day to day activity. Ms Hunter referred to the decision in Woodrup v London Borough of Suffolk, particularly paragraph 11 of that judgment, and paragraph 22 of that judgment it was sated; ‘in her statement of particulars, repeated in substance her statement to the tribunal, that if medical treatment were to be stopped, she would ‘deteriorate and full symptoms would return’ was little more than speculation’.

[82]In this case, there is clear medical evidence from Dr Tait that does not support the position advanced by the claimant. The Woodrup case makes it clear that the deduced effects case such as this, clear and particular evidence is required as to the effect on day to day activities without the measure in question. Ms Wright submitted no such evidence had been submitted by the claimant, and he could not satisfy the statutory test.

Consideration

[83]Section 6 of the Equality Act states:(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.

(2) A reference to a disabled person is a reference to a person who has a disability.

[84]Schedule 1 of the EqA provides at section 2 under the heading ‘long- term effects’ the following: (2) (1) 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 (c) it is likely to last for the rest of the life of the person affected.

[85]Under the heading ‘effect of medical treatment’, the schedule provides at section 5:(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities if – (a) measures are being taken to treat and correct it, and (b) but for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

[86]Section A of the Guidance makes provision for the meaning of impairment and provides the term mental or physical impairment should be given its ordinary meaning.

[87]The Tribunal began by considering whether the claimant had an impairment. There was no dispute in this case that the claimant has the impairment of left foot drop.

[88]There is a dispute as to whether he has any other impairments. The claimant submitted that has an impairment of back pain. The Tribunal was satisfied that the claimant did have the impairment of moderate chronic musculo mechanical back ache. This is the opinion provided by Dr Tait in his report of 13 January 2019.

[89]The Tribunal then went on to consider whether those impairments had an adverse effect on the claimant’s ability to carry out normal day to day activities? Dealing firstly, with the impairment of chronic musculo mechanical back ache, there was no evidence before the Tribunal upon which it could conclude that this had an effect on the claimant’s ability to carry out normal day to day activities. In reaching this conclusion, the Tribunal attaches significant weight to the conclusions in Dr Tait’s report, and his opinion that the claimant has not been prevented from carrying out any of his normal activities of daily living or household duties as a consequence of his back condition. In reaching this conclusion, the Tribunal also takes into account the claimant’s evidence to the effect that the condition is intermittent, and that he has not attended his doctors since 2014.

[90]The claimant suggested that his backache and drop foot may be linked, however there was no medical evidence, beyond the fact that surgery for sciatica pain may have caused the drop foot, to link the two on an ongoing basis.

[91]The Tribunal then went on to consider whether the claimant’s left drop foot impairment had an adverse effect on his ability to carry out normal day to day activities.

[92]In considering this, the Tribunal had regard to D 23, and B 12 to B 17 of the Guidance. That provides that if a person is receiving treatment or correction measures for an impairment, the effect of the impairment on day to day activities is to be taken as that which the person would experience without the treatment or measures. The Guidance provides that the practical effect of Schedule 1 paragraph 5 is that the impairment should be treated as having the effect it would have without the measures in question.

[93]B13. provides that this provision applies even if the measures result the effects been completely under control or not at all apparent. The example given at B 14, is that if a person with a hearing impairment wears a hearing aid, the question as to whether his or her impairment has a substantial adverse effect is to be decided by reference to what the hearing level would be without the hearing aid.

[94]The task for the Tribunal is therefore to assess the effect on the claimant of the impairment of drop foot when he is was not wearing his splint.

[95]The Tribunal made findings in fact as to the effect of the claimant’s impairment when he was not wearing a splint, as set out above. In reaching its conclusions on this the Tribunal considered the respondents submissions as to the effect of the Woodrup case. The Tribunal takes from that case that the claimant has to produce medical evidence and give evidence with some particularity as to deduced effects.

[96]The Tribunal was not persuaded the facts of Woodrup case were on all fours with this case. In the Woodrup case, there was no medical evidence to support the claimant’s statement that she would deteriorate, ‘and full symptoms would return’. This statement was said to be speculation on the part of the claimant in that case.

[97]In this case there is medical evidence before the Tribunal in the form of Dr Tait’s report to the effect that the claimant has an impairment of left drop foot; when he walks without his ankle/foot orthosis he walks with a drop foot deformity; when the ankle/foot orthosis is removed, he clearly has significant wasting of the muscles of his left calf which is about half the size of his right calf; that he has no active dorsiflexion of his left foot, ankle or great toe; that if he does not wear his left foot orthosis, then he has to walk with a high stepping gate and can occasionally catch his foot; and that his foot drop has persisted from the time he had back surgery and is a chronic disability.

[98]In addition to this, the claimant gave evidence with some particularity about the effect on his ability to walk, to carry shopping, and to drive, without the use of the orthosis, which, in the Tribunal’s view, could be distinguished, from a statement to the effect that the claimant would deteriorate, and ‘full symptoms’ would return.

[99]In considering whether the claimant’s impairment had a substantial adverse effect on his day to day activities, the Tribunal took into account the Guidance which provides a number of examples, although a non-exhaustive list of day to day activities. D3 of the Guidance provides that; ‘In general, day to day activities are things people do in their regular or daily basis, and examples include shopping, reading and writing, having a conversation using the telephone, watching telephone, getting washed and dressed, preparing and eating foot, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. Normal day to day activities can include general work-related activities, studying and education related to activities such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents and keeping to a timetable or shift pattern’.

[100]D4 provides that normal day to day activities are not intended to include activities which are normal only for a particular person, or small group of people. In deciding whether activity is a normal day to day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context ‘normal’ should be given its ordinary, everyday meaning.

[101]The Tribunal was satisfied, for the reasons given above, that if the claimant did not wear his splint, he would not be able to walk any material distance without experiencing discomfort and would be at risk of falling on rough or on uneven ground. The Tribunal also accepted the claimant’s evidence that he would be unable to carry any weight, because his balance would be affected if he were not wearing a splint, which would affect his ability to go to the supermarket and carry home shopping. The Tribunal also accepted the claimant’s evidence that he would be unable to drive a manual car without wearing his splint, as he would have insufficient control of the clutch. The Tribunal was satisfied that these activities, walking, driving and shopping for groceries, were normal day to day activities.

[102]The Tribunal then went on to consider whether the effect of the claimant’s impairment of those activities was a substantial adverse effect. The Tribunal considered the meaning of substantial adverse effect. The Guidance provides that the meaning given to adverse effect on normal day to day activities should be a substantial one, which reflects the general understanding of disability as limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one which is more than a minor or trivial effect. That is stated in the act at section 121 (2) of the Eqa.

[103]The Tribunal also obtained assistance from the case of Anwar v Tower Hamlets College, where the ET held that the effect of impairment was more than trivial but still minor, as opposed to substantial.

[104]Section B3 of the Guidance provides that another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which the person with impairment carries out a normal day to day activity, and the comparison is to be made with the way in which a person may be expected to carry out the activity compared with someone who does not have the impairment.

[105]Ms Hunter submitted that the effects which the claimant spoke about which having to take care on cobbled pavements and uneven ground when walking, were no different than that which would be experienced by other people.

[106]Ms Hunter submitted the claimant’s evidence as to how far he could walk was vague, as he never walked outside of his home without the splint.

[107]In this regard, however in this regard the Tribunal took into account section B9 of the guidance which provides ‘account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment or avoids doing things because of a loss of energy or motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining the question as to whether the person meets the definition of disability, it is important to consider the things that a person cannot do, or commonly do without difficulties.

[108]The claimant’s evidence was that he did not walk outside of the house without his splint, as to do so, would cause discomfort and difficulty in retaining his balance, particular on uneven ground, and cobbled streets, and the Tribunal accepted this. That evidence was consistent with the terms of Dr Tait’s report to the extent he stated that the claimant, without his splint, walked with a high stepping gait and could occasionally catch his foot.

[109]The Tribunal was satisfied that the claimant’s not walking out of doors without wearing his splint was explained by the fact that he found this difficult to do; the Tribunal was satisfied that it was because the claimant did not attempt to walk outdoors without a splint that he found it hard to estimate exactly how long he could walk without difficulty. It appeared to the Tribunal that the claimant was adopting an avoidance strategy in not walking out of doors with out with his splint, and therefore too much could not be taken from the fact that he was unable to accurately estimate the distance he would be able to walk out of doors without a splint. The inability to walk out of doors without experiencing difficulty is more than minor or trivial and satisfies the definition in the EqA.

[110]The Tribunal also accepted the claimant’s evidence that the difficulties which his left foot drop causes with his balance impacted on his ability to carry weight, and he would be unable to carry home shopping from the supermarket to his house if he was not wearing a splint. The Appendix to the Guidance provides a non-exhaustive list of factors which, if experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. That includes; ‘Difficulty picking up and carrying objects of moderate weight, such as a bag of shopping or a small piece of luggage, with one hand.’ Taking into account the Guidance, the Tribunal was satisfied that the inability to carry home groceries from the supermarket is an effect which is more than minor or trivial, and the Tribunal was satisfied that this satisfies the definition in the EqA.

[111]The Tribunal was also satisfied that the claimant was unable to drive a manual car.

[112]The Tribunal took into account the respondents’ submissions to the effect that the claimant should reasonably expected to behave in a way which would modify the substantial adverse effect of his ability to carry out the day to day activity of driving.

[113]The Guidance deals with this at B7. It provides that account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. Examples given in the Guidance include that when considering modification of behaviour, it would be reasonable to expect a person who has chronic backache to avoid extreme activities such as skiing. It would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such shopping or using public transport.

[114]B8 of the Guidance states that it would be reasonable to expect a person with a phobia to avoid extreme activities of situations that would aggravate their condition. It would not be reasonable to expect him or her to give up, or modify, normal activities that might exacerbate the symptoms. The example given in the Guidance is of a person with acrophobia (a fear of heights which can induce panic attacks) who might reasonably be expected to avoid the top of extremely high buildings, such as the Eiffel Tower, but not to avoid all multistorey buildings.

[115]Taking into account what is said in the Guidance, the Tribunal was satisfied that driving was a normal day to day activity, and that it would not be reasonable to expect the claimant to modify this by always having a manual car available to him. In reaching this conclusion the Tribunal also took into account that as indicated above, D3 of the Guidance provides that driving can be included as a normal work-related day-to-day activity. This lends weight to the conclusion that that driving is a normal activity of the type illustrated in the examples in the Guidance, which the claimant should not be expected to give up or modify. The Tribunal was satisfied claimant’s impairment of left drop foot had a substantial adverse effect on his ability to carry out the normal day to day activity of driving.

[116]There were no issues taken by the respondents as to longevity of the claimant’s impairment of foot drop, which is a final limb of the test.

[117]The Tribunal therefore concluded that the claimant was disabled, as a result of the impairment of left foot drop, in terms of section 6 of the Equality Act 2010, this case should proceed to a final hearing.

[118]If any party considers that a PH to consider case management issues is necessary, they should apply to the Tribunal for such a hearing to be fixed, within 14 days of the date of this Judgment.

Introduction

[1]The claimant lodged a claim with the Employment Tribunal on 4 May 2018, claiming disability discrimination. The respondent entered a response resisting the claim.

[2]This case came to a final hearing following a long procedural history, the details of which are recorded elsewhere and are not relevant to the issues to be decided at this hearing, with one exception.

[3]That relates to the decision of Employment Judge Docherty dated 15 June 2019, that at December 2017 the claimant was a disabled person in terms of section 6 of the Equality Act 2010, as a result of the impairment of left foot drop.

[4]By the time of this hearing, the following issues remained outstanding for determination by the Tribunal:a. Did the respondent know, or could reasonably have been expected to know, that the claimant had a disability?

b. If so, did the respondent discriminate against the claimant by treating the claimant less favourably than the respondent treats or would treat others because of the claimant’s disability in terms of section 13 of the Equality Act (direct discrimination), the alleged less favourable treatment being contacting the claimant’s employers (Blue Arrow) and requesting that they no longer assign the claimant to work at the respondent’s Scottish Distribution Centre.

c. If the Tribunal finds that the respondent knew, or was reasonably expected to know that the claimant had a disability, did the respondent discriminate against the claimant by treating the claimant unfavourably because of something arising in consequence of the claimant’s disability, which treatment the respondent cannot show was a proportionate means of achieving a legitimate aim in terms of section 15 of the Equality Act, the alleged unfavourable treatment being contacting Blue Arrow and requesting that they no longer assign the claimant to work at the respondent’s Scottish Distribution Centre.

d. Did the respondent discriminate against the claimant by applying to the claimant a provision, criterion or practice (PCP) which was discriminatory in relation to the claimant’s disability, where the PCP was emptying a trailer of yorks without assistance, that is which puts or would put those who do share the claimant’s disability at a particular disadvantage, and put or would put the claimant at that disadvantage; and the respondent cannot show it to be a proportionate means of achieving a legitimate aim, all in terms of section 19 of the Equality Act 2010.

[5]During the hearing, the Tribunal heard evidence from the claimant and from Mr Galloway, transport manager for the respondent. Their evidence in chief was furnished to the Tribunal through witness statements. The Tribunal was referred by the parties to a number of productions from a joint file of productions. These documents are referred to by page number in this judgment. Findings in Fact

[6]On the basis of the evidence heard and the productions lodged, the Tribunal finds the following relevant facts admitted or proved:

[7]The claimant is a qualified LGV transport driver, having held his LGV licence since 1991, and having made a living from LGV driving since 2008, since which time he has worked as a driver on a series of agency contracts.

[8]From 20 October 2017 to 15 December 2017, he was employed by Blue Arrow Ltd, which is an employment agency.

[9]The claimant initially contacted Blue Arrow Ltd for driving assignments because he was aware that they supplied drivers to the Co-op, where he had formerly worked. He attended at their offices on or around 9 October 2017 when he met with Ms Soreya Hakeem. He was advised that they were no longer supplying the Co-op but he was encouraged to put himself forward for an assignment with the respondent. This involved a security check and a driving assessment followed by an induction.

[10]During the interview, a medical questionnaire was completed (page 112-113). The questions were read out by Ms Hakeem, and the form was signed by the claimant. The “no” column was ticked in regard to all of the questions, including the following relevant questions: i. Does the claimant suffer from “back trouble or other muscle or joint trouble”; ii. “should we be aware of any matter affecting your ability to stand, sit , walk, lift, climb stairs, use your hands?” iii. “should we be aware of any matter affecting your ability to work at heights on ladders/staging, work in confined spaces, ability to drive a motor vehicle or mechanical equipment?” iv. to his knowledge did he have any physical mental or other condition that should be considered when offering him work.

[11]On 20 October 2017, the claimant attended at the respondent’s Scottish Distribution Centre (SDC) in Wishaw where he completed a successful driving assessment.

[12]On 22 October 2017, the claimant returned and undertook induction provided by Mr Paul McNulty (page 114 -120). This included training on safe systems of work protocols, include on loading and unloading of vehicles.

[13]The claimant commenced work with the respondent as an agency driver on 28 October 2017. This was a short term assignment to cover the peak period until Christmas.

[14]This assignment required the claimant to work independently and to drive to various locations, such as delivery offices, and be required to load and unload the vehicle which he drove.

[15]The claimant did not advise anyone of his impairment because he did not think they needed to know, given he was able to perform his duties. In particular, he did not advise Mr McNulty at induction of his impairment although staff are specifically asked during induction if there are any aspects of the work they may not be able to do due to a physical or mental impairment.

[16]Prior to 11 December 2017 he completed approximately 14 shifts, which included loading and unloading the vehicle.

[17]During this time the claimant saw Mr Galloway on two or three occasions at the transport/dispatch office. The claimant did not raise with Mr Galloway or with any other manager any concerns about his ability to undertake his job including loading and unloading.

[18]The task of loading and unloading for the respondent would require drivers to move so-called “yorks” – which were essentially two sided cages for transporting mail on four caster wheels – which would be full of mail, from inside the trailer to the tailgate of the vehicle or the docking bay at the rear of the vehicle. The yorks would be lowered using the tailgate or pushed down the docking bay and then taken to the appropriate location within the SDC. While it was possible for workers to get some assistance to do the maneuvering of the yorks whilst on the ground, the task of moving these yorks in and around the vehicle would be the task of the driver alone. This was because non-drivers are not permitted to enter the rear of the trailers due to the working at height regulations.

[19]It was the driver’s responsibility to load the trailer in a safe manner and then strap the load down and adhere to load plans. While not necessarily an easy task, this is normally understood not to be a two-man job but was performed regularly by single drivers.

[20]In or around the first week of December, Mr Galloway had cause to confront the claimant, as well as other agency drivers, regarding the state of their vehicles.

[21]On 11 December 2017, the claimant was tasked with taking an empty trailer to collect empty “yorks” from Perth. Once at Perth, staff there commenced the loading operation of empty cages onto the tail lift, which is a hydraulic powered platform attached to a trailer which can raise or lower a load into or from the trailer. The claimant raised the tail lift and moved the cases into the trailer.

[22]He then returned to SDC and was instructed to empty the trailer by Mr Hugh O’Donnell. He reversed the trailer to the warehouse door up to and against the door stops, to a dock leveller which is a hydraulic operated steel bridging plate which facilitates transfer of load from a trailer’s floor onto the warehouse floor and vice versa. He went inside the warehouse and started offloading the cages. The claimant had difficulty offloading the cages, because the straps had become tangled during the journey. He found this to be a troublesome and time consuming job.

[23]The claimant sought assistance from a warehouse manager but he was told that they were too busy to spare anyone at that point. The claimant understood that the trailer would be emptied by others later. He then collected his keys from the LGV unit, removed his digital card and collected his belongings. The claimant returned the keys to the loading bank and went to the transport/dispatch office.

[24]While at the transport/dispatch office the claimant was asked by Mr Jonathan Neilson whether he had emptied the trailer to which he advised that he had not. Mr Neilson requested that he complete the task of emptying the trailer. The claimant refused to do so and when asked again, retorted “Aye no fucking bother” and exited the office.

[25]Later that day or early the next day, the respondent contacted Blue Arrow Limited and informed them that given the claimant’s bad attitude, his swearing and his refusal to carry out a reasonable task before walking out of the office, the respondent did not wish him to return to work within the SDC.

[26]Around 10 am on 12 December 2017 the claimant had a telephone conversation with a member of staff at Blue Arrow when he was advised that he could not continue his assignment with the respondent because he refused the client’s instruction to fully empty a trailer of nested yorks.

[27]On 15 December 2017 (page 121) the claimant followed up that telephone call with a letter to Blue Arrow which included the following: “the day in question – Mon 11/12/2017 - after emptying some yorks from the Trailer – I approached a Warehouse Manager to ask him to provide assistance for me to empty the Trailer – he told me they were too busy at this time to spare any one – I advised that I cannot manage the task myself – he advised he did not expect me to do so and if I leave the Trailer he will have it emptied later. I collected my belongings from the Vehicle and proceeded to the Transport Office where I was asked whether I had emptied the Trailer I advised that I had not as there was no one to provide assistance due to me having a “bad leg and bad back” I did not empty the trailer further. A character lounging in a seat in the back of the office (I believe he was a Mr Stevie Galloway (Spelling excepted) “retorted”:– You cannot work for me in my business if you can’t empty the trailer” to which I responded:- “No bother” and exited the premises after a debrief of my working day. I believe even a fully able bodied person would struggle to empty “nested Yorks” in a safe manner. I was never provided with training or sight of a risk assessment for such a task and thereby I was left with no option but to refuse to empty the trailer due to a high risk of injury – if I continued with the unloading of the Vehicle. I am left to ponder on whether I was discriminated against due to my disability or victimised because I was an agency worker or both. I am somewhat bemused that no representative from Blue Arrow Ltd has approached me to ask my version of events some 5 days later. Accordingly I will be terminating my Contract with Blue Arrow and please accept this letter as my resignation letter and a formal complaint of Royal Mail Groups actions towards me”.

[28]By letter dated 19 December 2017, the Executive Manager for Blue Arrow wrote to the claimant in response, including the following: “I am sorry to hear that you felt that your assignment was not a positive one and that you have now handed in your resignation to Blue Arrow, we will raise your concerns about the matter directly with the client. In your letter, you state that you have a disability that prevented you from emptying the trailer. After reviewing your application form I can see that this was not disclosed at the time of registration, should this have been the case we would have made the client aware so that any reasonable adjustments to the assignment could have been made on your behalf”.

[29]The respondent became aware only after the claimant had ceased working for the respondent that he has a physical impairment. That impairment is a left foot drop which is supported by a splint which is not normally visible to others.

Relevant law

[30]Section 13 of the Equality Act 2010 states that a person A discriminates against another B if because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[31]Section 15 of the Equality Act 2010 states that a person discriminates against a disabled person if he treats the disabled person unfavourably because of something arising in consequence of that person’s disability; unless it can be shown that the treatment was a proportionate means of achieving a legitimate aim.

[32]Section 19 of the Equality Act 2010 states that a person A discriminates against another B if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of Bs. A PCP is discriminatory if a) A applies or would apply it to persons with whom B does not share the characteristic; b) it puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; c) it puts or would put B at that disadvantage; and d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[33]The relevant protected characteristic in this case is disability. Claimant’s submissions

[34]The claimant made oral submissions as follows. He stressed that we should not accept the evidence of Mr Galloway for a number of reasons. In particular, he got agitated while giving evidence; his memory about the incidents was vague; and that he did not want to be pinned down. This was in particular in regard to the alleged confrontation with the claimant about the state of his vehicle. Mr Galloway could not say when that took place, although the claimant only worked week-ends and Mr Galloway’s evidence was that he only occasionally worked week-ends.

[35]Mr Morton stated that he had not seen the advert for the job because he was not responding to a job advert but in any event Mr Galloway confirmed that loading and unloading was not on the role requirements for the job.

[36]His position was that he had not received training as stated in the letter dated 15 December 2017, by which he meant that he had not had training on how to empty a trailer with nested yorks.

[37]Further Mr Galloway did say that warehouse staff do load and unload trailers. He relied on the safe system of work directions, specifically page 11, that this was a two man job. He says this is the situation in which he found himself, that is that he could not separate the yorks because of his bad leg and specifically could not use force; while he could push better, he could not pull. This was why he sought assistance. He said that he did not know it was a two man job if he was having a problem. The problem he had with the red straps is clear from page nine of that protocol. He said that he had loaded the yorks one at a time but that once he had travelled for 30 miles the yorks had become hooked together. He takes from this risk assessment document that there have been issues with this is the past.

[38]He submitted that Mr Galloway was vague about who was in the office at the time of the incident. He was not even certain about the role of Mr Neilson, or what he said, and given that, the respondent could have called him to give evidence.

[39]Yet in relation to some issues his memory had improved, and in particular at paragraph 23 of his witness statement he remembers the details of the discussion with Blue Arrow.

[40]Mr Morton submitted that Mr Galloway contradicted himself with regard to the number of times that he had met the claimant; and when questioned about when he was said to have had the conversation about the state of the van, in his witness statement he said that it was a week before the incident on 11 December, but in evidence he said that it was a few days before. However, the claimant only worked at the week-ends, and Mr Galloway said that he only occasionally worked weekends, so it could not have taken place.

[41]With regard to his claims under the Equality Act, he complained that he had suffered less favourable treatment because of his disability. He referenced Mr Galloway’s evidence who said that others in a similar situation were offered lighter duties. When he told Mr Galloway he had a bad leg and a bad back, that was his cue to have a discussion with him to determine if he had a problem; he had a duty to make enquiries when he saw that he was not coping and to help the claimant when he was in need of assistance. Instead he said that if he could not do it on his own that he was not good to him in his business.

[42]With regard to the question of knowledge, the claimant having advised Mr Galloway that he had a bad leg and a bad back, he had a duty to make enquiries about that and had he done so he would have got the knowledge which would have determined that he was disabled.

[43]With regard to the claim under section 15, the claimant said that his limitations had arisen from his disability and had the respondent done the responsible thing, they would have known about his disability, but instead they treated him unfavourably because of his disability.

[44]With regard to the claim under section 19, he said that he was disadvantaged by the requirement to empty the trailer himself, which would not be a problem for someone who did not have that disadvantage. The safe system of work directions support his argument that the task requires that two people are available, but Mr Galloway said that it was a one man job.

[45]Mr Morton asserted that he had responded to the medical questionnaire honestly as he understood it, given the way that the questions were asked, which gave him the flexibility to answer them in the way that he did, and he told them what he thought that they needed to know. Respondent’s submissions

[46]Dr Gibson made oral submissions summarising written submissions which he lodged. He first set out the issues for determination.

[47]On the question of knowledge, he submitted that this matter should be dealt with first, because if the answer is no, then the claimant’s claims under section 13 and section 15 do not require further consideration. Section 15 explicitly states that it will not apply if the respondent does not know or could not reasonably be expected to know that the claimant has a disability. With regard to section 13, relying on Patel v Lloyds Pharmacy Ltd

UKEAT/0418/12

, he asserted that since the disability itself must be the conscious or subconscious reason for the treatment, there must be some evidence that the employer knew of the disability.

[48]With regard to section 19, if it is shown that the respondent did not know, such a finding would cast significant doubt on the claimant’s position that emptying a trailer of nested yorks without assistance did actually put him at a particular disadvantage in comparison with others, because if he had you might have expected him to have made his employer aware of that issue from day one.

[49]EJ Docherty determined in her decision of 15 June 2019 that the claimant was disabled as a result of the impairment of left foot drop, not anything to do with a sore back. She made that finding assessing the claimant’s abilities in the context of him not wearing a splint, in line with part 5 of schedule 1 of the Equality Act.

[50]However when this Tribunal is assessing the question of whether or not the respondent knew or could reasonably have been expected to know that the claimant had that specific disability, they have to approach the question on the basis that at all times and in all places at work the claimant was wearing his splint. That is not a matter in dispute.

[51]The respondent relies on the following evidence to support their submission that the respondent did not know of the claimant’s disability (or could not reasonably be expected to know): i) The claimant ticks no to every question on the medical questionnaire which asked about past medical issues and anything which may impact on his ability to do the job; ii) Blue Arrow assigned him to the respondent having no knowledge whatsoever of the impairment of left foot drop; iii) The initial Blue Arrow Advert describes that role as including loading and unloading and working with efficiency and autonomy viz independently or by yourself; iv) The claimant did the role for eight weeks without issue; v) The claimant accepts that at no time during his induction training did he raise any issue at all in regards to his ability to perform any aspect of the role, or make reference to any impairment; vi) With his splint the claimant walks normally and with no outward sign of any issue; vii) He wore a splint at all times at work; viii) The respondent’s position is that the claimant did not mention any issue with a bad back or bad leg on 11 December 2017, a position supported by Blue Arrow’s response that the respondent advised them not to send him to them because he had refused to empty a trailer of nested yorks; ix) The letter from Blue Arrow makes it clear they had no idea until 15 December that the claimant had an impairment; x) The claimant worked with the respondent without issue for two months, during which time the claimant would have loaded and unloaded trailers himself; xi) The medical report states that the claimant is not limited in his activities of daily living and is not prevented from performing any of them as a consequence of his back or leg condition, which begs the question how the respondent’s staff were meant to know he had a disability; xii) If the claimant himself did not know he had a disability, how could the respondent? At the PH before EJ Gall on 13 December 2019 the claimant said that in December 2017 he did not know that he had a disability, seeking to provide an explanation why he had not raised certain Equality Act claims timeously. He said that he was aware that he had a physical impairment but not a disability; xiii) Notwithstanding, he states on 15 December 2017 that he is left to ponder whether he was discriminated against due to his disability, using the decision on 12 December 2017 that he was not welcome back due to his attitude, to take the opportunity to manufacture this spurious claim; xiv) Even if the Tribunal accepts that the claimant did say he had a bad leg and bad back, this does not support a finding that the respondent knew the claimant had a disability. He had not asked for alternative duties before, requested an OH assessment or reasonable adjustments; xv) Mr Galloway gave convincing evidence about what might have happened if the claimant had told them he had a disability, that he would routinely make adjustments and change duties to comply with the Equality Act; xvi) That statement is not enough; he may have hurt his back and leg the previous week so that it would be a temporary condition; xvii) The claimant did not give them the opportunity to investigate further.

[52]If the Tribunal is not with him, Dr Gibson asks the Tribunal to find that the reason the claimant was asked not to return was not because of his disability but because of his bad attitude, refusal to carry out a reasonable management instruction and swearing at a manager. In support of that submission, he asked the Tribunal to prefer the respondent’s evidence given this is what the claimant is told by Blue Arrow; it was simply not plausible that an agency driver would be asked to do the task if it was contrary to health and safety; had the respondent been told about the bad leg and the bad back they would have immediately wanted to know from Blue Arrow why they had not told them. If any agency worker without a disability had acted in that way, they would have been treated exactly the same as the claimant.

[53]In the section 15 claim, the respondent does not concede that what the respondent did was unfavourable treatment. In particular, the respondent saying that they did not want him back is not sufficient to meet the test of unfavourable treatment. The claimant could have continued to work for Blue Arrow if he had wished. Even if it was unfavourable, it did not arise in consequence of disability, but rather the claimant’s bad attitude. Even if it did, the treatment was a proportionate means of achieving a legitimate end, namely to have able bodied individuals unload nested yorks at the busiest time of the year. Finding that he could not, with only two weeks of the assignment left, it would have been proportionate to tell Blue Arrow that they no longer required the claimant’s services.

[54]With regard to the indirect discrimination claim, Dr Gibson submitted that the PCP did not put persons with the same disability as the claimant at a particular disadvantage, and did not put the claimant at a particular disadvantage. This is because as the evidence progressed it became clear that the claimant was seeking assistance because of red straps which he says caught on the yorks. The untangling of those straps does not appear to be a task which someone with a drop foot whilst wearing a splint would struggle with to any greater extent than someone who did not have a dropped foot whilst wearing a splint.

[55]The question whether a PCP puts a claimant at a disadvantage does not require to be assessed as if the claimant were not wearing a splint. This Tribunal has to assess whether the respondent requiring the claimant to empty a trailer of nested yorks without assistance put him at a particular disadvantage. He argued that the Tribunal is entitled to approach that question from the angle of what the claimant can do whilst wearing his splint. He submitted that the evidence shows that the claimant demonstrated for a period of some two months that being required to empty a trailer or nested yorks without assistance did not place him at any disadvantage. He could do it, as others with or without his disability could. He said that he could load the yorks, but his position that the process of unloading was different is not credible. These yorks would have been pushed, pulled and manipulated in all ways when both loading and unloading, but in any event the issue seems to be related to straps, which could have easily been untangled by the claimant himself and then the yorks freed one at a time.

[56]In any event, the safe system of work directions clearly show that the PCP was a proportionate means of achieving a legitimate end, namely of getting the work done as economically and safely as possible. An individual would require to move at most three yorks at a time; Mr Galloway said that he had no issue with one being moved at a time. It was the respondent’s busiest time; it is not surprising there was no-one to assist him; it was entirely proportionate for the respondent to ask the claimant to do this. The claimant’s reference to the safe system of work provisions has only now been referenced in his submissions. The claimant however did not say at the time that he needed assistance because that was a health and safety requirement.

[57]With regard to remedy, the respondent has no contractual relationship with the claimant. In any event the claimant resigned of his own choice from his employer Blue Arrow, but all that occurred was that he was removed from that one assignment. Damages against the respondent would be incompetent as there is no contractual relationship to pay wages (and in any event the claim having been settled against Blue Arrow, would not be just and equitable/represent a windfall). There were no injury to feelings, since the claimant simply moved on to up his hours in another job he was already doing in tandem. There is no evidence that he was affected in any way. Tribunal’s deliberations and decision Observations on the witnesses and the evidence

[58]The Tribunal only heard evidence from two witnesses in this case, the claimant and Mr Galloway, the respondent’s transport manager.

[59]We found the claimant to be hesitant and evasive when answering questions. We agreed with Dr Gibson that he sought to down-play his impairment when it suited him, or to emphasise it if that suited his ends. Further, we found that he was liable to be obtuse if it suited him. One example of this is his semantic explanation about what he meant when he said that he had not had training. It is however most clearly illustrated by his explanation that he had completed the medical questionnaire honestly, when it was quite clear that he set out to mislead Blue Arrow and in turn the respondent. He tried to suggest that he was answering the questions honestly but that involved him being deliberately obtuse about the import of the question, for example saying that he had no back trouble on that date when it was clear that it was the claimant’s medical history which was of note.

[60]Indeed, the claimant said in terms in evidence that he did not tell Blue Arrow about his impairment with his leg because he thought that if he did then it would affect his chances of getting a job. He was of the view that he did not need to tell them about his impairment because it did not prevent him from doing the job which he had been doing for twenty years. He said that he thought it was a “prying question” which they did not have the right to ask. He thought that he had the right to answer in this way because his impairment did not stop him from doing the work; and that if he had told them, then they might not have given them the job. As he could walk without issue (and do the job perfectly well) they had no need to know. He went on to say that he had his limits and he reached them that day.

[61]While the claimant may well have believed that to request such information was a breach of his privacy (although that is debatable given the potential impact on others) what he certainly does not have the right to do is to withhold the information and then subsequently seek to rely on it in a claim before this Tribunal. As Dr Gibson put it, he can’t have his cake and eat it.

[62]The claimant said that he did not consider himself to be a disabled person. He said in evidence to this tribunal that he considered he had an impairment but not that he was a disabled person, which appears also to have been his evidence in a previous preliminary hearing before EJ Gall. However we thought that it was significant to note that as at 15 December 2017 he described himself as disabled.

[63]As is clear from the finding in facts, we did not believe the claimant when it came to the dispute about what was said upon leaving at the end of his shift on 11 December. Given that he had gone out of his way not to tell Blue Arrow about his impairment, and indeed the respondent before that date, we thought that it would be surprising to say the least if he were to have told them about his leg on that occasion, given then he had deliberately chosen to keep quiet about it prior to that.

[64]His position was that he said that he had a bad leg and a bad back. It did not ring true for us at all that this is what would have been said. We thought that had he done so this would have been followed up by Mr Galloway, not least because as the claimant accepts this would have been the first time he had heard anything about this.

[65]We found Mr Galloway to be a well-informed and experienced transport manager. We thought that he would have no reason to lie to the Tribunal. We accepted Dr Gibson’s submissions, when it came to a key disputed passage of evidence that on the day of the incident what the claimant said to Mr Galloway and his other colleagues was to be preferred.

[66]We also believed Mr Galloway when he said that he had a confrontation with the claimant shortly prior to this incident. While we accepted that his memory was vague, we thought that it was inevitable that he would not remember the details, or even the date, given that it was a very busy time of year, and that he was dealing with large numbers of staff, including agency staff. He remembered that he had spoken to a number of agency drivers.

[67]We thought too that it was clear that the claimant had a grudge against Mr Galloway and that it was more likely than not that was because he had taken him to task about the state of his vehicle. We noted this from the way that he questioned Mr Galloway in this hearing but not least from the claimant’s pleadings on page 7 where he described Mr Galloway as “a character lounging….” which we thought was rather telling way to describe him, given this is a formal claim form.

[68]We found that the claimant was prepared to lie when he thought this was in his best interests when he was seeking assignments with an agency, and so we find that he is prepared to lie to the Tribunal because that serves his interests.

[69]For all these reasons, where there was any dispute between the evidence of the claimant and Mr Galloway we preferred the evidence of the latter. Disability discrimination

[70]Although the claimant had initially pursued claims against both this respondent, and Blue Arrow, his employer, which claims had been combined, he subsequently withdrew the claim against Blue Arrow. However there was no dispute that a valid claim lay against this respondent, in terms of section 41 of the Equality Act 2010.

[71]This is a claim only for disability discrimination. As set out in the introduction, the claimant claims direct discrimination because of disability (section 13); discrimination arising from disability (section 15) and indirect discrimination (section 19).

[72]It is clear from our findings in fact that we did not believe the claimant’s evidence. Therefore, the answers to the legal tests when these facts are applied to them are, perhaps unusually in a disability discrimination case, relatively straightforward.

[73]It is appropriate for us to first consider the knowledge question, because any section 15 claim could not proceed unless the respondent had knowledge of the disability; and under any section 13 claim, an action by a respondent will almost certainly not be “because of disability” where a respondent does not know that the claimant is disabled.

[74]We had no hesitation in concluding that the respondent was not aware, and could not have been expected to know, that the claimant was a disabled person for the purposes of the Equality Act.

[75]This was because the claimant had completed a medical questionnaire without making any reference to his impairment; he deliberately did not tell Blue Arrow about his impairment or medical history; he did not tell the respondent at induction or at any other time while he was engaged with them that he was disabled; even if he had said he had a “bad back and a bad leg” (which we did not believe) this in itself would not have even put the respondent on notice that he had a disability; he did not wait around in any event to give the respondent any opportunity to investigate his assertion; further Blue Arrow made no mention of the respondent having said this to them when they were contacted to terminate the engagement (which would have been what was expected); he had undertaken the job during around 14 shifts in the previous eight weeks; his impairment did not impact on his ability to do the loading and unloading, which he had done on those shifts; the medical report lodged for previous hearings makes it clear that with the auxilliary aid the impairment did not impact on his daily activities; at all times while he was working he worn his splint and by his own evidence it did not impact on his appearance while walking so that his impairment was not visible; given that, the respondent’s staff could not have detected his impairment, which was his intention; he claims that he did not know himself that he had a disability until he was made aware of that by the medical report (although he did suggest that his treatment may be due to his disability in the letter of 15 December); he had previously made no request for adjustments, for an occupational health assessment or alternative duties; and we accepted Mr Galloway’s evidence that if he had then steps would have been taken as was common practice.

[76]For all these reasons, we did not accept that the respondent knew that the claimant was disabled, or that the respondent had any reason to know or believe the claimant to be disabled. We accepted Dr Gibson’s submissions, that although there is no specific provision in section 13 that states that a respondent must know that a claimant is disabled to be liable, if a respondent does not know that a claimant is disabled it is very difficult to see how a respondent could treat him less favourably because of a disability that he does not know about.

[77]For these reasons, the claimant’s claim under section 13 cannot succeed.

[78]Turning to the section 15 claim, we did not accept Dr Gibson’s submission that to remove the claimant from the assignment was not unfavourable treatment. While this was just one assignment with Blue Arrow, and there was nothing to prevent him continuing to work for them, this might have been the best assignment or the most lucrative assignment, so that we were of the view that terminating the assignment was in principle a form of unfavourable treatment.

[79]We did however accept that the unfavourable treatment was not for a reason arising from his disability. We have found as a matter of fact that the claimant was removed from his assignment because of his bad attitude, his refusal to accept a reasonable instruction, and because he swore at a manager. We do not accept that it was because he could not do his job for reasons which arose as a consequence of his disability. But in any event, as discussed above, section 15 makes it clear that a respondent had to know, or that the circumstances point to the fact the respondent ought to have known that he was disabled, and we did not accept that.

[80]The claimant could not therefore succeed in his claim under section 15 of the Act, even if we were to find that there was unfavourable treatment, because the respondent did not know he was disabled, and because in any event any unfavourable treatment did not arise in consequence of his disability.

[81]Dr Gibson was alert to the fact that there is no specific or even implicit requirement for knowledge in order for a claimant to succeed under section 19. So that to say that the respondent did not know is not a complete answer to the claim under section 19. We did not agree with Dr Gibson that the fact that if the claimant had difficulties emptying yorks he would have told the respondent about his disability was a relevant factor in determining whether there was a breach of section 19 (although we have no doubt that knowledge it would be a relevant factor in the objective justification question).

[82]We accepted that the requirement to unload a tailer of nested yorks without assistance was a PCP.

[83]We questioned Dr Gibson’s submission that unlike the question for determination by the Tribunal to assess whether the claimant is disabled, it is appropriate for us to approach the particular disadvantage question from the angle of what the claimant can do whilst wearing his splint.

[84]Dr Gibson provided no authority to support that submission. We were however aware that section 6 must be interpreted with the relevant schedule. We note that the provisions in section 19 make reference to a “relevant protected characteristic”. That protected characteristic in this case is disability, and the reference is not to a person’s impairment, but the pool would contain others who share the same disability which we take to be with a dropped foot. We were also aware for the purposes of the reasonable adjustments duty at least, the question whether there is substantial disadvantage is to be determined without taking account of any adjustments including auxiliary aids.

[85]We would be prepared to accept that in principle those who shared the same disability as the claimant would be put at a particular disadvantage by the PCP in terms of section 19(2)(b). Whether it would put the claimant at that disadvantage (for section 19(2)(c)) (given his medical aid) is perhaps a different matter, although we are aware that the “reason why” is irrelevant to the question whether there is disparate impact.

[86]This is a very interesting question which, if it had been necessary, we would have explored further. However that point in this case, interesting though it is, is academic given our findings in fact.

[87]Specifically, while there was some lack of clarity about what exactly the claimant was saying that he could not do, and we noted that even Mr Galloway seemed confused about the reference to “hooks”, we came to the view on the basis of the evidence that we heard that the real problem for the claimant was that the straps of the empty yorks had got tangled.

[88]In particular, we noted that these events took place at the end of the day, when the claimant was due to come off shift. We have concluded that he was simply not prepared to take the time that was needed to finish the task at hand. But even if he had needed assistance with it, he would have made that clear to the relevant managers when he was handing in his keys, and he would have been much more conciliatory with his managers as regard the need for assistance to complete the task before leaving that day.

[89]We noted that the claimant referred us (in submissions) to page 11 of the SSOW protocol (document 177) which states that “nested yorks must be loaded and unloaded over a dock leveller either by a single person (maximum 3) or two people (maximum 5). This may require undoing York straps and moving the containers individually where there is difficulty. Two people should be available to help free nested yorks within the vehicle if required, taking care to avoid trapping fingers between yorks”.

[90]The claimant said that this was the situation he found himself in. We accepted Dr Gibson’s submission that this was the first time this was raised and this is not what the claimant sought to rely on at the time of the incident.

[91]In any event, we took it from the evidence that in fact the problem was nothing to do with pushing or pulling in regard to unloading the yorks. We got the very clear impression that his difficulties were caused by the red straps having got tangled during the course of the journey from Perth and that the untangling of the tasks was a “troublesome”, time consuming and frustrating task. We did not accept that the task “require[ed] a great deal of leg power and good footing to overcome the yorks resistance”. We did not accept in relation to this specific issue that “there are times where brute force is required and more than one person is required to provide it”.

[92]We therefore accepted Dr Gibson’s submissions that the claimant’s impairment did not particularly disadvantage him in regard to the task at hand. We have found as a matter of fact that the claimant had done his job, of driving and loading and unloading yorks, for some eight weeks without incident, and so we concluded that the claimant, and indeed those sharing his disability, would not be particularly disadvantaged by that requirement. The claimant’s claim under section 19 cannot therefore succeed.

[93]Indeed, we accepted Dr Gibson’s submission that the most plausible explanation for the claimant’s conduct was not his disability at all but the fact that he did not need the job; he was upset that he had been taken to task about the state of his vehicle; that he was at the end of his shift and the unloading of the yorks was too time consuming when there was no-one available to assist. We thought that the claimant would otherwise have been much clearer with the respondent’s managers in explaining why he could not complete the job at that time had it not been for lack of commitment to the engagement.

[94]The claimant’s complaints under the Equality Act 2010 are not well-founded and therefore the claim is dismissed.