Mr G Campbell v South Lanarkshire Leisure and Culture Trust: 4107744/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4107744/2019

Venue Glasgow

Hearing 23 and November 2020

Between

Mr Gerard CampbellClaimant

South Lanarkshire Leisure and Culture TrustRespondent

Before

Employment Judge L Wiseman

Mr R Byrom (instructed by Solicitor) for claimant

Mr S Healey (instructed by Solicitor) for respondent

Date 22 May 2023

JUDGMENT

The Tribunal decided the claimant is a disabled person in terms of section 6 Equality Act, and that he was so at the material time of the alleged discriminatory acts.

REASONS

[1]The claimant presented a claim to the Employment Tribunal in which he complained of unfair dismissal; wrongful dismissal and discrimination because of disability.

[2]The respondent entered a response to the claim in which it accepted the claimant had been dismissed for reasons of conduct, but denied the dismissal had been unfair. The respondent considered it had insufficient information to conclude whether or not the claimant was a disabled person in terms of section 6 of the Equality Act, and they put the claimant to proof on that point.

[3]The purpose of this Preliminary Hearing was to determine whether the claimant was a disabled person, within the terms of section 6 of the Equality Act, at the material time of the alleged discrimination.

[4]I heard evidence from the claimant, his wife and Dr Millings, a Consultant Clinical and Counselling Psychologist. I was also referred to a number of documents. I, on the basis of the evidence before me, made the following material findings of fact.

Findings of fact

[5]The alleged instances of discrimination took place on 21 December 2018 (the fact finding investigation), 22 March 2019; 3 April 2019 (the decision to dismiss) and 23 August 2019 (when an issue arose regarding access to emails).

[6]The claimant was employed as the General Manager of the respondent. The claimant’s health and family life were generally good and he enjoyed the challenges of work and had good relationships with colleagues and customers over many years.

[7]The claimant’s health started to deteriorate in or about 2016 when he was faced with a series of life changing events in terms of his family. The claimant’s stress levels and blood pressure were high in December 2016 and he suffered a retinal occlusion in his left eye. This was treated but the claimant was left with blurred vision in that eye. The claimant remains worried about the prospects of this happening in the other eye.

[8]The claimant’s father was diagnosed with cancer in 2016 and experienced periods of remission and recurrence before passing away in August 2019.

[9]The claimant’s wife has an autoimmune liver disease and the damage to her liver was having a significant impact on her health. Mrs Campbell had to take ill health retirement in February 2015 when it was made clear to her that she would require a liver transplant at some point. Mrs Campbell’s health continued to deteriorate and the claimant was required to take on more of the everyday management of their lives.

[10]Mrs Campbell had a liver transplant in December 2017 and her recovery from this was slow and not straightforward. She subsequently suffered an episode of sepsis in October 2018.

[11]The claimant’s son was struggling, at this time, with mental health issues and finding it difficult to find suitable alternative employment.

[12]The claimant found work more stressful in the early part of 2017. He was concerned that he was finding it difficult to cope with the various issues in his home life, which meant that he was not operating at work at the same level as previously. The claimant felt he was not taking things in his stride, and tending to dwell on small issues, and was unable to move on. He was not sleeping well which impacted on his ability to concentrate and focus at work.

[13]The claimant experienced a problem at work in September 2017 regarding the placing of a contract. This matter was investigated and resolved. The claimant found the process of the investigation very stressful and felt that he struggled to explain his position clearly.

[14]The claimant attended his GP on the 12 October 2017 and was diagnosed with stress and anxiety. He was prescribed Sertraline and referred to Dr Millings. The claimant attended three sessions with Dr Millings in the period November/December 2017. Dr Millings left matters on the basis the claimant would seek another appointment if required, failing which he would be discharged. The claimant did not see Dr Millings again until 2019.

[15]Dr Millings sent a report to the claimant’s GP dated 19 December 2017 (page 40). The report noted the “presenting problem” was threefold. One issue related to the claimant’s wife’s state of health; another related to his son who had drifted from job to job and situation to situation with no focus on anything meaningful to his wellbeing in life. The third concern related to work and pertained to an error of judgment on his part in relation to one of the workers he managed. This had resulted in an investigation. Dr Millings noted that Cognitive Behavioural Therapy and other techniques had been used to address these difficulties. The report noted things improved for the claimant when he knew his wife had been offered and accepted a liver transplant, and when the primary situation at work had been resolved. It further noted that socializing with friends and a family holiday were positive activities to bolster his resilience and wellbeing.

[16]In February 2018 the claimant was called on to deal with a problem at work involving conflict between two members of staff. A staff grievance was subsequently raised and the claimant was suspended from his post in November 2018, whilst an investigation was carried out into the handling of the grievance.

[17]The claimant saw his GP again in March 2019, when the dosage of Sertraline medication was doubled. A letter from the claimant’s GP to Occupational Health, dated 21 March 2019 (page 43) referred to the claimant “currently suffering from anxiety, depression, anhedonia and poor concentration”. The letter noted the claimant’s wife had been extremely unwell for most of last year and that this had caused an exacerbation of his symptoms.

[18]The claimant was signed off as unfit for work by his GP in March 2019.

[19]The claimant was dismissed from employment on 3 April 2019.

[20]The claimant described feeling stressed and anxious from September 2017 onwards. He had (and still has) problems sleeping and struggled to concentrate and focus on tasks and at work. The claimant provided a Disability Impact Statement (page 32) in which he described the impact of the impairment. The claimant referred to lack of/disturbed sleep and to problems concentrating on tasks and at work. The claimant struggled to stay focussed during conversations and found it difficult to contribute. He also avoided attending meetings or delegated someone to attend on his behalf.

[21]The claimant struggled to remember facts and details, and struggled to think clearly, make decisions and process information. He has low self confidence and avoids socialising. The claimant avoids situations where people might ask about his health and wellbeing: he, for example, ceased having an open-door policy at work and cancelled one-to-one meetings with staff. The claimant enjoyed keeping fit and playing five-a-side football. He stopped playing with the football group which comprised mainly colleagues from work. The group he now plays with includes some former colleagues but the majority of the group are unrelated to work.

[22]The claimant believed that without medication the feelings of panic and being unable to think clearly would increase and that he would not be able to cope with the simplest of day-to-day activities.

[23]The claimant accepted that throughout these events he has been able to shower, dress, cook and clean.

[24]Dr Millings prepared a report for the purposes of this hearing (page 52). Dr Millings confirmed in that report that from her consultations with Mr Campbell in 2017, it was evident that he was experiencing “great stress” and that it was not unexpected that he would have required anti-depressant medication as the most important aspects of his life were being severely negatively impacted. Dr Millings noted that one of the major symptoms of depression was disturbed sleep and that when an individual is sleep deprived his capacity to concentrate becomes impaired there is irritability; withdrawal from social activity and memory impairment. Dr Millings considered there would be evidence of distraction and lack of clear thinking.

[25]Dr Millings referred to the effects of the condition being varied at different points in time, but was of the opinion that there was no period during which the claimant was fully free of his symptomatology sufficiently to be able to recover. Dr Millings also referred to the claimant now having a propensity for anxiety, stress and depression and being more prone to relapse into one or more of these states depending on his current situation.

[26]The report also referred to the fact anxiety impedes memory, and the more anxious Mr Campbell became, the less ably he would function. Dr Millings spoke of a downward spiral against the backdrop of his wife’s situation and the issues at work.

[27]Dr Millings acknowledged her letter to the claimant’s GP in 2017 suggested that with the resolution of the first workplace issue, the claimant seemed to be in a better place. She did not then see the claimant again for 19.5 months.

[28]Dr Millings accepted that anyone facing the family situation which the claimant had to deal with, would feel stress and anxiety, but to differing degrees. She explained the effects for the claimant were cumulative, and exacerbated by a loss of control over the situation. Claimant’s submissions

[29]Mr Byrom referred to section 6 Equality Act and the definition of “disability”. He also referred to the case of Goodwin v The Patent Office

UKEAT/57/98

and Cruikshank v VAW Motorcast Ltd

2002 ICR 729

as authority for the position that the assessment of disability is at the time of the alleged acts of discrimination.

[30]Mr Byrom submitted the material time was December 2018 to 14 November 2019, which was the date of the outcome of the appeal against dismissal, which the claimant asserted was discriminatory.

[31]The claimant had, since October 2017 and at various points thereafter, advised the respondent of the impairments. The Tribunal should note the respondent had not led any evidence to contradict this.

[32]The claimant had a mental impairment (stress and anxiety). Mr Byrom referred the Tribunal to the GP records and the medication prescribed and Dr Millings’ report. The key issue for the Tribunal was to consider the effect of the impairment and what the person could not do (J v DLA Piper UK

UKEAT/0263/09

at paragraphs 38 and 40).

[33]Mr Byrom submitted the psychological report made clear that because of the claimant’s mental impairment, his ability to carry out normal day to day activities would suffer and require more effort to perform. The claimant struggled to concentrate at work and avoided meetings. There was an impact on his ability to recall and retain information; his memory and ability to concentrate were affected. He had difficulty sleeping. The claimant found it hard to say what the impact of the impairment would have been if he had not been taking medication, but felt he would have been limited to carrying out only simple tasks. It was submitted that the fact the claimant tried to function as much as he could did not undermine the fact his ability was impaired.

[34]The claimant had spoken of a very people-focussed style of management, which had changed. He for example, cancelled one-to-one appointments and meetings. He had previously been very sociable, and changed to being withdrawn and having difficulty communicating. The evidence, it was submitted, painted a picture of a man who was a shadow of himself.

[35]Mr Byrom submitted the adverse effects had been long term. Dr Millings’ report noted the claimant had not ever been fully free of the impairments and he was still on medication. Dr Millings had also spoken of the high likelihood of recurrence if the claimant was subjected to adverse effects; and of the fact the claimant now had a propensity to anxiety, stress and depression. The fact the claimant was discharged by Dr Millings in 2017 did not mean his symptoms were not likely to recur.

[36]Mr Byrom acknowledged there had been an absence of GP visits during 2018, but submitted the claimant’s evidence that he had found it difficult to ask for help should be accepted.

[37]Mr Byrom invited the Tribunal to find the claimant was a disabled person in terms of the Equality Act and that he had been so at the material time. The respondent had led no expert evidence to contradict Dr Millings and in the circumstances the Tribunal should accept her evidence. Respondent’s submissions

[38]Mr Healey took no issue with the submissions of Mr Byrom regarding the approach to be taken by the Tribunal. Mr Healey noted the term “normal day to day activities” may include general work activities, but not specialised ones.

[39]Mr Healey submitted the claimant’s evidence had been vague as to the effects of the impairment and when they had occurred. There had been a very broadbrush applied to timing. The claimant stated he has been disabled since 2017, but he had not ever been off sick and attended work as normal. The claimant stated he had tried to continue and function. The Disability Impact Statement referred to him not being able to perform the simplest of tasks without Sertraline, but when asked in cross examination about this, the claimant had confirmed he had been able to perform simple tasks.

[40]Mr Healey submitted the claimant’s evidence regarding colleagues at work commenting on him being withdrawn was likely to be untrue and over-stating the effects of the impairment.

[41]Dr Millings saw the claimant three times in 2017; once in 2019 and prepared a report in 2020. The respondent had wanted to instruct a joint medical report but the claimant had not wanted to consent to this.

[42]Mr Healey accepted Mrs Campbell’s evidence had been straightforward, and that it had been a very stressful time. Mrs Campbell referred to Mr Campbell having taken on the additional task of caring for her but this was not referred to in the witness statement.

[43]The respondent accepted the claimant had an impairment (stress and anxiety) but disputed the effects of this were substantial, adverse or long term. The claimant had significant personal issues to deal with. It was submitted that anyone would have suffered stress and anxiety at this time, which was compounded by being called in at work to answer charges.

[44]Mr Healey submitted the effects were not caused by the impairment but by the significant life events the claimant faced at the time.

[45]Mr Healey invited the Tribunal to note the claimant had accepted he could do simple tasks without medication. The claimant may have been worried about what people would say, but he still played five-a-side football.

[46]Mr Healey acknowledged the claimant had made reference to work functions which had been affected (managing staff conflict; preparing reports) and submitted they were not normal day to day activities. The claimant, it was submitted, had given few examples of how the impairment affected his life.

[47]Mr Healey submitted the impairment had not had a substantial adverse effect on the claimant’s ability to carry out normal day to day activities and the effect had not been long term. The claimant’s anxiety arose at discrete points when disciplinary issues arose at work. There was no evidence that the claimant was struggling to perform day to day activities such as cooking, washing and dressing. The claimant had had three sessions with Dr Millings in 2017, and had then been discharged and not seen again for 19.5 months. He returned to work. He did not see his GP. It was submitted the claimant had continued to function during this time.

[48]Mr Healey invited the Tribunal to find the claimant was not a disabled person in terms of the Equality Act. Discussion and Decision

[49]I firstly had regard to the terms of section 6 of the Equality Act 2010 which provides that a person has a disability if she/he has a physical or mental impairment and the impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities.

[50]The EAT in the case of Goodwin v The Patent Office 1998 WL 1043265 provided guidance saying that tribunals may find it helpful to address each of the following four questions:-• Does the claimant have an impairment which is either physical or mental?

• Does the impairment affect the claimant’s ability to carry out normal day to day activities?

• Is the adverse effect on the claimant’s ability to carry out normal day to day activities substantial; and

• Is the adverse effect long term?

[51]This guidance has been endorsed in subsequent cases (see for example Cruickshank v VAW Motorcast Ltd

2002 ICR 720

). The Cruickshank case also made clear that determination of whether the employee was disabled involved examination of the employee’s impairment at the time of the discriminatory act complained of.

[52]The claimant, in his claim, complained of four alleged discriminatory acts which were(i) the fact find investigation on the 21 December 2018;

(ii) access to emails on the 22 March 2019;

(iii) dismissal on the 3 April 2019 and

(iv) access to emails on the 23 August 2019. Accordingly, the issue for the Tribunal to determine is whether the claimant was a disabled person, in terms of section 6 Equality Act, in the period 21 December 2018 to 23 August 2019.

[53]The respondent in this case accepted the claimant had an impairment (stress and anxiety). The dispute focussed on whether that impairment had a substantial and long term adverse effect on the claimant’s ability to carry out normal day to day activities. I noted the claimant, in his evidence, described events which occurred in the period 2016 to date. I reminded myself that I must determine whether the claimant was a disabled person at the material time (that is, at the time of the alleged discrimination) and that this was in the period December 2018 to August 2019.

[54]There was no dispute in this case regarding the fact that the claimant had a number of stressful personal issues to deal with within the period 2016 to 2019. There were, in addition to this, two work-related disciplinary issues, the first of which (the contract issue) arose in September 2017 and the second of which (the staff issue) arose in February 2018 and resulted in the claimant’s suspension in November 2018 and his dismissal in April 2019. The claimant’s GP diagnosed stress and anxiety in October 2017 and prescribed Sertraline in November 2017. The claimant also saw Dr Millings three times in November/December 2017.

[55]I took from the above facts that by the time of the first alleged act of discrimination (the fact finding investigation) in December 2018, the claimant had had a diagnosis of stress and anxiety for over a year and had been on Sertraline (an antidepressant) for over a year.

[56]I next turned to consider the affect the impairment had on the claimant’s ability to carry out normal day to day activities. The claimant had prepared a Disability Impact Statement (page 32) in which he set out details and examples of the affect the impairment had had on him. The examples included:(i) being unable to sleep uninterrupted;

(ii) problems concentrating, focussing on what is being said and comprehending what is being said;

(iii) difficulty remembering facts and events;

(iv) low self esteem;

(v) inability to make decisions and

(vi) avoiding social situations.

[57]The claimant accepted he had not been signed off as unfit for work in the period up to dismissal. The claimant described that as the General Manager, he had felt he needed to “keep going” at work and that he could not see how not being there would help insofar as it would only prolong the disciplinary process. I accepted the claimant’s evidence that he started to miss time limits for pieces of work: he, for example, became slower at gathering information required for writing reports; he found it difficult to engage and contribute in meetings; he struggled to remember facts and felt that he was no longer on top of his work. The claimant also stopped his open-door policy at work, cancelled one-to-one meetings and tried to avoid conversations with staff. I would describe this as a loss of control and interest in work and engagement with work colleagues.

[58]Mr Healey challenged that the examples cited by the claimant were not normal day-to-day activities because they were specific work tasks. I, in considering that submission, had regard to the Cruickshank case (above) where the EAT held that it was not appropriate to confine the evaluation of “normal day to day” activities to a normal day-to-day environment. Accordingly, if while at work an employee’s symptoms were such as to have a significant and long term effect on his ability to perform day-to-day tasks, that effect fell to be examined and was not to be ignored simply because the work itself might be specialised and unusual. I considered it was appropriate to look at what were day-to-day tasks for the claimant.

[59]I concluded, having had regard to the above points, that the claimant’s concentration and confidence were affected and that this impacted on his ability to perform tasks, which were normal day-to-day tasks for him, at work. This included writing reports, participating in meetings and engaging with employees.

[60]I also accepted the claimant’s evidence that he avoided social situations particularly where those situations included interaction with employees. The claimant spoke of no longer attending a triathlon club because he may meet colleagues from work. He instead continued to play 5-a-side football because he would not encounter colleagues from work.

[61]Mr Healey described the claimant’s evidence as vague as to the effects he suffered and when they were suffered and noted the claimant had not been signed off as unfit for work. I accepted the claimant, at times, struggled to recall either the correct chronology of events or the dates of events. I could not however accept this undermined his evidence: rather, I considered this was an illustration of the effect of the claimant’s condition.

[62]I considered the claimant’s evidence was supported by the report of Dr Millings (page 52). Dr Millings noted that when she met with the claimant in 2017 he was experiencing “great stress” emanating from both personal and employment situations. She referred to the claimant’s “apparently secure employment, which spanned eighteen years, as well as his status in his managerial role was in question over a specific circumstance in the workplace… For someone who was already in a fragile emotional state, the lack of the nurturing caring environment that he expected was a blow to him which left him feeling unsupported and without the understanding he needed. His mood consequently declined to an even lower level than previously.” Dr Millings went on to say that “It was not unexpected that he would have required anti-depressant medication as the most important aspects of his life were being severely, negatively affected. One of the major symptoms of depression is disturbed sleep. When an individual is sleep deprived his capacity to concentrate becomes impaired. Obviously, this would have an effect on work performance. Consequently, I would anticipate a deterioration in the performance of work-related duties, perhaps some lethargy but most likely there would be evidence of distraction and lack of clear thinking. Day to day personal activities would also suffer, be reduced in quantity and quality and require greater effort to perform.” Dr Millings noted these effects were in evidence by the time of the second appointment on the 23 November 2017.

[63]The effects noted by Dr Millings were of disturbed sleep which impacts on a person’s capacity to concentrate, which in turn would impact on work performance, and further manifest itself in distraction and lack of clear thinking. I considered it was these effects that the claimant endeavoured to detail in his evidence to the Tribunal. I was accordingly satisfied that the claimant’s evidence was supported by Dr Millings’ report.

[64]I acknowledged Dr Millings saw the claimant three times in 2017 and not again until July 2019. Mr Healey focussed on this and the fact the claimant was discharged from seeing Dr Millings after the third appointment in December 2017. The claimant, in response to this, rejected the suggestion he had not seen Dr Millings because he had stopped suffering the effects of stress and anxiety. He confirmed it had been a very difficult time for him and that he had continued to take the medication, follow the guidance regarding relaxation and rely on support from family and friends.

[65]I accepted the claimant’s evidence and I was satisfied there was nothing to suggest the claimant’s condition improved in 2018/19 or that the impact of his impairment reduced in that time. I say that because both the personal issues and work-related issues continued during 2018/19, and the claimant’s evidence was that he continued to suffer the effects set out above.

[66]The claimant did accept in cross examination that he continued to be able to carry out the normal day to day activities of getting up, showering, getting dressed and trying to look after his wife. I considered the claimant’s response had to be balanced with the evidence of his wife who spoke more candidly about the struggle the claimant faced in trying to cope with day to day activities. She spoke of the claimant becoming withdrawn, avoiding social contact, being unable to concentrate and thereby losing confidence in his decision-making ability. I was satisfied the fact the claimant may have continued to carry out some normal day to day activities did not undermine his position. This was particularly so in circumstances where the focus of the tribunal must be on what a claimant cannot do, rather than on what they can do.

[67]I next considered whether the adverse effects were substantial. I noted that a substantial effect is one that is more than a minor or trivial effect. I was entirely satisfied that the effects of the claimant’s impairment were not minor or trivial. I say that because the impairment to his ability to concentrate, remain focussed, remember facts and think clearly was substantial, and this led the claimant to start avoiding situations where he may be required to contribute. Further, the claimant withdrew from socialising. The impression I formed, based on the claimant’s evidence, was of a person struggling to cope and struggling to function in almost every aspect of day to day life.

[68]I next considered whether the effects were long term. A long term effect of an impairment is one which has lasted at least 12 months, or where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months or which is likely to last for the rest of the life of the person affected. I was satisfied the effects of the impairment were long term in circumstances where the claimant was diagnosed in October 2017 and is still being prescribed antidepressant medication. The effects of the impairment the claimant described have lasted at least 12 months.

[69]I next had regard to the effects of the treatment the claimant received. The Act provides that where an impairment is subject to treatment, the impairment is to be treated as having a substantial adverse effect if, but for the treatment, the impairment is likely to have that effect. The claimant was prescribed Sertraline (an antidepressant) in November 2017, and the dosage to be taken was doubled in March 2019. The claimant also learned techniques (for example, relaxation techniques) from Dr Millings which he used from 2017 onwards. The claimant found it difficult, beyond stating things would have been worse, to explain what his impairment would have been like had he not been taking the medication and using the techniques taught by Dr Millings.

[70]I, in considering this matter, had regard to the evidence of Dr Millings when she told the Tribunal that stress/anxiety/depression have an impact on sleep, and that if there is a lack of, or disturbance to, sleep it can lead to poor concentration, irritability, withdrawal from social activity and memory impairment. I inferred from this that if the claimant’s impairment had not been treated, the lack of, or interruption to, sleep would have been greater and accordingly the impact on concentration, memory, irritability and withdrawal from social activity would have been greater. I further considered that without the coping techniques the claimant learned from Dr Millings, the effects of the impairment would have been greatly exacerbated. I, for these reasons, concluded that if the effects of treatment were disregarded, the adverse effects of the impairment would undoubtedly have been substantial.

[71]The likelihood of recurrence is also an issue which should be considered taking all the circumstances of the case into account. Dr Millings addressed this issue in cross examination when she told the Tribunal that once a person suffers from anxiety, they appear then to have a weakness and certain situations, which they may previously have coped with, will now cause anxiety. She confirmed there was more of a propensity to be anxious. Dr Millings considered the likelihood of recurrence for the claimant was “quite high”. I accepted Dr Millings’ evidence regarding the likelihood of recurrence in this case.

[72]The respondent sought to argue that any individual dealing with the personal difficulties which the claimant faced, would have displayed stress/anxiety. I noted that Dr Millings, when asked this question, agreed all individuals would be anxious, but the degree of anxiety would vary. The claimant already had anxiety issues which would be exacerbated. She described the claimant as being more susceptible to heightened anxiety. Dr Millings, when asked whether the adverse effects had been caused by the impairment or the family situation, told the tribunal that the effects were cumulative: they started as one thing and became magnified by what subsequently happened.

[73]The respondent suggested Dr Millings’ report was based only on the six week period in 2017 when she met with the claimant. Dr Millings rejected that suggestion and explained the report was based on the times she had seen the claimant which were in 2017 and July 2019. Dr Millings accepted she could not speak to the effects of the impairment during 2018, but had set out what the claimant told her, what she perceived and what she might expect given what had been said. Dr Millings accepted the claimant had felt more positive after the contract issue had been resolved at work, but that did not translate into resolving the effects of the impairment.

[74]Mr Healey, in his submission to the Tribunal, noted the respondent accepted the claimant had an impairment (stress and anxiety) but disputed the adverse effects of that impairment had been substantial and long term. I acknowledged there were some facts in this case which were perhaps unusual: - for example, the fact the claimant continued to attend work; the fact of the number of personal issues the claimant had to deal with; the fact he did not return to see Dr Millings from December 2017 until July 2019 and the fact the claimant’s health appeared (at face value) to improve/decline depending on the situation at work. I could not, however, accept those facts undermined the claimant’s evidence or that of Dr Millings, regarding the substantial adverse effect of the impairment on the claimant’s ability to carry out normal day to day activities. There may well have been “good” days (relatively speaking), but fundamentally the claimant’s ability to function was severely impacted.

[75]I decided, having had regard to all of the points set out above, that the claimant was a disabled person in terms of section 6 of the Equality Act, at the material time of the alleged acts of discrimination.

[76]On a number of key points, Ms Robertson went well beyond her remit of fact finding and strayed into interpreting facts and recording her own opinions as fact. Ms Robertson had a particular interpretation of events and her questions proceeded on the basis of a number of assumptions, some of which were wrong. For example, as explained above, she assumed the claimant had been asked by Mrs Macfarlane on 13 August to request SLC to conduct a fact finding when Mrs Macfarlane had told her she did not ask the claimant to do this at any time. She did not interview Ms Crichton, so she was unaware that after the call Ms Crichton had with the claimant and Mrs Macfarlane on 15 August, Ms Crichton had called Ms McVeigh and asked [ELC WS 38] for SLC assistance with fact finding and that Ms McVeigh had refused at that time, insisting on jumping to stage 3A. It was only later that Ms McVeigh changed her mind and offered SLC assistance with fact finding.

[77]At paragraph 4.64 of her fact finding report, Ms Robertson quoted a conversation she appeared to have had with Ms McVeigh: “Ms McVeigh has stated she had no such telephone discussion with Mr Campbell and that Mr Campbell did not ask her for fact finding support.” However, there was no statement from Ms McVeigh or anything to indicate she had been interviewed as a witness. She was simply allowed to comment in the conclusion.

[78]By letter from Kay McVeigh dated 7 February 2019 (J565), the claimant was invited to a disciplinary hearing on 4 March 2019. Despite her involvement in the events complained of, Ms McVeigh was adviser to the panel. The first panel proposed by SLC/ Ms McVeigh for the claimant’s disciplinary hearing included Robert Craig, a board member who had provided a statement that was being used as evidence against him and also Johan Steele, who had been on the panel for A’s grievance hearing. The claimant’s union representative Johanna Baxter protested to Ms McVeigh about Mr Craig’s inclusion on the panel. Ms McVeigh then substituted Lindsay Freeland, CEO of SLC for Mr Craig, initially on the basis that he had “had no involvement” (J575) and thereafter on the basis of Ms McVeigh’s understanding that “of the Board Members he had least knowledge and involvement in the issues”. The claimant was concerned because Mr Freeland had seen the correspondence from A’s solicitors DWF and had received the two briefing papers prepared by Ms McVeigh on 19 September and 5 November 2018 which outlined in detail Ms McVeigh’s view of the issues in the case and contained prejudicial statements and opinions discrediting the claimant in relation to the matter. Ironically, despite having expressed views on the claimant’s case, Ms McVeigh continued to act as HR support person, including advising on the make-up of the disciplinary panel.

[79]The respondent has a practice that a suspended employee is permitted to access emails through a session supervised by a member of the respondent’s HR team sitting beside the employee in close proximity so they can both see the same computer screen. The claimant asked for permission to review his emails ahead of the disciplinary hearing. The claimant’s wife required to accompany him as the claimant was struggling to concentrate and needed her to keep him focused. On or about 22 March 2019, Gail Robertson met the claimant and his wife at reception and showed them into a room with a computer and a printer. There were two chairs at the computer and the claimant assumed his wife would be able to sit with him to assist him with the emails. However, Ms Robertson said she needed to sit beside him and directed his wife to sit across the room. The respondent’s practice put the claimant at a substantial disadvantage in comparison with non-disabled persons because the proximity of Ms Robertson looking at the same screen as the claimant, working the computer mouse and leaning across him heightened his anxiety and caused him to panic and freeze. It also exacerbated his problems with processing information, organising his thoughts and keeping focused on the task such that on the first occasion the claimant was unable to complete the session or use it to remind himself of the events and communications or explore the evidence fully. The claimant visibly faltered and moved back in his seat when Ms Robertson leaned across him. The claimant attempted to focus and asked for some emails to be printed but they were emails he already had. He became tense and hesitant in his communication with Ms Robertson. It was evident from his voice and demeanour that he was not thinking or communicating clearly. Mrs Campbell sensed the claimant’s anxiety and discomfort and she stood up and told Ms Robertson that she felt it was not working and that they needed to leave and the session was terminated. Ms Robertson was aware of the claimant’s stress and anxiety. Given the terms of Ms Robertson’s fact finding report and her involvement in the case to that point, it should have been obvious that for her to supervise the claimant in close proximity could heighten his anxiety. Ms Robertson did not follow up to see if another approach could have been used.

[80]The disciplinary hearing was initially set for 4 March 2019. However, the claimant was signed off sick. He attended an occupational health (“OH”) assessment on 21 March 2019. The claimant’s GP provided the OH doctor with a short letter (J533) confirming that the claimant was “currently suffering from anxiety, depression, anhedonia and poor concentration”. The letter stated that the claimant was on Sertraline medication and his dose had recently been increased to 100 mg. The letter from the claimant’s GP was incorporated into the fact finding report as ‘Appendix 36’ and was thus placed before the Disciplinary and Appeal Panels. In a report dated 22 March 2019 which was also part of Appendix 36 to the fact finding report before the disciplinary and appeal panels, SLC’s OH doctor referred to the claimant’s “mental health problems” in the following terms: “He has had a number of significant stresses in his personal life including serious health worries concerning his wife and he has of course found the period of suspension quite traumatic emotionally as well. I can advise you that this has been appropriately dealt with by his GP. // As we might expect someone who has experienced a high level of distress in their personal life he has exhibited features of low mood including impaired cognition, confidence, motivation disturbed sleep and reasoning may have been affected to some extent as well.” The report stated that the claimant’s medical problems including his mental health problems were “currently adequately controlled to allow a resumption of work engagement in duty” (J536).

[81]The disciplinary hearing invite letter dated 7 February 2019 (J565 -6) had listed the Hearing Panel members as Cllr Gerry Convery (Chair), Robert Craig and Johan Steele and stated that Ms McVeigh would be advising them. Mr Freeland was then substituted for Robert Craig. On 22 March 2019 Johanna Baxter emailed Cllr Convery (585 – 9) with her concerns about the inclusion of Mr Freeland on the Panel and the fact of Ms McVeigh’s appointment of herself as HR Adviser to them: “We are in possession of two documents - both authored by Kay McVeigh - which outline in great detail, and pass judgement on, the central issues in contention at this hearing. The first of these is a document issued to the Chief Executive and Council Leader dated 19th September 2018. The second is a document issued to the Chief Executive, Council Leader and Group Leaders dated 5th November 2018. This later document was then circulated by email to a number of others by the Chief Executive on the 8th November 2018. It is unfathomable to think that the Chief Executive would forward on a document with which he disagreed….” It was pointed out that at least four other board members could replace Mr Freeland on the panel. Cllr Convery agreed to replace Ms McVeigh as HR Adviser to the Panel, though initially indicated she would now appear as a management witness. He refused to replace Mr Freeland.

[82]The claimant attended the disciplinary hearing on 1 and 2 April 2019 along with his representative, Ms Baxter. The Panel were: Cllr Gerry Convery (Chair); Lindsay Freeland and Johan Steele. Ms Maxwell was in attendance to advise the Panel. A Note was taken (J591 - 639). Ms Robertson presented the case for the respondent and called Robert Craig as a witness. The claimant gave evidence on his own behalf and called Mrs Macfarlane, Cllr Watson, Angela Beggan, Alex Allison and Lynne Nailon as witnesses. Ms Robertson’s presentation to the disciplinary panel contained the same serious errors as her fact finding report. For example,(i) Ms Robertson repeatedly stated and/or implied to the Panel (J594, 595 - paragraphs 1 and 8, 632, 633) that in August 2018 the claimant had been advised by Ms Crichton through Mrs Macfarlane to ask SLC for fact finding support. Ms Robertson knew or ought to have known, both from her fact finding interview with Mrs Macfarlane and from her questioning of her at the disciplinary hearing (J621 paragraph 9) that Mrs Macfarlane had specifically denied that she had asked the claimant to contact SLC about fact finding.

(ii) Ms Robertson referred Mrs Macfarlane (J621) to the claimant’s email correspondence with Ms McVeigh and suggested to her that there was an email where “Kay offers support with fact finding for 3A and advised that Gerry should not be involved”. This question was misleading. Ms McVeigh did not specifically offer support with fact finding in her email correspondence with the claimant (J377 – 384).

(iii) Ms Robertson implied at the hearing that it had been improper for the claimant not to have given the grievance paperwork to SLC in August 2018. She failed to refer to the GDPR and contractual issues this would present which had been flagged by Shepherd and Wedderburn.

(iv) Ms Robertson told the disciplinary panel (J596): “Ms McVeigh stated that Mr Campbell did not ask for any fact finding support, despite her advice for this information gathering requiring to have taken place prior to the stage 3 Board”. Ms McVeigh was not called as a witness to the disciplinary hearing, nor was she interviewed for the fact finding report. This commentary from Ms McVeigh was obtained and placed before the disciplinary panel without transparency.

(v) Because she failed to interview Ms Crichton, Ms Robertson did not spot McVeigh’s initial misunderstanding of Ms Crichton’s advice. Ms Crichton was not advising a ‘stage 3 Board’. She was advising a stage 2 Board.

(vi) Because she failed to interview Ms Crichton, Ms Robertson was unaware that Ms Crichton’s position was that she had specifically asked Ms McVeigh about fact finding shortly after the call on 15 August 2018 and that Ms McVeigh did not agree that SLC would offer fact finding at that time. Ms McVeigh’s view at that time was that the stage 2 fact finding would be skipped and the matter would proceed straight to 3A with SLC getting involved at that stage as she states in her email (J384).

(vii) Ms Robertson expressed the view to the claimant at the disciplinary hearing that because the grievance was against the respondent’s most senior employees, stages 1 and 2 of the procedure were not appropriate and the case should have gone straight to 3A/ Board appeal. This view (initially espoused by Ms McVeigh), if implemented, would have deprived the parties of an initial fact finding and decision stages and was not in line with either the respondent’s grievance procedure or natural justice.

[83]Because of the effects of his disability and the absence of reasonable adjustments, the claimant had failed to fully answer Ms Robertson at his fact finding interview and a number of mistakes and misrepresentations were incorporated into her report as set out above. Once the report was issued and as a result of his disability, the claimant was unable to interrogate the report and to provide proper instructions about the facts and events to Ms Baxter. The provision to him of Ms Robertson’s 134 fact finding questions together with the documents relied upon in advance of the fact finding interview may well have enabled the claimant (with the help of his wife and Ms Baxter) to understand the case against him and to accurately recall the complex sequence of events in a less stressful environment in order to identify and highlight the errors. Without that adjustment, the claimant and his union representative were unable to articulate his overarching defence or explain to the disciplinary panel the respects in which Ms Robertson’s conclusions were wrong. (G Convery WS12 and 21 – 23.]

[84]During the disciplinary hearing on 1 and 2 April 2019 the claimant stated (J606) that he had sought professional counselling for stress and was on medication. He stated that during the time of the A grievance matter his wife underwent lifesaving surgery which had led to sepsis. The claimant told the panel that it had been difficult to keep focus professionally. At the disciplinary hearing, as a result of his disability, the claimant was unable to respond with clarity and confidence to the allegations against him. Cllr Convery noticed during the hearing that the claimant’s body language was ‘like he was defeated’. Cllr Convery had been a shop steward and he knew how the claimant’s union representation should work. He felt Ms Baxter did not put up much of a case to protect him. Cllr Convery felt that there had been times during the whole thing when it could have been sorted but that the claimant’s skill set had not come through. He felt that the claimant had sat there for the two days of the disciplinary hearing and Cllr Convery had been waiting for the big robust denial but it never came. Cllr Convery thought that this was not the Gerry Campbell he had dealt with over the years, who would say if he had an opinion. Cllr Convery was waiting for the punchline from the claimant and his representative but nothing came. He considered “there was no overarching defence from [the claimant] side”. Cllr Convery considered that it was for the claimant to prove to him that he was not guilty of the allegations narrated against him (GC WS 27) and that he had failed to do so and on that basis, Cllr Convery decided he should be dismissed. The third panel member concurred.

[85]Mr Freeland was also on the disciplinary panel. He had received the letter from A’s solicitor on 4 September 2018 and Ms McVeigh’s briefing notes of 19 September 2018 and 5 November 2018 in the terms set out above and these had primed Mr Freeland against the claimant so that he was unable to consider the case impartially. When Mr Freeland had received Ms McVeigh’s briefing paper in November 2018 (J178) he had taken at face value her statement at 5.1 that normal grievance processes were underway. The note implied that it would be normal for the respondent to pass its grievances to SLC; that the claimant ought to have used SLC’s personnel service for A’s grievance under the SLA (J178 para 3.2); that he ought to have handed it over it to SLC to deal with straight away (para 4.1) and that in failing to do so he was somehow resisting the proper (SLC) process, defying SLC and serving his own interests. These assertions were controversial and were not ultimately supported by evidence in Ms Robertson’s report. Against the background of these representations having been made to him already, Mr Freeland concluded (LF WS 23c) that: “having read the background papers, considered the fact-finding outcomes, and having had the opportunity to question Gerry Campbell during the hearing, the information provided confirmed he did not follow the advice provided from S&W.” Mr Freeland was unclear why. He considered that the claimant: “was unable to provide a satisfactory answer both at the fact finding and at the actual hearing itself…” He chose to dismiss the claimant on the basis of his belief that the claimant’s judgment, actions and behaviour throughout the process had eroded all trust and confidence in his ability to continue in the post. The claimant’s lack of clarity and confidence on the facts of the case and his inability to rebut Ms Robertson’s conclusions during the disciplinary process arose in consequence of his disability

[86]By letter dated 3 April 2019 Cllr Convery wrote to the claimant (J640) to tell him that six of the seven allegations against him had been upheld. Allegation number 6 (that the claimant had canvassed Board Members to secure a different Board Chair) was not upheld. The letter informed the claimant that he had been dismissed for gross misconduct with immediate effect without notice. The letter advised the claimant of his right of appeal. Attached to the letter was the “full disposal”. This states in relation to Allegation 1 at page J648: “It is clear from the information provided that G Campbell was asked to discuss with the Council how best it could support the grievance, this included not only supporting the board but also regarding the fact finding. This was not done.” In relation to allegation 2, the disposal states: “The panel believe G Campbell was advised to contact the Council in relation to a fact finding.” There is no explanation as to why the panel rejected both the claimant’s and Mrs Macfarlane’s specific evidence that the claimant was not asked by Mrs Macfarlane to contact the Council to ask them for support with the fact finding. The determination is based on obvious inconsistencies, errors and wrong assumptions which no reasonable employer would have made. The evidence put forward in respect of the remaining allegations was so flimsy that no reasonable employer would have found that it supported the allegations. Even their summary of the decision (J651) contained inconsistencies. It stated on the one hand: “In coming to the unanimous decision the panel noted that G Campbell did not dispute the allegations as presented by the fact finder…” and in the same summary: “In coming to this decision the panel were of the view that during the course of the hearing G Campbell did not accept his actions with the exception of those indicated already.” There were no reasonable grounds for the panel’s belief that the claimant was guilty of gross misconduct. His summary dismissal was accordingly also a repudiatory breach by the respondent of his contract of employment.

[87]The claimant appealed against the decision and provided detailed grounds (J659). He received a letter from Cllr Peter Craig, advising that he would be Chair of the Appeal Panel. The claimant’s solicitor objected to this (J691 – 9) stating that Cllr Craig was compromised by having served on the panel that upheld Employee A’s grievance and having reviewed the fact finding report in the claimant’s case prior to it being issued to the assessment panel contrary to the correct procedure. Despite the claimant’s objections, Cllr Craig was not removed. The appeal hearing finally took place on 10 October and 13 November 2019. The appeal panel did not consider it was their role to reach an independent view on dismissal. They decided that all the evidence heard by the disciplinary panel was properly heard and conducted in a fair manner. It was not a rehearing. The involvement of Cllr Craig in upholding A’s grievance and in earlier stages of the claimant’s case meant that the appeal panel was not impartial. Observations on the

Evidence

[88]Where there was a conflict in the evidence between the claimant and the respondent’s witnesses we preferred the evidence of the claimant. He gave his evidence carefully and was honest when he could not remember. His evidence was supported by Ms Crichton’s and was consistent with the documentary records.

[89]We found Ms Crichton to be a credible and reliable witness. She made appropriate concessions but was somewhat hampered by not having access to her full file. At paragraph 54 of his written submissions, Mr Miller refers to what he calls an uncharacteristic but egregious error at paragraph 38 of Ms Crichton’s witness statement in which she asserted that she had called Ms McVeigh shortly after her call with the claimant and Mrs Macfarlane on 15 August 2018 and that Ms McVeigh had provided her with “exactly the same message” as the claimant had done earlier – ‘that SLC got involved in 3A, not fact finding and an expectation that we were jumping to that stage’. Mr Miller stated in his written submissions (paragraph 54): “As the witness accepted in cross examination – and reinforced in re-examination – that is diametrically the opposite of what Mrs McVeigh had told her during a call on 27 August 2018 (1082 – 1084). This most probably arose inadvertently but it betrays a partisan position even so”. We agreed that Ms Crichton’s evidence that SLC were not offering assistance with fact finding on 15 August 2018 was diametrically the opposite of what Ms McVeigh was saying to Ms Crichton on 27 August, but Ms Crichton’s explanation for this was that Ms McVeigh’s position changed between 15 and 27 August. Ms Crichton testified that she has moved firm since the events of August 2018 and that she had not therefore been able to check her file notes and records from that time. She conceded that it looked from the email chain at 1082 - 1084 as though she had spoken to Ms McVeigh for the first time on 27 August 2018, but she also said her memory was that she had spoken to her earlier. In any event, whether she spoke to Ms McVeigh on or about 15 August or later, the totality of her evidence (despite skilful questioning from Mr Miller) was that Ms McVeigh had initially adopted a position that ‘SLC got involved at stage 3A, not [stage 2] fact finding and that stage 2 should be skipped’ around 15 August and had subsequently changed her position by 27 August to saying there should be a stage 2 fact finding and SLC should do it. That evidence from Ms Crichton is consistent with Ms McVeigh’s email to the claimant on 14 August 2018 (J384) and the different position she adopted in the email chain on 27 - 28 August (J1082). Ms McVeigh was not called by the respondent to clarify matters. The Tribunal has therefore done its best on the material before it.

[90]On balance, we accepted Ms Crichton’s evidence at paragraph 38 of her witness statement that she had had a call about fact finding with Ms McVeigh earlier than 27 August 2018 for the following reasons:(i) There was no primary evidence from Ms McVeigh on the email chain from 1082 to 1084 and its context, nor was there any evidence from her denying an earlier call had taken place;

(ii) Ms Crichton, (despite her concession on what the terms of the email at 1084 “looked like”) said that her memory was that she spoke to Ms McVeigh earlier than 27 August;

(iii) in the same paragraph 38 of her witness statement Ms Crichton remembered other details of the call which were not challenged – that she had asked Ms McVeigh specifically about fact finding and that Ms McVeigh was very strong in her view; and that Ms Crichton had found it difficult to push her and did not get agreement that SLC could offer fact finding;

(iv) it seemed to us that Ms Crichton’s 27 August email at J1084 incorporates the sort of formula a solicitor uses on the first occasion they write to someone formally, especially if they may have separate legal representation. It would not necessarily preclude an earlier call to check whether or not SLC’s assistance could be offered.

[91]In light of the evidence Ms Robertson gathered from the claimant (J297 Q25.3) and Mrs Macfarlane (J322 Q27.1) that Ms Crichton’s suggestion on 14 August “Gerry to speak to SLC to determine what support they could offer around fact finding” (J373) was not in fact communicated to the claimant, the point is less important. The fact remains that what Ms Crichton noted the claimant saying to her on 15 August: “Gerry explaining that Kay’s view was that the Council got involved at 3A not fact finding” (J375) was consistent with Ms McVeigh’s email to him on 14 August (J384) where she said: “Given the nature of the grievance we can skip stages 1 and 2 of the procedure and go straight to stage 3A”.

[92]Mrs Macfarlane was rather vague in paragraph 11 of her witness statement where she states that she can’t remember what she told the claimant about fact finding following the 13 August call with Ms Crichton. She gave her witness statement for this Tribunal on 4 November 2021, three years after the events. Mrs Macfarlane was interviewed by Ms Robertson on 18 December 2018 and we considered her response to question 27.1 (J322), (to the extent that she did not take issue with it in her proposed amendments) was the best evidence on that point given that it was closer in time to the events in question. We accordingly found that Mrs Macfarlane did not ask the claimant at any time to speak to SLC about conducting a fact finding (J322). Applicable Law Disability Discrimination claim – failure to make reasonable adjustments

Applicable Law

[93]Section 20 Equality Act 2010 provides so far as relevant:- “(2) the duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[94]Section 21 Equality Act 2010 provides:- “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.....”

[95]Schedule 8 to the Equality Act 2010 concerns the duty to make reasonable adjustments at work. Part 3 concerns limitations on that duty. Paragraph 20 of Schedule 8 deals with lack of knowledge of disability. It states: “20 Lack of knowledge of disability, etc (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know - (a) …… (b) …that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. Discrimination arising from disability claim

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

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” Discussion and Decision Failure to Make Reasonable Adjustments (s.20 EqA) (i) Did the respondent apply to the claimant any of the provisions, criteria or practices (“PCPs”) set out in the amended ET1? (ii) If so, did the PCP(s) put the claimant at a substantial disadvantage? (iii) Did the respondent know or could it reasonably have been expected to know that the claimant had the disability and was likely to be placed at the disadvantage referred to? (iv) Did the respondent fail to take such steps as were reasonable to avoid the disadvantage?

[97]Mr Miller’s first argument in relation to the claimant’s disability claims related to whether the respondent had the requisite knowledge of disability. As he noted, in relation to the section 20 claim of failure to make reasonable adjustments, knowledge of the impacts of the disability is also necessary. Before addressing the issue of knowledge, it is necessary for the Tribunal to consider whether the respondent applied a provision, criterion or practice to the claimant and if so, whether this put the claimant at a substantial disadvantage in comparison with persons who are not disabled. It is necessary to determine what the disadvantage was before we can assess whether the respondent knew or could reasonably have been expected to know about it.

[98]With that in mind (and reserving the question of knowledge to determine below) we considered the adjustments contended for: (i) To have provided the claimant with the 134 fact finding questions and copies of the documents they referred to in advance of the fact finding interview.

[99]In relation to this adjustment, the claimant’s case was that the respondent’s practices (PCPs) were:(a) to suspend access to an employee’s emails and electronic diary when an employee is suspended from his post;

(b) not to supply an interviewee with a list of questions and the documents they refer to in advance of a fact finding interview;

(c) not to allow an interviewee to add or remove any information recorded in the note of the fact finding interview if it was not discussed at the meeting.

[100]With regard to these PCPs, it was averred in the ET1 and did not appear to be in dispute that these were practices of the respondent. (In the experience of this tribunal they are common practices.) We consider they meet the test for PCPs in which a “practice” involves some form of continuum in the sense that it is the way in which things generally are or will be done. That (a) was applied to the claimant is clear from the penultimate paragraph of J288. It is clear from the documentary and witness evidence that (b) and (c) were also applied to him.

[101]The claimant was disabled as a result of anxiety and stress. He was on medication during the relevant period. We accepted his evidence, confirmed in his psychological report (J1033 – 43) and the Judgment of EJ Wiseman that his disability gave rise to poor recall in relation to facts, events and dates; difficulty in processing and organising information given verbally and on paper; low confidence and difficulty in concentrating over long periods of time. EJ Wiseman also held that the adverse effect of the impairment would have been more substantial without medication. PCP (a)

[102]Having accepted that PCP (a) was a practice of the respondent, applied to the claimant, we considered whether it put the claimant at a substantial disadvantage in comparison with persons who are not disabled. This is a question of fact assessed objectively and measured by comparison with what the position would be for non-disabled people. We concluded that the claimant was placed at a substantial disadvantage in that: not having had access to his emails and electronic diary to assist his poor recall, when he was asked questions at the fact finding interview on 21 December 2018 that referred to facts, dates and events that had happened between February and August 2018, he was not able as a result of poor recall to answer the questions precisely and accurately. Inaccurate and erroneous assumptions and conclusions were then made against him by the fact finder in the resulting report. (See findings in fact above). Even though the claimant was given access to his emails and diary prior to the disciplinary hearing, this did not alleviate the disadvantage because (i) adjustments were not made for the access session on 22 March 2019 and (ii) the panel regarded the fact finding report as having effectively created a presumption of guilt, which it was for the claimant to rebut. [G Convery WS 27 “he had not proven to me that he was not guilty of the allegations which were narrated against him.”] As a result of his disability, the claimant was unable to unpick the errors and assumptions underpinning Ms Robertson’s conclusions and ultimately unable to reverse her conclusions to the satisfaction of the disciplinary panel. A non-disabled person would have been able to answer the questions accurately and confidently and to have corrected the erroneous assumptions they contained.

[103]Subject to the issue of knowledge below, we would have considered that this proposed adjustment would have been reasonable to make for the reasons also set out below. PCP (b)

[104]The Tribunal separately accepted that PCP (b) also put the claimant at a substantial disadvantage in comparison with persons who are not disabled. We accepted that as a result of his disability, the claimant struggled to process information given verbally and on paper, to recall facts and details, to concentrate over periods of time and to formulate responses. There were accordingly details he was not able to provide at the interview but which would have helped clarify responses and establish the facts. We did not agree with Mr Miller’s submission that the claimant had not made good in evidence the averments made on his behalf at 52.3 and 52.4 of the ET1. The nature and content of the claimant’s answers to the questions from Ms Robertson on the key points strongly suggest he was struggling during his interview to understand the questions, provide detail and respond. We consider that the claimant’s answers to questions 25 to 25.3 are a case in point.

[105]During the fact finding interview the investigator read from communications, specifically emails and Ms Crichton’s timeline and file notes and asked for the claimant’s comments. The claimant’s difficulties with concentration and comprehension placed him at a substantial disadvantage as he struggled to take in what was being read to him and to process and organise the information. Question 24.1 is a particularly egregious example of a question in which the claimant is being asked by Ms Robertson to agree that the whole content of a multifaceted note from S&W (a note which he had not seen but which had presumably been read to him) must have been relayed to him by Mrs Macfarlane on 13 August. His general answer is inconsistent with his specific denial at 25.3. A non-disabled person would have been able to understand and assimilate the documents read out to them; to understand the questions; to answer them accurately and robustly and to have corrected the erroneous premises and assumptions some of them contained.

[106]The interviewer read from a list of 134 questions. It was a lengthy, approximately 4 hour interview. The claimant’s problems with poor concentration, recall and reduced ability to process and organise information rendered this interview especially stressful and this in turn exacerbated his symptoms. Again, a nondisabled person would have been able to answer the questions accurately and robustly and to have corrected the erroneous assumptions they contained.

[107]For the reasons set out below and subject to the issue of knowledge, we concluded that it would have been a reasonable adjustment to provide the claimant with copies of these documents along with the questions and to have given him time to digest and make sense of them before the fact finding interview. PCP (c)

[108]With regard to PCP (c) - not to allow an interviewee to add or remove any information recorded in the note of the fact finding interview if it was not discussed at the meeting – the Tribunal accepted that this was a practice of the respondent and that it put the claimant at a substantial disadvantage in that because of his poor recall there were details he was not able to provide at the interview which would have helped clarify responses and establish the facts.

[109]We considered Mr Miller’s submissions on the issue of whether these PCPs put the claimant at a substantial disadvantage. We considered the argument at paragraph 12 of his written submissions, that the claimant believed he had given an accurate account to Ms Milne in her (separate) fact finding investigation into A’s grievance (C WS 62). We considered that the details of A’s grievance so far as they were said to relate specifically to the claimant (J182) were: “The manner in which the Attendance Support Meeting on 3 August was conducted by Maureen Macfarlane and Gerry Campbell”. There did not appear to have been any reference to documents the claimant had not seen or of chains of email correspondence being read out at the A grievance interview. We did not consider the two interviews to be comparable. There was a material difference in the scale and complexity of the respective interviews and in their importance to the claimant.

[110]In paragraph 13 of Mr Miller’s submissions he disputes that there was any evidence that being given the questions in advance would have been a reasonable adjustment. (This is also applicable to the issue of the reasonableness of the proposed adjustments below.) We did not accept this submission for the following reasons. We considered that it was clear from the fact finding report that some of Ms Robertson’s conclusions were based on generalised, vague and inaccurate answers by the claimant (e.g. paragraph 4.47 on J271). Once these found their way into the final report, the claimant faced an uphill struggle. On page J283 at para 5.15 it is implied that the claimant agreed that he was aware of the totality of the advice given by Ms Crichton to Mrs Macfarlane on 13 August 2018 (presumably as recorded in her file note which the claimant had not seen but which was read out to him at the interview). Paragraphs 5.19 and 5.20 are based on misunderstandings by both the claimant and Ms Robertson. Ms Robertson’s conclusion at 5.1 (J281) is that Ms Crichton did not speak directly to the claimant on 13 August but that her advice was relayed to him by Mrs Macfarlane. However, Mrs Macfarlane had specifically told Ms Robertson in her own interview that she had not asked the claimant at any time to request SLC’s assistance with fact finding. Nevertheless, at 5.19 and 5.20 and 5.30 Ms Robertson implies that on 13 August Ms Crichton asked the claimant to ascertain [sic] fact finding support from SLC. There is an unfair implication that the claimant is being disingenuous. The conclusions of the report depended heavily on Mrs Macfarlane having asked the claimant on 13 August to speak to SLC about fact finding, yet the evidence Ms Robertson had gathered was that she did not. Ms Robertson’s conclusions were in turn relied upon by the disciplinary and appeal panels. If the claimant had had the questions and documents in advance he would have been able to read and assimilate the content of Ms Crichton’s file note of her call with Mrs Macfarlane on 13 August 2018 and to indicate to Ms Robertson precisely which parts of J373 were relayed to him by Mrs Macfarlane and which were not. That might well have been an end of the matter.

[111]Mr Miller states that an alternative (to the proposed adjustment of giving the claimant the questions in advance) which was actually used was to allow the claimant to present a statement augmenting and/or correcting the Robertson record. We considered this carefully. The claimant’s additional notes (J1047 – 56) were sent to Ms Robertson on 11 January 2019 but she had already completed and sent off the report earlier that day. Furthermore, the claimant’s additional notes were prepared without access to the emails and file notes and this prevented him from giving a full and informed explanation. He was having to rely upon his recall, which was affected by his disability. (For example his note on Question 25.1 on J 1049). The Tribunal concluded that because the claimant’s statement was simply added as an appendix and not used in the conclusions; and because, when the claimant wrote the statement he did not have access to the emails and file notes on which the questions had been based, but was having to rely on his recall which was affected by his disability, this ‘alternative’ did not begin to address the disadvantage. If the respondent had made the adjustment of providing him with the questions and associated documents in advance of the fact finding, this disadvantage would have been alleviated in time for the claimant’s informed position to have been incorporated into the fact finding report. PCPs (a), (b) and (c) - Would the adjustment have been reasonable?

[112]The duty, once triggered, is “to take such steps as it is reasonable to have to take to avoid the disadvantage.” The Tribunal must look at whether the adjustment proposed by the claimant is itself reasonable. The sorts of factors which a Tribunal might consider in making that assessment are listed in paragraph 6.28 of the EHRC Code. We concluded that the step of providing the 134 questions and copies of the documents they referred to in advance of the fact finding interview would have been effective in preventing the substantial disadvantage by enabling the claimant to remind himself - by reference to the contemporaneous correspondence and file notes - of the complex sequence of events and to offer his properly informed and considered responses to Ms Robertson’s questions. We concluded that the step/adjustment would have been practicable. Ms Robertson had prepared the questions and obtained the documents in advance of the hearing. It would have been a simple matter to have shared them with the claimant. The respondent may consider that the element of surprise stops an employee from crafting explanations in advance. However, the evidence led by Ms Robertson against the claimant in this case was primarily documentary. It was incumbent upon her to ensure that she had understood them correctly and that she had given the claimant a fair opportunity to answer the case against him. Because of the failure to make reasonable adjustments, and the other problems with the way the fact finding was conducted, the case was flawed from the start. No issue arises in relation to the cost or resources of the respondent. (i) To have given the claimant a second interview as outlined in R’s Disciplinary Procedures: A Handbook for Managers.

[113]The claimant submitted that the respondent could have given him a second interview which would have enabled him to digest the questions and documents and access the information he could not recall at the first interview and thus to present his evidence accurately. It appeared to the Tribunal that this adjustment had been put forward as an alternative to(i) above. Since (i) succeeded, we did not address this.

(ii) To have provided the claimant with a transcript of a recorded interview.

[114]It was argued by the claimant that the PCP applied to him in relation to this adjustment claim was the respondent’s practice of providing a non-verbatim record of fact finding interviews. It was said that this practice put him at a substantial disadvantage compared to non-disabled persons in that the claimant was experiencing difficulties with recall and comprehension as a result of his disability and so was at a disadvantage when it came to reviewing the notes of the meeting and checking if any of the information had not been recorded correctly. It was stated that the respondent’s practice is to permit the interviewee to request amendments if the information is not accurate and an interviewee who had confidence in their ability to recall statements would be in a position to contest inaccuracies. As the claimant’s recollection of the interview was impacted by his disability, he was therefore placed at a disadvantage by not receiving a verbatim copy of the records. The claimant argues that it would have been a reasonable adjustment for him to have been provided with a transcript of a recorded interview in this instance. We considered paragraph 14 of Mr Miller’s submissions. We did not agree with him that the sense of paragraph 85 of the claimant’s witness statement was that he was able to ascertain what he needed to add. The claimant states only that he knew that he needed to add further detail, explanation and clarity to what was recorded. Because the claimant did not have copies of the documents Ms Robertson had referred to in the interview, his comments were limited to his recall in any event. We concluded that this practice was applied to the claimant and did put him at the disadvantage. However, he would not have been at the disadvantage in question if he had been given the questions and associated documents in advance of the fact finding. We would therefore see this as a less effective alternative to (i) above since, with regard to the documents, it would only record extracts Ms Robertson had chosen to read out. Again, since the claimant has succeeded in arguing (i) we have not addressed this further. (iii) At the email access sessions on 22 March and 23 August 2019 to have provided a separate screen in another part of the room to enable the supervisor to watch what the claimant was doing at a distance or password access to only the claimant’s emails when giving the claimant access to his emails.

[115]The claimant requested access to his emails to prepare for the disciplinary and appeal hearings. He was given access once prior to the disciplinary hearing and once before the appeal. He argues that reasonable adjustments ought to have been made to these sessions. The claimant submits that the PCP applied to him by the respondent during this access was their practice for a suspended employee to access emails through a session supervised by a member of the respondent’s HR team sitting beside the employee in close proximity so they can both see the same computer screen. We accepted that this was a practice for the purposes of section 20 EqA and that it put the claimant at a substantial disadvantage in comparison with non-disabled persons because the proximity of Ms Robertson looking at the same screen as the claimant heightened his anxiety and exacerbated his problems with processing information, organising his thoughts and keeping focused on the task, such that on the first occasion the claimant was unable to complete the session or use it to remind himself of the events and communications/ explore the evidence fully. We accepted Mrs Campbell’s unchallenged evidence about what happened at the first session, that it was prematurely terminated and that Ms Robertson did not follow up to see if another approach could have been used. We found above that the respondent had knowledge of the claimant’s disability and indeed, the claimant had brought this to Ms Robertson’s own attention at the end of the fact finding interview. With regard to knowledge of the disadvantage, Mrs Campbell testified that it was evident to her from the claimant’s voice and demeanour that he was not thinking or communicating clearly. She stated that she expected Ms Robertson to check the claimant was ok and that when she failed to do so, Mrs Campbell told Ms Robertson it was not working and they needed to leave and terminated the session. Given the terms of Ms Robertson’s fact finding report and her involvement in the case to that point, it should have been obvious that to supervise the claimant in close proximity in the manner described by Mrs Campbell could heighten his anxiety.

[116]With regard to the issue of whether this would have been a reasonable adjustment, we concluded that providing a separate screen for Ms Robertson to enable her to observe the claimant’s actions from a distance would have been a relatively simple and practicable step. It would have been likely to have relieved the disadvantage caused to the claimant by the proximity of Ms Robertson in the circumstances. We find that it would have been a reasonable adjustment which the respondent failed to make. The same applies to the session on 23 August 2019. Knowledge of Disability and Disadvantage Did the respondent know and could it reasonably have been expected to know that the claimant was disabled and likely to be placed at the disadvantage?

[117]In terms of the EqA Schedule 8, paragraph 20 the respondent is not subject to a duty to make reasonable adjustments if the respondent did not know and could not reasonably have been expected to know that the claimant had a disability and was likely to be placed at the disadvantage referred to. Both Mr Miller and Mr Hardman referred the Tribunal to paragraph 17 of the Judgment of the EAT in Secretary of State for Work and Pensions v Alam

[2010] ICR 665

in which the test in relation to whether the ‘lack of knowledge exemption’ applies is set out in the following way: “17… two questions arise. They are:(1) did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: “no” then there is a second question; namely

(2) ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? 18 If the answer to that second question is: “no”, then the section does not impose any duty to make reasonable adjustments.”

[118]We considered the facts of the present case.(a) On or about 13 May 2016 Mrs Macfarlane, the respondent’s Head of HR took advice from Kate Faulds of S&W regarding her concerns for the claimant’s health. She kept a note of the conversation (J165) which refers to the claimant’s stress and anxiety. She was advised to speak to Ms McVeigh to relay her concerns.

(b) On 3 October 2017 the claimant was diagnosed with stress and anxiety by his GP, prescribed Sertraline (an antidepressant) and referred to Dr Millings, a counselling psychologist. The same month, he emailed Cllr David Watson, Chair of the respondent’s Board, who was his line manager and explained to him that he was suffering from stress and anxiety and that he was seeking medical advice about his mental wellbeing. He informed Cllr Watson that his GP had advised professional counselling with a counsellor/psychologist.

(c) Around the same time the claimant informed Mrs Macfarlane, the respondent’s Head of HR that he was on anti-depressants, was struggling and was having bad nosebleeds. Mrs Macfarlane also knew the claimant was seeing a psychologist.

(d) In December 2017 (J166) the claimant emailed Ms McVeigh about the vein occlusion in his left eye. He told her that this had been diagnosed as a result of high blood pressure due to ongoing issues at work.

(e) During a conversation on 17 August 2018 with Ronnie Smith (one of the respondent’s Board members) and in a further conversation in late September/early October 2018 Mr Smith noticed that the claimant was showing signs of stress and anxiety (J584).

(f) Cllr Watson testified that in 2018 he noticed verbal communication and physical signs about the claimant’s health. He had day to day discussions with the claimant in 2018, talking to him about the stress of everything that was going on and Cllr Watson was sufficiently concerned that he contacted Lynne Basch, an HR officer with the respondent about getting support for the claimant. Ms Basch emailed Cllr Watson on 27 September 2018 (J1045) and reported to him that the claimant was struggling with his mental health and well-being. The claimant took up Ms Basch’s offer of support.

(g) On 27 November 2018 the claimant informed Cllr Craig of his stress and anxiety in a text (J219).

(h) By email dated 28 November 2018 the claimant told Ms McVeigh that he was experiencing stress and anxiety and that the appointment of Ms Robertson was against a backdrop of other factors which continued to have a major impact upon his own mental health. He stated that the unfounded speculation about his suspension had added to his personal stress.

(i) At the end of the claimant’s fact finding interview with Ms Robertson on 21 December 2018 (J308) the claimant told Ms Robertson that in the summer he had been prescribed anti-depressants and had undergone professional counselling and advice. He told Ms Robertson that he remained on them at that time. He described his wife’s serious health issues and how his suspension had come in the middle of a health crisis for his wife. He went on to say that the personal stress and pressure he had been under had been immense and he could not stress enough how difficult it had been.

(j) The respondent’s OH report (J534 – 6) and the claimant’s GP letter both post-date the fact finding interview but pre-date and were made available to the disciplinary hearing. They probably pre-date the first access session on 22 March 2019. The GP letter dated 21 March 2019 (J533) confirms the claimant’s anxiety, depression and poor concentration. The OH report does not specifically address the issue of disability status but refers to the claimant’s mental health problems and refers to the claimant having exhibited features of low mood including impaired cognition, confidence, motivation and disturbed sleep. It also states that his reasoning may have been affected.

(k) In relation to the disciplinary hearing on 1 and 2 April 2019, Mr Freeland conceded in his witness statement (paragraph 26) that he was aware that the claimant was suffering from stress and anxiety. He goes on: “The letter from Ronnie Smith alludes to this and his representative stated this to be the case at the hearing.” He stated that Ms Baxter had, however, made no issue of the claimant not having the opportunity to participate fully in the process and did not ask for adjustments to the fact finding or disciplinary process. Mr Freeland stated that he did not witness the claimant display any behaviour at the hearing that suggested he was affected by any mental health problems. However, Cllr Convery testified (GC WS 23): “He sat there over the two days and I was waiting for the big robust denial, but it never came. This was not the guy I dealt with over the years. If Gerry had an opinion, he would say it. I was waiting for the punchline from him and his representative but nothing came. Where was the defence? It was like he was going through the motions, item by item.” Cllr Convery agreed in Cross examination that he had seen the claimant’s GP letter which is at Appendix 36 to the fact finding report.

[119]We asked ourselves first whether the respondent knew or could reasonably have been expected to know that the claimant had a physical or mental impairment at the relevant time(s) (specifically on 21 December 2018; 22 March 2019; 1,2 and 3 April 2019 (section 15 claim) and 23 August 2019). The impairment held to be a disability by EJ Wiseman (J51 Paragraph 53) was stress and anxiety. The claimant had informed the respondent he was suffering from this impairment on a number of occasions by 21 December 2018. Clearly the respondent knew about it.

[120]We next considered whether they knew and/or could reasonably have been expected to know that the impairment had a substantial (i.e. not minor or trivial) and long term adverse effect on his ability to carry out normal day to day activities. Regarding whether they knew the impairment was substantial and longterm, the claimant had told his line manager, Cllr David Watson, Chair of the respondent’s Board in October 2017 that he was suffering from stress and anxiety; that he was seeking medical advice about his mental wellbeing; and that his GP had advised professional counselling with a counsellor/psychologist. Around the same time the claimant informed Mrs Macfarlane, the respondent’s Head of HR that he was on anti-depressants, was struggling and was having bad nosebleeds. Mrs Macfarlane also knew the claimant was seeing a psychologist. We were satisfied that the respondent knew and/or could reasonably have been expected to know by December 2018 that the claimant’s mental impairment was substantial and long-term such that Cllr Watson had noticed verbal communication and physical signs and contacted Lynne Basch to obtain support for him. We inferred from the evidence of Cllr Watson and Mrs Macfarlane that the claimant had discussed with them the adverse effect his mental impairment was having on his normal day to day activities. They also knew that the claimant was on anti-depressant medication and they could reasonably have been expected to know that the effect of the impairment was likely to have been more substantial if he had not been on medication.

[121]We considered whether the respondent knew or could reasonably have been expected to know that the claimant was likely to be placed at the disadvantage(s) in question - we reminded ourselves that in relation to PCP (a) the substantial disadvantage was that at the fact finding interview on 21 December 2018 the claimant was not able as a result of poor recall to answer Ms Robertson’s 134 questions precisely and accurately. Inaccurate and erroneous assumptions and conclusions were then made against him in the resulting report. In relation to PCPs (b) and (c), the substantial disadvantage at which the claimant was put in comparison with non-disabled persons was - put shortly - that at the same interview on 21 December 2018 the claimant struggled to process and organise the information presented to him, take in what was read out to him, recall facts and details and formulate responses, especially in relation to emails and previously unseen file notes. He also struggled to concentrate and to correct the erroneous premises and assumptions in some of the questions. Whereas a nondisabled person would have been able to answer the questions accurately and robustly and to have corrected the erroneous assumptions they contained.

[122]The question of whether an employer could reasonably be expected to know of a person’s disability and likelihood of being placed at the disadvantage is a question of fact for the Tribunal. With regard to whether the respondent knew or could reasonably have been expected to know that the claimant was likely to be placed by the PCPs at the substantial disadvantage(s) in question, we concluded that they could reasonably have been expected to know this by 21 December 2018 for the following reasons: By that stage, the claimant had told Mrs Macfarlane, Cllr Watson, Ms McVeigh and Cllr Craig that he was suffering from stress and anxiety. He had discussed the effects of this on his day to day activities with Cllr Watson, his line manager. Mr Smith and Cllr Watson had also observed signs of stress and anxiety when speaking to him. In an email sent to Ms McVeigh on 28 November 2018 the claimant had referred again to his stress and anxiety and to other factors continuing to have a major impact on his own mental health. According to Ms Robertson’s evidence in cross examination, Ms McVeigh, (SLC’s Head of HR) was directing the fact finding investigation. One might have expected that this email would have led an experienced and senior HR professional to consider whether adjustments to a nearly four hour fact finding interview might be required. Similarly when the claimant drew attention to his impairment at the end of the fact finding interview, one might have expected Ms Robertson to ask herself the same question. The Tribunal inferred from the written record of the interview (per examples in the findings in fact above) that the claimant was clearly struggling. A prudent employer who knows an employee has a mental impairment would act as though that impairment may qualify as a disability, or satisfy themselves that this is unlikely by seeking medical or occupational health advice before embarking on a four hour interview of the sort conducted by Ms Robertson.

[123]The OH report and GP letter post-dated the fact finding interview. The GP letter dated 21 March 2019 (J533) confirms the claimant’s anxiety, depression and poor concentration. The OH report does not specifically address the issue of disability status but refers to the claimant’s mental health problems and to his having exhibited features of low mood including impaired cognition, confidence, motivation and disturbed sleep. The report states that his reasoning may have been affected to some extent as well. We accepted the claimant’s evidence that these were longstanding symptoms. To the extent that these observations were available to the OH doctor at his consultation and adopting the relevant facts found by EJ Wiseman, we infer that the low mood, impaired cognition and confidence and issues with reasoning would have been apparent to Ms Robertson at the nearly four hour, very testing fact finding interview. We consider that they are apparent from the notes of the claimant’s interview and from Ms Robertson’s findings where she refers on a number of occasions to the claimant being unable to recall things and says several times: “fact finder reminded Mr Campbell”; “Mr Campbell was reminded”.

[124]Paragraph 20(1)(b) of Schedule 8 to the Equality Act 2010 is framed in the negative. It states that A is not subject to a duty to make reasonable adjustments if A does not know and could not reasonably be expected to know that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. For the foregoing reasons, we have concluded that the respondent in this case knew and/or could reasonably be expected to know that the claimant had a disability and that he was likely to be placed at the disadvantage referred to in the first requirement. Discrimination Arising from Disability (s. 15 EqA)(i) Has the respondent shown that it did not know and could not reasonably have been expected to know that the claimant had the disability? (Stress and anxiety).

(ii) Did the respondent treat the claimant unfavourably because of something arising in consequence of his disability?

(iii) If so, can the respondent show that the treatment was a proportionate means of achieving a legitimate aim?

[125]Section 15(1) EqA does not apply if the respondent shows that they did not know, and could not reasonably have been expected to know that the claimant had the disability. Since the unfavourable treatment complained of is the claimant’s dismissal, the relevant date is 3 April 2019. On the basis of the facts summarised at paragraph 118 (a) to (k) and for the reasons set out in paragraphs 119 and 120 above, we concluded that the respondent knew and could reasonably have been expected to know that the claimant had the disability at that stage.

[126]Section 15 Equality Act provides that a person(a) (A) discriminates against a disabled person

(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability; and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Mr Hardman referred to the judgment of the EAT in Pnaisner v NHS England

[2016] IRLR 174

at paragraph 31 in which Mrs Justice Simler (as she then was) summarised the authorities and set out the proper approach to section 15. (a) “A tribunal must first identify whether there was unfavourable treatment and by whom: in other words it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.” In this case the unfavourable treatment relied on by the claimant was his dismissal by the disciplinary panel. (b) “The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required…” There may be more than one reason. “The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but it must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.” This stage is the subjective “because of stage” involving A’s explanation for the treatment and the conscious or unconscious reasons for it. (Pnaisner paragraph 31(g)).

(c) “Motives are irrelevant. The focus in this part of the enquiry is on the reason or cause of the impugned treatment….”

(d) “The tribunal must determine whether the reason/cause (or if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’…the causal link between the something that causes the unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.” This stage is the ‘something arising in consequence’ stage which was held to be objective – whether as a matter of fact rather than belief the ‘something’ was a consequence of the disability. (Pnaisner Paragraphs 31(f) to (h)).

(e) An example of a case in which the causal chain between the ‘something’ that causes the unfavourable treatment and the disability included more than one link was Land Registry v Houghton

[2015] All ER (D) 284

in which a bonus payment was refused by A because B had a warning. The warning had been given by a different manager for absence. The absence arose from disability. It was held that the statutory test was met.

[127]Mr Hardman also referred to the case of Sheikholslami v University of Edinburgh

[2018] IRLR 1097

in which Simler J said this (paragraph 62): “On causation, the approach to section 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and

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

[128]In this case, Mr Hardman submits that the unfavourable treatment was the claimant’s dismissal. Applying the two stage test set out in Pnaisner and Sheikholslami we first asked whether the dismissal was because of the claimant’s inability to respond to the allegations made against him with clarity. The first question is: Did the claimant’s inability to respond with clarity to the allegations have a significant or more than trivial influence on the decision by the disciplinary panel to dismiss him? That question involves a consideration of the reasons why each relevant decision-maker acted as they did in treating the claimant unfavourably (deciding to dismiss him). Mr Hardman referred to paragraphs 21 - 23 of Cllr Convery’s witness statement in which he submitted that Cllr Convery had confirmed that the claimant was unable to respond to the allegations made against him. (See paragraphs 84 and 85 above.) Cllr Convery testified that he had noticed during the hearing that the claimant’s body language was like he was defeated. Cllr Convery said that he had been waiting for the punchline from the claimant and his representative but nothing came. He considered that the claimant had not proven to him that he was not guilty of the allegations which were narrated against him and we found that it was on that basis that he decided to dismiss him.

[129]Quoting paragraph 25 of Mr Freeland’s witness statement, where he states: “The panel chose to dismiss the Claimant as his judgment, actions and behaviour evidenced throughout the process had eroded all trust and confidence in his ability to continue in the post…” Mr Hardman submitted that stated in those terms, this must be considered a significant factor in Mr Freeland’s decision to dismiss the claimant. Mr Hardman argues that it had at least a significant (or more than trivial) influence on the unfavourable treatment (his dismissal), and so amounted to an effective reason for or cause of it. We accept that submission.

[130]The second question is whether on the objective facts, the ‘something’ (the claimant’s inability to respond with clarity to the allegations) arose in consequence of the claimant’s disability of stress and anxiety. Mr Hardman stated that the claimant’s confusion and lack of clarity on the facts during the disciplinary hearing were set out in his witness statement at paragraphs 101 – 103; that this was a characteristic of his disability and was ‘something’ which had a significant influence on the claimant’s “judgment, actions and behaviour evidenced throughout the [disciplinary] process..” Cllr Convery’s observations of the claimant’s demeanour and body language in paragraphs 21 to 23 of his witness statement are also relevant here. Furthermore, the medical evidence in the GP letter and OH report were in point. The claimant was assessed by the OH doctor on 21 March 2019, just over a week prior to the disciplinary hearing. The doctor stated: “He has exhibited features of low mood including impaired cognition, confidence, motivation, disturbed sleep and reasoning may have been affected to some extent as well.” We also refer to the findings in fact at paragraphs 84 and 85. We concluded on the facts before us that the claimant’s inability to respond with clarity to the allegations during the disciplinary hearing was ‘something’ arising in consequence of his disability.

[131]With regard to the issue of whether the claimant’s dismissal was a proportionate means of achieving the legitimate aim of “responding to genuine and substantial concerns about the claimant’s conduct”, Mr Hardman submits that this was an unfair and wrongful dismissal and as such, it cannot be justified. He argues that it is clear there was no legitimate aim to be pursued. We agree with that submission. We find below that there were no reasonable grounds for the panel’s belief in the claimant’s misconduct. Ordinarily, it would be a legitimate aim to investigate concerns about an employee’s conduct through disciplinary proceedings and to dismiss the employee if found guilty. Even if we are wrong and the respondent had a legitimate aim in this case, the claimant’s dismissal was not a proportionate means of achieving it. They failed to carry out a reasonable investigation and used a procedure that was manifestly biased. The respondent failed to make reasonable adjustments. As paragraph 5.21 of the EHRC Employment Code states: “If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.” Unfair Dismissal (ss. 94 &98 ERA) (i) With reference to sections 94 & 98 ERA, was the claimant’s dismissal by the respondent fair or unfair?

[132]Section 98 of the Employment Rights Act 1996 indicates how a tribunal should approach the question of whether a dismissal is fair. There are two stages. The first stage is for the employer to show the reason for the dismissal and that it is a potentially fair reason. The case put forward by the respondent was that the reason was conduct. A reason relating to the conduct of the employee would be a potentially fair reason under Section 98(2).

[133]To establish that a dismissal was on the grounds of conduct, the employer must show that (in this case) the panel that made the decision to dismiss the claimant believed that he was guilty of misconduct. Thereafter the Employment Tribunal must be satisfied that there were reasonable grounds for that belief and that at the time the dismissing/appeal officers reached that belief on those grounds the respondent had conducted an investigation that was within the range of reasonable investigations a reasonable employer might have conducted in the circumstances. The onus is neutral in relation to the grounds for the respondent’s belief and the sufficiency of the investigation.

[134]If the tribunal finds the reason for dismissal established, it must move on to the second stage and apply Section 98(4) to determine whether the employer acted reasonably or unreasonably in treating the reason as sufficient for dismissal. In applying that section the Tribunal must consider whether the procedure used by the respondent in coming to its decision was within the range of reasonable procedures a reasonable employer might have used and whether dismissal as a sanction was within the band of reasonable responses a reasonable employer might have adopted to the conduct in question. The Employment Tribunal is not permitted to substitute its view on any of these issues for that of the employer. Instead it must consider whether the process and decisions of the respondent fell within the range of a reasonable employer. Reason for dismissal

[135]With regard to the reason for dismissal, the Tribunal accepted with some hesitation that the respondent’s disciplinary panel believed that the claimant was guilty of serious/gross misconduct. Reason/Reasonableness

[136]Mr Hardman referred us to Lord Bridge’s well known dictum from Polkey v A E Dayton Services Ltd [1982] ICR at 162: “But an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps conveniently classified in most of the authorities as “procedural”, which are necessary in the circumstances of the case to justify that course of action. Thus, …… in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation...”

[137]Although we accepted (with some misgivings) the panel’s belief in the claimant’s misconduct, we concluded that there were not reasonable grounds for that belief in that no reasonable employer could have concluded the claimant was guilty of serious misconduct on the evidence gathered by Ms Robertson at the fact finding stage. Our reasons for this conclusion are based on the facts summarised in paragraph 82 above. The evidence presented in the appendices to the report manifestly did not support the report’s conclusions, nor did it support those of the disciplinary panel. Indeed, the evidence at its highest showed that the claimant’s involvement in the arrangements for A’s grievance was minimal. It began on 13 August 2018 when Mrs Macfarlane relayed to him part of her understanding of a call with Ms Crichton and it ended on 15 August 2018 when he stepped back from the process. It amounted to little more than checking the availability of two board members to hear a first instance grievance. On the evidence Ms Robertson gathered there was clearly no substance to the charges that the claimant had not followed Ms Crichton’s advice or that he had misrepresented the position of S&W and SLC in communication with both organisations.

[138]Following the claimant’s disciplinary hearing on 1 and 2 April 2019, Cllr Convery considered that it was for the claimant to prove to him that he was not guilty of the allegations narrated against him (GC WS 27) and that he had failed to do so. He considered “there was no overarching defence from [the claimant] side”.

[139]With regard to the question whether the respondent’s investigation was within the band of reasonable investigations a reasonable employer might have conducted in the circumstances we were strongly of the view that it was not within that band for the following reasons:(i) The first two allegations against the claimant were that he had not followed legal advice from Shepherd and Wedderburn and had misrepresented the position of Shepherd & Wedderburn and SLC in communication with both organisations. Despite the complexity of the facts and the need to interpret statements and advice in context, Ms Robertson did not, at any stage interview either Ms Crichton or (officially) Ms McVeigh. These two witnesses were the principal people in the respective organisations with whom the claimant (briefly) communicated and whose respective positions he was alleged to have misrepresented. No reasonable employer would have omitted to interview these witnesses given the nature of allegations 1 and 2 against the claimant and the need for interpretation of the records of which they were the authors.

(ii) Despite the fact that on the charges she was a key witness, the Fact Finding investigation into the claimant’s handling of A’s grievance process by SLC was carried out under Ms McVeigh’s direction by one of her Personnel Advisers, Gail Robertson. As stated in the previous paragraph, inexplicably, given the nature of allegations 1 and 2, Ms McVeigh was not questioned as a witness in the investigation. Despite this, Ms Robertson permitted Ms McVeigh to comment in the final report at paragraph 4.64 (J274).

(iii) The investigation and fact finding report were partisan and inadequate for all the reasons set out above (particularly paragraphs 60 – 62 and 69 - 77). The report appeared to be oriented toward confirming Ms McVeigh’s suspicions of misconduct, as communicated to Mr Freeland and others in her briefing notes.

(iv) The confusing nature of the fact finding report and appendices and the incorporation of lengthy background material made it difficult for the claimant and the members of the disciplinary panel to engage with. As Mr Hardman submitted, key to understanding the allegations and whether or not Ms McVeigh’s suspicions had substance were the sequence of emails and telephone calls between Ms Crichton and Mrs Macfarlane and between the claimant and Ms McVeigh all between 13 and 15 August 2018. We agreed with Mr Hardman that the evidence of those interactions is not presented in a logical manner. The relevant findings do not appear until paragraphs 4.47 to 4.75 of the report and the supporting documents are not easy to find in the appendices.

(v) Some of Ms Robertson’s key conclusions do not fairly represent the evidence she had gathered, especially from the claimant and Mrs Macfarlane. Mrs Macfarlane told Ms Robertson she had not spoken to the claimant about SLC conducting a fact finding. The claimant also said this. Ms Robertson fails to acknowledge this in the report and makes a key conclusion at odds with this evidence without explanation. No reasonable employer would proceed in that manner.

(vi) As Mr Hardman submits, the criticised conduct of the claimant was minimal. His report that Ms McVeigh discussed only 3A and not fact finding could have been confirmed by Ms Crichton but despite being a key witness she was not interviewed. Otherwise, the claimant contacted two members of the respondent’s board to ascertain their availability for a first instance grievance hearing. There was no evidence he gave them any details of the grievance. The claimant was then advised to step back and he did so. We agree with Mr Hardman that the paucity of any evidence of culpability was not explained in the report nor could it be understood from it without unscrambling the appendices.

(vii) The respondent was on notice that the claimant was suffering from stress and anxiety. The respondent failed in its duty to make reasonable adjustments to the investigation procedure.

[140]The Tribunal concluded that the above matters in combination took the investigation carried out by the respondent outside the band of reasonable investigations a reasonable employer might have conducted in the circumstances.

[141]The Tribunal also concluded that the procedure adopted by the respondent was biased and well outside the band of reasonable procedures a reasonable employer might have used for the following reasons:(i) The respondent is an ALEO. To maintain charitable status, an ALEO has to be able to demonstrate that it is truly independent and not simply a subsidiary of a local authority. The respondent had its own HR Function headed by Maureen Macfarlane and a retainer arrangement with Shepherd and Wedderburn for legal advice. Nevertheless, Ms McVeigh - SLC’s Head of Personnel Services - who was not employed by the respondent and had no locus in relation to A’s grievance (unless the respondent, the grievance maker and grievance subjects all agreed to vary the respondent’s process to allow a third party to step in (stage 3A excepted)) insisted on becoming involved in it. This was against the advice of the respondent’s solicitors (J171) who advised the Chair of the respondent’s Board, Cllr Watson that there was no requirement to outsource the grievance to a third party. Ms McVeigh was also an essential witness in the case, given the nature of the first and second allegations and it was inappropriate for her to provide HR advice and handle the case.

(ii) The respondent’s employment law adviser, Ms Crichton had given the respondent sound advice that it was not necessary (or a good idea) - given that A’s grievance was post-resignation - to continue with it once A had refused the offer of a reasonable process by her employer. (A’s employer was the respondent not SLC). Despite this, Ms McVeigh insisted both that the grievance should proceed and that SLC should be involved. At some point between 4 and 17 September 2018 she personally met with A and her solicitor “to try and resolve the complaint” and only informed Cllr Watson about the meeting (by email dated 17 September 2018 (J167)) after it had taken place (bypassing Shepherd and Wedderburn in the process). She informed Cllr Watson that the resolution she had agreed with A and her solicitor was: “…that the grievance is heard”.

(iii) On 19 September 2018, more than a month after the claimant had already stepped back from the grievance process, Ms McVeigh sent an internal SLC briefing note (J554) to SLC’s CEO, Mr Freeland and SLC’s Council leader in which she implied that the claimant’s actions had been suspicious and/or improper and that he was still inappropriately involved in A’s grievance process as set out at paragraph 37 above. Having briefed Mr Freeland as described in paragraph 37, Ms McVeigh later had him appointed to the claimant’s disciplinary panel.

(iv) Cllr Watson was then put under pressure by SLC to ignore the advice from Shepherd and Wedderburn, hand over the investigation of A’s grievance to SLC and let them take control of it. He resisted. On or about 5 October 2018 SLC informed Cllr Watson that he had been removed from the respondent’s Board and was no longer a director or Chair. On 10 October 2018 Michelle Milne, HR Business Partner with SLC began investigating A’s grievance.

(v) On 25 October 2018 Cllr Peter Craig of SLC’s political executive put himself forward to be a director of the respondent’s board with a request to be Chair. At a meeting of the respondent’s Board on 26 October, he was appointed a director and interim Chair in place of Cllr Watson. At the same time, Cllr Gerry Convery of SLC was also appointed to the respondent’s Board. The same day, Friday 26 October 2018 Ms McVeigh informed the claimant that Cllr Peter Craig, the new interim chair of the respondent’s Board had instructed her to instigate a fact finding investigation into the handling of A’s grievance, all aspects of which would be managed and controlled by SLC. The Tribunal inferred from the foregoing facts and their timing that certain people within SLC were intent on disciplinary proceedings against the claimant and when they couldn’t get Cllr Watson to cooperate, they made changes to the respondent’s Board to that end. We were struck by the fact that Cllr Watson was removed/pressed to resign from the Board after he resisted pressure from SLC to ignore S&W’s advice and hand control of the investigation of A’s grievance to SLC. We noted that as soon as he became interim Chair, Cllr Craig immediately instructed a fact finding investigation by SLC into the claimant’s handling of A’s grievance. It was he who then suspended the claimant on 20 November. Cllr Craig chaired A’s grievance hearing on 29 November 2018 and ultimately chaired the panel hearing the claimant’s appeal against dismissal. We also noted that Cllr Convery was appointed to the Board on the same date as Cllr Craig and then chaired the claimant’s disciplinary panel. Thus, the chairs of the claimant’s disciplinary and appeal panels were both appointed on 26 October 2018 amid the circumstances of Cllr Watson’s removal and Ms McVeigh’s ongoing actions.

(vi) On 5 November 2018 Ms McVeigh sent another SLC internal briefing paper to Mr Freeland and others in which she repeated and added to the prejudicial statements about the claimant in her 19 September briefing as set out in paragraphs 47 and 48 above. The clear implications contained in this briefing note were that the claimant ought to have used SLC’s personnel service for A’s grievance (J178 para 3.2) and ought to have passed it to SLC sooner than 14 August (para 4.1). The briefing note does not make clear that the respondent - as an independent organisation (and data controller) - has its own HR function and legal advisers and that it does not normally pass grievances to SLC to deal with.

(vii) On 6 November 2018, Cllr Peter Craig (who went on, despite objections, to chair the claimant’s appeal against dismissal) asked Elouisa Crichton to provide him with a summary document, detailing what advice was sought by whom and when in respect of A’s grievance (J1080). An overview/timeline was provided to Cllr Craig by Ms Crichton on 7 November 2018 and he passed it to Ms McVeigh.

(viii) On 13 November 2018 the claimant was interviewed by Ms Milne as part of the fact finding process into A’s grievance. A week later, on Tuesday 20 November 2018, Ms McVeigh read out a series of misconduct allegations to the claimant in the midst of his wife’s health crisis. She followed this up with two emails, one of which referred to a ‘meeting of the Assessment Group’ (to which Group Ms McVeigh had appointed herself adviser). The other attached a letter under Ms McVeigh’s reference and signed by Cllr Peter Craig (J215) informing the claimant that he was suspended and that an investigation was to be carried out into a series of allegations against him in respect of his role as General Manager.

(ix) A’s grievance hearing on 29 November 2018 was chaired by Cllr Peter Craig. The hearing was one-sided with A being permitted to address the hearing at length and no response on behalf of the grievance subjects. The grievance was upheld in full.

(x) Ms McVeigh directed Ms Robertson’s fact finding investigation into the claimant. As discussed above, she was an essential witness given the terms of allegations 1 and 2 but she was not interviewed. She was nevertheless allowed to contribute but not transparently. It was Ms McVeigh who then sent the claimant his disciplinary hearing invite letter dated 7 February 2019 (J565). Despite her involvement in the events complained of, Ms McVeigh had once again appointed herself adviser, this time to the disciplinary panel. The panel for the claimant’s disciplinary hearing included Robert Craig, a board member who was also a witness against the claimant and Johan Steele, who had been on the panel for A’s grievance hearing. Cllr Convery then substituted Lindsay Freeland, CEO of SLC for Robert Craig. The claimant’s union representative Ms Baxter emailed Cllr Convery and objected to the inclusion of Mr Freeland on the Panel and Ms McVeigh’s appointment as HR Adviser to the Panel because of the prejudicial briefing notes Ms McVeigh had sent to Mr Freeland and others on 19 September and 5 November 2018. In relation to the briefing note of 5 November, Ms Baxter stated: “This later document was then circulated by email to a number of others by the Chief Executive on the 8th November 2018. It is unfathomable to think that the Chief Executive would forward on a document with which he disagreed….” It was pointed out that at least four other board members could replace Mr Freeland on the panel. Cllr Convery agreed to replace Ms McVeigh as HR Adviser to the Panel but refused to replace Mr Freeland. The Tribunal members were surprised by the proposed involvement of Mr Freeland in the disciplinary panel in light of the content of the briefing notes. It was difficult to see how he could possibly be expected to approach the matter impartially.

(xi) The appeal hearing did nothing to rectify the procedural injustice up to that point. As Mr Hardman submitted, both Cllr Craig and Mr Cunningham asserted that they did not consider their role was to reach an independent view on dismissal. They simply concluded that “all the evidence heard by the Disciplinary Panel was properly heard and conducted in a fair manner” (Cllr Craig WS 21). “Margaret Cooper in fact said to Peter Craig the Chair that we should not need to re-hear anything, but what if anything was flawed about the original process” (Craig Cunningham WS 8). Furthermore, the appeal panel was chaired by Cllr Craig who had ordered the fact finding investigation into the claimant’s handling of A’s grievance and had been involved in chairing A’s grievance hearing.

[142]For the reasons set out above and having reminded ourselves that we are not permitted to substitute our view on the issues above for those of the respondent, we concluded that the procedure used by the respondent was biased against the claimant and that it was well outside the band of reasonable procedures a reasonable employer might have used. It follows that the respondent acted unreasonably in treating the reason as sufficient for dismissal and that the claimant was unfairly dismissed. Wrongful Dismissal/Breach of contract (ET Extension of Jurisdiction (Scotland) Order 1994)(i) Did the respondent wrongfully dismiss the claimant?

(ii) If so, what is the claimant’s contractual entitlement to notice if properly served?

[143]In this case, the claimant also claims damages for breach of contract. It is his position that his summary dismissal was in breach of his contract of employment. The respondent states that the claimant was guilty of gross misconduct and that he was therefore in repudiatory breach of the contract entitling the respondent to dismiss him with immediate effect. The Tribunal’s task is to decide on a balance of probabilities who is correct as a matter of fact. The Tribunal accepted the submission of Mr Hardman that the claimant was not in repudiatory breach of the contract of employment. It follows that his claim for notice pay succeeds. (Question (x) is a matter for the remedy hearing).

[144]It remains for us to thank Mr Hardman and Mr Miller for their excellent presentation of their respective cases. Employment Judge: M Kearns Date of Judgment: 20 January 2022 I confirm that this is the Judgment in the case of Mr G Campbell v South Lanarkshire Leisure and Culture Trust 4107744/2019 and that I have signed the Judgment by electronic signature.