Employment Judge W A MeiklejohnMs K Norval (instructed by Solicitor) for respondentDate 26 September 2022
JUDGMENT
The Judgment of the Employment Tribunal in respect of the claimant’s application to amend is as follows -(a) to the extent that the claimant’s Further and Better Particulars submitted on 13 January 2022 and 17 January 2022 introduce new facts not mentioned in his ET1 , the application to amend is granted;(b) to the extent that those Further and Better Particulars introduce a claim of direct discrimination under section 13 of the Equality Act 2010, the application to amend is refused; and(c) to the extent that those Further and Better Particulars introduce a claim of disability arising from discrimination under section 15 of the Equality Act 2010, the application to amend is granted.
REASONS
[1]I dealt with a closed preliminary hearing in this case on 12 April 2022 at which the claimant participated in person and the respondent was represented by Ms Norval (the “12.04.22 PH”). In my Note following that hearing I summarised the procedural history of the case so I will not repeat that here.[2]At an earlier preliminary hearing on 14 December 2021 (also before me) I directed the claimant to provide further and better particulars of his claim. The claimant complied with my direction by submitting a number of documents. These included -(a) a document headed “ Further particulars to unfair dismissal and failure to make reasonable adjustments” submitted by the claimant on 13 January 2022 (the “13.01 .22 document”), and(b) a document headed “ Addition to further particulars” submitted on 17 January 2022 (the “17.01 .22 document”).[3]Recognising that these documents(i) introduced a number of facts not mentioned in the claimant’s ET1 and(ii) referred to types of disability discrimination, other than the claim of failure to make reasonable adjustments asserted in the ET1, including direct discrimination, the respondent objected on 3 February 2022. At this point the claimant had not actually made an application to amend but he did so in his email of 4 February 2022. In response to this the respondent, replying to an enquiry from the Tribunal as to whether they accepted that the claimant’s amendment application constituted a re-labelling of incidents already set out in the ET1 , renewed their objection. The respondent resubmitted a document headed “Objection to amendment application”. Overriding objective[4]I reminded myself of the overriding objective which is found in Rule 2 of the Employment Tribunal Rules of Procedure 2013 - Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable -(a) ensuring that the parties are on an equal footing;(b) dealing in cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. Case management orders[5]Rules 29 and 30 provide as follows - 29 Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to Rule 30A(2) and (3) the particular powers identified in the following Rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party did not have a reasonable opportunity to make representations before it was made. 30 Applications for case management orders(1) An application by a party for a particular case management order may be made either at a hearing or presented in writing to the Tribunal.(2) Where a party applies in writing, they shall notify the other parties that any objections to the application should be sent to the Tribunal as soon as possible.(3) The Tribunal may deal with such an application in writing or order that it be dealt with at a preliminary hearing or final hearing.
Applicable law
[6]I am grateful to Ms Norval for setting out a summary of the relevant caselaw dealing relating to amendments in her objection document. This included the case of Selkent Bus Co Ltd v Moore [1996] ICR 836 where Mummery J (as he then was) said this - “(4) Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels to facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions....(c) The timing and manner of the application 4111716/2021 Page5 An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.” 1. Parties are not at liberty to amend whenever it suits them to do so - Chandok v Tirkey2015 iRLR 195. The Court of Appeal reminded Employment Tribunals in Abercrombie and others v Aga Rangemaster Ltd 2013 IRLR 953 that in considering applications to amend which arguably raise new causes of action they should focus “not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and the legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. ”[8]In Reuters Ltd v Cole UKEAT/0258/17 the Employment Appeal Tribunal held that a Tribunal had been wrong to grant an application to amend a claim of discrimination arising from disability to include a direct discrimination claim. The amendment could not be a mere relabelling exercise because there was a higher test and different issues involved in a direct discrimination case.[9]Section 123 of the Equality Act 2010 deals with the time limit for presenting a claim under the Act. It provides as follows - 123 Time limits(1) Subject to section 140B, proceedings on a complaint within section 120 may not be brought after the end of - (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.(2) ....(3) For the purposes of this section - (a) conduct extending over a period is to be treated as done at the end of the period.... Amendments sought by claimant[10]In the claimant’s 13.01.22 document he included the following matters to which he had not made reference in his ET1 -(a) That he had emailed Mr P Ratti on 16 August 2021 to raise a grievance.(b) That he had emailed Mr Ratti on 26 August 2021 to ask for reconsideration of the decision on his reduced hours request.[11]In the claimant’s 17.01 .22 document he included the following matters to which he had not made reference in his ET1 -(a) That he had advised the respondent at his return to work meeting on 28 June 2021 that he expected to have problems with attendance because of his condition, and this had been recorded in the meeting notes.(b) That on 25 August 2021 he had told his supervisor that he was struggling with his ongoing health problems and had asked if he could use a half day of holiday to get some rest, which request was granted but the decision was then reversed, and that he then raised a grievance about this with Mr Ratti.[12]On 3 February 2022 the Tribunal wrote to the parties in terms which included the following - “Employment Judge Wiseman invites the claimant to give consideration to whether he does wish to bring another type of claim, or whether the information provided relates to the complaints already made.” 1 3. In his email reply of 4 February 2022, the claimant said this - “The only amendment would be to add an additional label of “direct discrimination” to a series of incidents already detailed in my ET1 which I said contributed to my constructive dismissal.”[14]To this the respondent objected. In her email to the Tribunal on 17 February 2022, Ms Norval stated - “The Respondent does not accept that the Claimant’s amendment application constitutes a “re-labelling” of incidents already set out in the ET1 Claim form. No mention is made of the incident of 25 August 2021, whereby the Claimant alleges to have made a holiday [rejquest which was initially allowed then refused. No mention is made of the Claimant’s subsequent complaint to Pier Luigi Ratti. Indeed, the Claimant acknowledges this in his “Addition to further particulars” dated 17 January 2022, when he says ‘There is only one other incident of potential direct discrimination I want to add which was not mentioned on my ET1”.”
Discussion
[15]Notwithstanding what the claimant said about his only amendment being the addition of a “direct discrimination” label, I was satisfied that he was in fact adding a number of factual matters which were not covered in his ET1. That was not surprising in the context of providing Further and Better Particulars. I considered that all of the factual matters referred to above could be categorised in that way (ie as Further and Better Particulars), apart from the events of 25 August 2021 . This was a new allegation of discriminatory conduct towards the claimant. I approached this on the basis of the Selkent relevant factors. Nature of the amendment 1 6. The explanation the claimant gave me at the preliminary hearing on 12 April 2022 for not mentioning the events of 25 August 2021 in his ET1 was that he initially 4111716/2021 Page8 felt they were quite trivial but on reflection he saw them as more significant. I would like to think that, if the claimant had been legally represented when his ET1 was prepared, his solicitor would have recognised that the events said to have occurred on 25 August 2021 were worthy of mention. I felt it was reasonably clear that an allegation that the claimant had asked to take a half day holiday because he was struggling with a health problem, and that this request had been granted then refused, was capable of forming the basis of a claim of failure to make reasonable adjustments, and potentially also discrimination arising from disability. 1 7. I reminded myself that the overriding objective includes ensuring that the parties are on an equal footing. Allowing the claimant to add a part of his narrative of events which he had initially omitted because he had not appreciated its significance, and which a solicitor might well have included, seemed to be consistent with putting the parties on an equal footing. It was not exactly at the bottom end of what I might call the Selkent spectrum, ie the addition of factual details to existing allegations, because it introduced a new allegation of discriminatory conduct. It might be better characterised as a missing piece of the existing narrative, said to involve a further discriminatory act, which the claimant had omitted but a solicitor almost certainly would have included. Applicability of time limits[18]The proposed addition of this allegation came well outwith the time limit under section 123 EqA for bringing a freestanding complaint about it. Was it just and equitable to extend time? I considered the factors listed in section 33(3) of the Limitation Act 1980 per British Coal Corporation v Keeble 1997 IRLR 336, while bearing in mind that the Court of Appeal said in Southwark London Borough Council v Afolabi 2003 ICR 800 that this checklist should not be followed slavishly, as follows -(a) Balance of prejudice - the claimant would be unable to bring this part of his claim if time was not extended; conversely the respondent would have to answer a complaint brought out of time.(b) Length of the delay - for an incident occurring on 25 August 2021 the primary time limit expired on 24 November 2021 , extended in this case by one day being the duration of ACAS early conciliation.(c) Reason for delay - the claimant’s explanation was as set out in the preceding paragraph, namely that he had not appreciated the significance of the factual matters he now sought to add.(d) Cogency of evidence - would not in my view be adversely affected in this case.(e) Co-operation with requests for information - not relevant in this case.(f) Promptness with which claimant acted - the claimant had provided his Further and Better Particulars when asked by me to do so.(g) Steps taken by claimant to obtain advice - not really relevant as the proceedings had already been raised.[19]Looking at matters in the round, I decided that this was a case where it would be just and equitable to extend time. The claimant was in effect arguing that there had been a course of conduct on the part of the respondent which amounted to unlawful discrimination. In his ET1 he had failed to mention one matter. There was a statable argument that the omitted matter formed part of a course of conduct extending over a period, and should therefore be treated as done at the end of that period. That only took the claimant so far, as the last act of alleged discrimination appeared to have occurred near the end of August 2021 so a claim brought on 13 or 17 January 2022 would be out of time. However, as an unrepresented party without the benefit of legal advice, seeking to pursue a claim in an area where the law is not without complication, there was a good argument that it was just and equitable to extend time. Timing and manner of the application[20]In relation to the timing and manner of the application to amend, it came about as a consequence of my directing the claimant to provide Further and Better Particulars. These had been sought by the respondent in its ET3 (at paragraphs 1 .5 and 1 .6 of the grounds of resistance). I believed it would be inequitable to count this against the claimant in assessing the balance of prejudice. 21 . By “balance of prejudice” I mean the balance between the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. I was satisfied that, in relation to adding the events said to have occurred on 25 August 2021 , that balance favoured the claimant. He had omitted part of the narrative of events. That omission was to his prejudice. The prejudice to the respondent lay in having to answer the allegation of discrimination founded on the events of 25 August 2021 , rather than in the addition of the missing facts. Addition of direct discrimination claim[22]The amendment sought by the claimant was to add the additional label of direct discrimination to the series of incidents already detailed in his ET1 which he said contributed to his constructive dismissal.[23]In approaching this I reminded myself of what the claimant had told me at the preliminary hearing on 12 April 2022. He said that he found it difficult to understand the difference between direct discrimination under section 13 EqA and discrimination arising from disability under section 15 EqA. I will try to explain briefly what that difference is.[24]Section 13 EqA (Direct discrimination) provides as follows - (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. . . .[25]This means that B must be able to point to having received less favourable treatment than an actual comparator ("A treats....”) or a hypothetical comparator (“A would treat....”). The comparator is a person whose circumstances are not materially different from B but who does not have the protected characteristic. The less favourable treatment must be because of the protected characteristic.[26]Section 15 EqA (Discrimination arising from disability) provides as follows -(1) A person (A) discriminates against a disabled person (B) if4111716/ 2021 Page 1 1 (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.[27]This means that B must be able to point to being treated unfavourably by A in circumstances where that treatment was because of something arising in conseguence of B’s disability. There is no requirement for an actual or hypothetical comparator to be identified. B needs to(i) specify the alleged unfavourable treatment and(ii) explain why the reason for that treatment was something which arose in consequence of his disability. In the present case the “something” said to arise in consequence of the claimant's disability might be his absence record and/or his fatigue.[28]In his 13.01.22 document the claimant twice referred to “discrimination arising from disability”. This was in relation to the disciplinary action taken against him and the withholding of company sick pay. Only in his 17.01 .22 document did he allege direct discrimination, relating to the events of 25 August 2021 . When the claimant made his application to amend on 4 February 2022, he sought to characterise the incidents mentioned in his ET1 as direct discrimination.[29]My view of this was that -(a) it served to confirm the claimant’s difficulty in differentiating between direct discrimination and discrimination arising from disability, and(b) reminding myself of the overriding objective and the need to ensure that, so far as practicable, the parties were on an equal footing, with the benefit of legal advice the claimant might well have (i) sought to add by way of amendment a complaint of discrimination arising from disability, rather than direct discrimination, in respect of the incidents mentioned in his ET1 and (ii) characterised the 25 August 2021 events as discrimination arising from disability, rather than direct discrimination.[30]If I had been dealing with the claimant’s application to amend, to add a complaint of direct discrimination, at a hearing I would in all probability have invited him to consider whether adding instead a complaint of discrimination arising from disability made more sense, particularly when he clearly had that in mind when preparing his 13.01.22 document I considered whether it would be a step too far, when dealing with the matter on the basis of written submissions, to treat the claimant’s application to amend as if it referred to discrimination arising from disability rather than direct discrimination. 31 . The overriding objective refers to avoiding unnecessary formality and seeking flexibility, avoiding delay and saving expense. I could deal with the claimant’s application to amend as it stood (ie to add a complaint of direct discrimination) but, if I refused that, I would have felt obliged to tell the claimant as an unrepresented party that he might wish to resubmit the application referring to discrimination arising from disability instead of direct discrimination. That would probably lead to another preliminary hearing, or consideration of further written submissions. It seemed to me that such a course would involve unnecessary formality and cause both delay and expense.[32]I was keenly aware that the respondent’s objection related to the claimant’s application to add a complaint of direct discrimination. If that application had been to add a complaint of discrimination arising from disability, might the respondent have objected on different grounds? I believed that this was unlikely. There would no doubt have been the same focus on the Selkent factors. The point about “exploration of different legal teste"would still apply.[33]I decided that it would be appropriate to treat the claimant’s application to amend as if it referred to discrimination arising from disability rather than direct discrimination. I considered that this was consistent with the overriding objective. If the respondent disagrees, and believes that the interests of justice require it, they have the right to seek a reconsideration under Rules 70-72.[34]As before, I considered the relevant factors per Selkent. Nature of the amendment[35]I believed that the passage from the decision in Abercrombie quoted above (see paragraph 7) was relevant here. Would adding a complaint of discrimination arising from disability involve substantially different areas of enquiry from a complaint of failure to make reasonable adjustments? There would certainly be the application of different legal tests. However, they would be applied to the same facts as found by the Tribunal. Allowing the amendment would not create the need for a new avenue of factual enquiry.[36]As I have already decided to allow the claimant to amend to add the events of 25 August 2021 , 1believed that the amendment now sought involved the addition of another label to facts already pleaded. What was already argued to be failure to make reasonable adjustments was now also argued to be discrimination arising from disability. Applicability of time limits[37]I believed that the points made at paragraphs 18 and 19 above applied equally here. Timing and manner of the application[38]In the respondent’s objection document there was reference to the case of Ladbrokes Racing Ltd v Traynor EA TS/0067/06 which indicates that a T ribunal should consider -(a) why the application is made at the stage at which it is made and why it was not made earlier;(b) whether, if the amendment is allowed, delay will ensue, and whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and(c) whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier.[39]In relation to point (a), my comments at paragraph 20 above also applied here.[40]In relation to point (b), I did not believe that granting the claimant’s application to amend should cause delay, nor cause the final hearing to be lengthened so as to involve additional costs. Dates for a final hearing have been fixed and the time allocated should be sufficient to deal with all matters including those brought in by my granting the claimant’s application to amend. 41 . In relation to point (c), as the final hearing should not require to be delayed, there should be no impact on the availability or quality of the evidence. I noted that the respondent had already included Mr Ratti in their list of proposed witnesses.[42]I considered the balance of prejudice in allowing or refusing the application to add a complaint of discrimination arising from disability. I found that the injustice and hardship to each party was finely balanced. The claimant would have the benefit of a second line of legal argument. The respondent would suffer the prejudice of having to answer that. I came to the view that the prejudice to the claimant in being unable to run that second line of legal argument outweighed the prejudice to the respondent in having to answer it.[43]In exercising my discretion as to whether or not to allow the amendment on the basis of the parties’ written submissions, I was applying Rules 29 and 30. That took me back to the overriding objective in Rule 2 as I was exercising a power given to me by those Rules. Doing so fairly and justly included ensuring that the parties were on an equal footing. I believed that if the claimant had had legal advice available to him, it was more likely than not that a complaint of discrimination arising from disability would have been brought alongside the complaint of failure to make reasonable adjustments.[44]For the reasons set out above I decided to allow the claimant’s application to amend(a) to add new facts not mentioned in his ET1 as set out in his 13.01 .22 document and his 17.01.22 document and(b) to add a complaint of discrimination arising from disability. I decided to refuse his application to amend (as originally submitted) to add a complaint of direct discrimination.[45]The respondent may, if so advised, amend its grounds of resistance to respond to the claimant’s amendment. Any such amendment to the grounds of resistance should be submitted to the Tribunal not later than 21 days from the date upon which this Judgment is sent to the parties. Employment Judge: Sandy Meiklejohn Date of Judgment: 26 April 2022 Entered in register: 29 April 2022 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111716/2021 Held in Glasgow on 27 – 29 June and 15 August 2022 Employment Judge A Strain Members – J McElwee & R Taggart Mr D Duployen Claimant In Person Whyte & Mackay Limited Respondent Represented by: Ms K Norval - Solicitor
Compensation
[46]The Claimant had no period of absence for the 12 months following the 15 Final Warning. The Final Warning had (according to the Respondent’s procedure) expired. There was clearly no “pattern” of absence. Further, the fact that the absences commencing 24 June 2021 were disability related (as accepted by the Respondent’s witnesses) and were those which had led to the issue of the Final Warning meant that they clearly 20 could not constitute a “pattern” as the absences were unrelated.[47]The fact that the invitation to the disciplinary hearing and the disciplinary hearing itself made no reference to a “pattern of absence” was also of significance.[48]The Respondent’s procedure clearly provided that a Final Warning 25 expired after 12 months. The only reasonable interpretation of that procedure in such an eventuality was that an employee returned to the position of a first absence following expiry of a Final Warning. In terms of the Respondent’s procedure that meant the Claimant should have been invited to a return to work interview and not subjected to a disciplinary 30 hearing. 4111716/2021 (A) Page 18[49]The tribunal accordingly conclude that the invitation by the Respondent to the Claimant to attend a disciplinary hearing was a breach of contract. The Respondent’s decision to withhold company sick pay from the Claimant for his absence on 21/22 July 2021.[50]The Respondent’s decision to withhold company sick pay was on the 5 basis that the Claimant had failed to inform them of his attendance at the workplace on 21 July to seek a phased return to work in advance. The Respondent asserted this was a breach of the self notification procedures. It was not disputed that the Claimant remained unfit for work on 21/22 July.[51]The Respondent further sought to justify the decision to refuse to pay sick pay for these on the basis that company sick pay was payable “at the Directors’ discretion”. This wording appeared in the Employee Handbook and was contractual. The wording appears at page 75 and actually states “Company sick pay remains at the discretion of the Company”.This, it 15 was claimed, was an unfetterred discretion.[52]The Respondent’s witnesses all gave consistent evidence that company sick pay was customarily paid. It would have been paid if the Claimant had not turned up at work on 21 July. In the circumstances whilst the Respondent claims discretion the tribunal do not consider this discretion 20 to be unfetterred and consider that it does appear the Respondent’s custom and practice is to consistently pay sick pay. In any event the tribunal considered that the Respondent’s discretion ought to have been exercised reasonably in all the circumstances and that this would be implicit in the term.[53]The Respondent’s exercise of discretion in the particular circumstances of this case was unreasonable and a breach of contract. 4111716/2021 (A) Page 19 The Respondent’s referencing the Claimant’s conduct at the disciplinary hearing on 27 July 2021[54]The tribunal do not consider there was a contractual term specified in this regard which could have been breached. Anticipatory Breach of Contract[55]The Claimant gave evidence and addressed the tribunal in his submissions to the fact he considered that he was going to be dismissed sooner or later due to the Respondent’s actions in failing to adjust trigger points, failure to make reasonable adjustments and issue of a Final Warning on the basis of his absences commencing on 24 June 2021.[56]Leaving aside the issues of reasonable adjustments (which are addressed below) the issue of a further Final Warning by the Respondent on 3 August 2021 was a breach of contract. As explained above the invitation to a disciplinary hearing following the absence of 24 June 2021 was a breach of contract. The issue of a Final Warning was the outcome 15 of that disciplinary hearing and, in terms of the Respondent’s own procedure, the Respondent should have reverted to stage one and not issued a Final Warning. To do so was a clear breach of contract.[57]The tribunal considered it reasonable in the circumstances for the Claimant to conclude that he would be dismissed for his further periods 20 of absence and that such dismissal would be in breach of his contract in the circumstances. Any such dismissal would be based on the Respondent’s procedure and the Final Warning which had been issued in breach of contract.[58]This was the last straw for the Claimant and the main reason he resigned.[59]Applying the law to the facts the tribunal considered and found that the Respondent’s conduct was a significant breach going to the root of the contract which clearly showed that the Respondent no longer intended to be bound by one or more of the essential terms of the contract (Western 4111716/2021 (A) Page 20 Excavating). The Claimant resigned in response to these breaches (actual and anticipatory) and there was no lengthy or significant delay. The Claimant’s claim of constructive dimissal is successful Unfavourable Treatment (section 15)[60]The Tribunal considered whether the Claimant had suffered unfavourable 5 treatment because of something arising in consequence of his disability. The Respondent’s decision to invite the Claimant to attend a disciplinary absence hearing after the absence on 24 June 2021.[61]The tribunal have already found the Respondent’s invitation to the disciplinary hearing was a breach of contract. The Respondent accepts 10 that the Claimant had a disability and that the absence on 24 June 2021 was due to his disability. The reason for the disciplinary hearing was the Claimant’s absence on 24 June 2021 which was due to his disability.[62]The accepted facts give rise to ( at the very least) an inference of discrimination.[63]Calling the Claimant to a disciplinary hearing due to his disability related absence in breach of their own contractual policy was clearly unfavourable treatment. No comparator is required in such cases.[64]The Respondent submitted that it had objective reasons for inviting the Claimant to the disciplinary hearing. These were his previous absences 20 and that the actions were a proprtionate means of achieving a legitimate aim – namely to manage absence.[65]The Claimant did have previous absences in respect of which the Final Warning had expired. The Respondent did not have any objective reason for inviting the Claimant to the disciplinary hearing in breach of its own 25 procedures.[66]Inviting the Claimant to a disciplinary hearing for one disability related absence was not a proprtionate means of achieving the legitimate aim of 4111716/2021 (A) Page 21 managing absence nor was the issue of a further Final Warning following that disciplinary meeting. It was a draconian and clearly excessive step to take against the Claimant in the circumstances. The Respondent’s decision to withhold company sick pay from the Claimant for his absence on 21/22 July 2021.[67]The tribunal note the Responent’s explanation that the reason for not paying company sick pay was due to the Claimant attending at the workplace unannounced. The tribunal consider it was a rather excessive and penal step to take against the background of a Claimant with a known mental health disability. The decision to do so was also a breach of 10 contract as referred to by the tribunal above.[68]The circumstances do give rise to the inference that the Claimant was discriminated against and singled out. He was certainly treated unfavourably and put at a disadvantage. It was normal custom and practice to pay sick pay.[69]The Respondent submitted that it had objective reasons. These were to ensure employees were engaged with and complied with their sickness notification obligations and refusing to pay sick pay was a proportionate means of achieving a legitimate aim.[70]Whilst that was a legitimate aim, the refusal to pay sick pay in the 20 circumstances was excessive and penal. It was not proportionate.[71]The refusal to pay sick pay clearly arose from the Claimant’s disability related absence and in the circumstances was unfavourable treatment and discriminatory. The Respondent’s referencing the Claimant’s conduct at the disciplinary 25 hearing on 27 July 2021[72]The tribunal did not consider that the references to the Claimant’s conduct at the disciplinary hearing on 27 July 2021 was motivated by anything in consequence of the Claimant’s disability. The tribunal 4111716/2021 (A) Page 22 accepted that there was no evidence to suggest the Claimant’s conduct at the meeting was impacted by his disability. Mr Linea overturning the holiday request on 25 August 2021 despite it previously having been granted by Mr Mielcarek.[73]The tribunal accepted the Respondent’s evidence that the reason for 5 refusing the request was that the request had been made at short notice and the team were busy. Mr Mielcarek had not granted the request. He said that he would consult with ML before reaching a decision. Failure to make reasonable adjustments[74]The PCPs relied upon by the Claimant were:a. The refusal of the Respondent to accommodate his reduced hours request (insistence that he work full time hours); andb. The Respondent’s failure to adjust the “trigger points” under its absence procedure. Reduced Hours Request[75]The Claimant asserted that his request to reduce his hours had been treated as a flexible working request rather than a reasonable adjustment request for someone with a disability. This was borne out by the evidence from the Respondent. The Claimant was advised by ED to make a flexible working request despite her knowledge that the reason for the requested 20 reduction in hours was the Claimant’s disability.[76]The requirement was for the Claimant to work full time hours. This was confirmed by the Respondent’s witnesses who all gave evidence to the effect that reduced working hours could not be accomodated due pressures the Respondent were under such as the growth of business 25 following the pandemic, recruitment and retention isues exacerbated by Brexit, the team were all working full time so could not pick up extra hours, potential delays in sales orders and the Claimant’s failure to consider a 4111716/2021 (A) Page 23 further reduction in working hours to accommodate job share (which the Claimant disputed).[77]The Respondent’s position was that there was no such PCP as the Claimant had been offered a further reduction in hours as this would have made it easier to recruit on a job share basis. This was disputed by the 5 Claimant. The tribunal accepted and preferred the Claimant’s evidence that he was not offered the further reduction in hours or that it was explained to him this would have made it easier to recruit on a job share basis. ML’s evidence was unatisfactory on this point and vague. He also conceeded that no agency workers had been asked if they could cover 10 the Claimant’s shifts which further undermined his evidence on this point.[78]The tribunal find that the Respondent did apply the PCP as claimed. Failure to adjust trigger points[79]The tribunal considered the Respondent’s Disciplinary Absence Management Procedure. It set out clear “trigger points”. It did not provide 15 for adjustment to them nor did it provide for absences related to disability. The trigger points were a PCP applied by the Respondent.[80]The tribunal did not accept the submission by the Respondent that the Respondent retained the ability to and adjusted the trigger points. The Respondent’s procedure was rigid and inflexible and took no account of 20 disability related absences. Substantial Disadvantage[81]The requirement to work full time hours placed the Claimant at a substantial disadvantage in comparison to people without disability. The actual functional effects of the disability were that the Claimant could not 25 work full time hours. As such he was clearly and substantially disadvantaged in comparison with those who did not have a disability and could work full time hours. 4111716/2021 (A) Page 24[82]The failure to adjust trigger points also placed the Claimant at a substantial disavantage in comparison with those who did not have a disability. The trigger points took no account of disability or indeed disability related absence. The Claimant’s absences from 24 June 2021 onwards were disability related. No adjustment was considered or made 5 to the trigger points to take account of disability related absence. In fact, the Claimant was issued with a Final Warning arising from his first period of disability related absence. This showed a completely inflexible and blinkered approach by the Respondent.[83]The submission by the Respondent that the trigger points applied equally 10 to all employees fails to take account of the fact the Claimant’s absence was disability related. Did the Respondent know or ought reasonably to have known that the Claimant was likely to be placed at a substantial disadvantage as a result of the PCP?[84]The tribunal consider that the anwer to this question is yes. The 15 Respondent was well aware of the impact of the PCPs on the Claimant from the content of the Occupational Health Reports and from the Claimant himself. They knew or ought reasonably to have known the impact of working full time hours upon the Claimant and the impact of the trigger points on the Claimant’s absences due to his disability. Did the Respondent take such steps as were reasonable in order to avoid the disadvantage?[85]The tribunal consider there to have been an abject failure by the Respondent to consider reasonable adjustments in light of the PCPs and the Claimant’s disability. The whole approach had been wrong from the 25 start. The Respondent did not take into account the Claimant’s disability in the application of the PCPs or their disciplinary procedure. This is underscored by the application of a procedure which is disciplinary in nature and makes no reference to disability. It is further underscored by the treatment of the Claimant’s request for reasonable adjustments as a 30 flexible working request. 4111716/2021 (A) Page 25[86]The Respondent adopted an inflexible approach to the request for reduced hours. This was treated as a flexible working request and did not take into account his disability. The Respondent did not consider utilisation of agency workers who were in use at the workplace to facilitate the Claimant working on reduced hours.[87]The tribunal does not consider the Respondent to have advanced objective reasons to conclude that working reduced hours was unreasonable. Agency workers may have been able to cover the Claimant’s hours.[88]The Respondent’s approach to the application of the trigger points was 10 equally inflexible. The Respondent took no account of the fact the absences were disability related and imposed a Final Written Warning on him in any event. There was no attempt by them to adjust the trigger points to accommodate and take account of the Claimant’s disability. Adjustment of the trigger points would have been fair and easonable 15 adjustment to make in the circumstances.[89]The claim in respect of a failure to make reasonable adjustments is successful.
Remedy
[90]The Claimant is entitled to a Basic Award of £1,731.48. Mitigation of Loss[91]The tribunal finds that the Claimant has failed to mitigate his loss. He has made few attempts to obtain alternate employment. 5 applications since the termination of his employment is wholly inadequate (over a period of 9 months). He had secured alternate employment at the point of 25 resignation. He remains unfit to work full time hours. The tribunal accordingly considers that any financial loss should be restricted to 6 months. The Claimant ought to have been able to secure suitable alternative employment within that time frame. 4111716/2021 (A) Page 26[92]The Respondent submitted that any award should be reduced by the Claimant’s failure to appeal the decision to issue a Final Warning. The tribunal does not consider that the Claimant failed to adhere to the ACAS Code of Practice on Disciplinary and Grievance Procedure in not doing so in the circumstances of this case. Even if it had it would not have 5 reduced the amount of compensation. Compensatory Award Financial Loss for Discrimination[93]The tribunal awards 6 months net pay under deduction of earnings and benefits received as compensation for discrimination.[94]This equates to 26 weeks x £303.20 = £7,883.20. The Respondent paid an employer pension contribution of £45.56 per week. This equates to 26 x £45.56 = £1,184.56. The Claimant’s loss of statutory rights is accepted at £500.[95]The Claimant’s total financial loss is £9,567.76.[96]The tribunal deducted the sum of £4,770.60 in respect of earnings and benefits received. The tribunal did not deduct the self isolation grant of £500.[97]The total compensatory award financial loss element is £4,797.16 Injury to Feelings[98]The tribunal considers and finds that the Claimant did suffer embarrassment, humiliation and distress as a consequence of the discriminatory treatment by the Respondent. He was ocassioned stress, worry and upset. The treatment had a detrimental impact on his mental health and impacted on his relationship with his wife.[99]The tribunal considers the injury to feelings ought to reasonably be assessed at the upper end of the lower range in Vento. The tribunal awards the sum of £7,500 in respect of injury to feelings. 4111716/2021 (A) Page 27[100]The total compensatory award for discrimination is £12,297.16 Reinstatement The tribunal accepted the Respondent’s submission that reinstatement should not be ordered on the basis that the relationship between the Parties had clearly broken down. This was evident from the Claimant’s 5 submissions and evidence as to the credibility of his line managers and their treatment of him during his employment with the Respondent. The Claimant described ML as unhelpful, unpleasant and that the made the Claimant feel he was a nuisance. Reinstatement was not reasonably practicable. Employment Judge: A Strain Date of Judgment: 26 September 2022 Entered in register: 29 September 2022 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111716/2021 Reconsideration Hearing held in chambers remotely by CVP on 9 March 2023 Employment Judge A Strain Members J McElwee & R Taggart Mr D Duployen Claimant [by Written Representations] Whyte & Mackay Limited Respondent [by Written Representations] Represented by: Ms K Norval – Solicitor