Christopher BannanClaimantTurners (Soham) LtdRespondent
Before
Employment Judge L DohertyDate 8 June 2021
JUDGMENT
The Judgment of the Employment Tribunal is ;(a) the claimant is a disabled in terms of Section 6 of the Equality Act 2013 (the EQA);(b) the Tribunal shall exercise its discretion under Section 123 (1) (b) of the Equality Act 2010 to extend time to allow the complaint of disability discrimination on the grounds that it is just and equitable to do so.
REASONS
[1]The claimant presented a complaint of unfair dismissal and disability discrimination on 16 December 2019. This was a Preliminary Hearing (P H) to consider two preliminary issues arising from the claim.[2]There have been two PH’s for the purposes of case management, further to which this PH was fixed in order to determine whether the claimant was a disabled in terms of the EQA, and to consider whether the tribunal had jurisdiction to consider all or any part of his disability discrimination claim, on the grounds that it was time-barred[3]There were five sets of documents before the Tribunal which set out what the claimant identified as his disability discrimination claim. Those were; a) the ET1; b) an undated document called ‘Claimant’s Statement of Facts’ c) the claimant’s further and better particulars of the claim, lodged on 22/06/20 after specific direction had been issued by EJ Hoey at a PH on 30/4/20 as to what information the claimant requited to produce in relation to his disability discrimination claim; d) the Claimants response to the Respondents Amended response, lodged on 31/08/20 ; e) a schedule identifying alleged discriminatory acts and when they are said to have occurred, lodged on in 17/01/21 in response to a direction from EJ Eccles at a PH on 15/12 /20 that the claimant should provide a chronological list of the alleged acts of discrimination, and who is said to be responsible for them.[4]From the most recent schedule which the claimant produced it was apparent that he was alleging discrimination occurred on 31 July 2017, and in November 2017, followed by a number of allegations of discrimination which is said to have taken place over 2018. The claimant also identified what he categorises as two further acts of discrimination. One is said to have taken place on 28/01/20, which is an email to the respondent’s HR department questioning missing correspondence from information available under a subject access request (SAR), from which the claimant says it was obvious that records had been kept from him. The second act said to have taken place on the 7 February 2020, which is his SAR to the OH provider.[5]It is the claimants position that there was a continuing act of discrimination culminating in the alleged act on 7 February 2020. It is also said by the claimant that he made a SAR from which he received documentation on 23 August 2019 which he had not seen before and which demonstrated that discrimination occurred.[6]In considering disability status, the tribunal has to consider whether the claimant was disabled at the relevant time. On the basis of the claimant’s schedule it was agreed that the relevant time runs from 31 July 2017 till the conclusion of the claimant’s employment in September 2019.[7]It is accepted by the respondents that the claimant has an impairment, which is arthritis in his left hip. It is also accepted that arthritis is a progressive condition. It is not accepted that that impairment had an adverse effect on the claimant’s ability to carry out day to day activities during the relevant period.[8]In considering whether the tribunal has jurisdiction to consider the claim, it has to consider if the claim was made on time, and if not whether time should be extended on the grounds that it is just and equitable to do so. If relevant, the Tribunal also has to consider whether the complaint was of acts extending the period, and whether the last alleged act was in time.[9]The hearing took place by way of CVP. The claimant represented himself, and the respondents were represented by Mr Newman, solicitor.[10]The claimant gave evidence on his behalf, and he lodged a bundle of documents, Findings in Fact[11]The claimant, whose date of birth is 29/07/1965 was employed by the respondents as an HGV driver from May 2012 until he resigned from that employment in September 2019.[12]From around 2106 the claimant had experienced back pain, which was noticeable when he drove at work. He had complained about this at work.[13]Around the beginning of 2017 the claimant began to experience pain in his groin which he described as ‘slowing him down.’ He noticed he was unable to kick a ball with his left foot.[14]The pain which the claimant was experiencing did not subside, and the claimant decided to attend his GP in July 2017. His GP told him that she thought he had arthritis, and he was referred immediately for an x-ray.[15]The claimant was x-rayed at the hospital on 31 July 2017, the report of which is produced at page 10 of the claimant’s bundle. Under clinical history, the report states; Pain in left groin radiating to the knee Ltd external rotation query osteoarthritis. Findings; Moderate to severe degenerative change affecting the left hip joint with almost complete loss of joint space height at the weight bearing lateral part. Somewhat presumed phleboliths seen in the pelvis on the right. Presumably you refer this patient to an orthopaedic surgeon?[16]The claimant was referred to an orthopaedic surgeon, whom he saw in Monklands hospital approximately 6 to 8 weeks after his x-ray. He was diagnosed by the surgeon as having osteoarthritis in his left hip. He was advised that arthritis is a degenerative condition, and that ultimately it may require surgery, by way of a hip replacement. The advice he was given was to hold off as long as he could before having a hip replacement operation in order to give that operation the best chance of being effective over a longer period.[17]It was recommended to the claimant that he manage his condition by taking painkilling medication. The claimant took ibuprofen and paracetamol as required to manage his condition.[18]The claimant attended an orthopaedic surgeon again in February 2018, and from time to time he attended his GP during the period from 2017, to September 2019.[19]The claimant has recently been referred for a hip replacement operation.[20]The claimant’s condition has progressively worsened during the period from 2017 to date.[21]In July 2017 the claimant experienced difficulty in bending down to pick things up. He experienced difficulty in putting on his socks, or to tying his bootlaces. He could not stretch down sufficiently to do so without discomfort.[22]His condition developed so that the claimant can longer get up from a kneeling position without assistance. By July 2018 he was experiencing discomfort in doing so and by he now he needs assistance to so; he finds it difficult to get out of an armchair without the assistance of family members to pull him up out of the chair.[23]The claimant has become more limited in how long he can walk. In 2018 any walking occasioned pain but the claimant could walk for a maximum of 60 minutes before he had to stop. The length of time which the claimant is able to walk has diminished, and he can now only walk for 20 minutes, and he cannot walk at all on uneven ground.[24]The length of time which the claimant can stand has been affected by his condition. By 2018 he was experiencing pain standing at work. His ability to stand has reduced, and the claimant can now only stand for around 10 minutes.[25]By 2018 the claimant experienced pain at night which caused him to wake.[26]From 2018 the claimant experienced discomfort driving. He suffered pain in his leg up to his knee when driving. He had to adjust the chair in the cab of his HGV vehicle so that he could stretch his left leg. Since the beginning of 2019 the claimant has experienced difficulties in getting in and out all vehicles particularly small vehicles.[27]Because of the walking involved, the claimant now avoids shopping.[28]The respondents made a referral for the claimant to occupational in June 2018. As part of the referral the claimant completed an occupational health questionnaire. In response to a question about details of his condition the claimant stated; ‘I have arthritis in my hip. I get back, leg, groin pain standing for long periods of time’. The claimant saw Occupational Health Advisor on 4 July 2018. His report is produced page 15/16 of the claimant’s bundle. The report contains the following; Chris states that he has been diagnosed with arthritis affecting his left hip. This is a progressive condition that results in pain and stiffness in the joint and will ultimately require a hip replacement at some point in the future. His symptoms are variable on a day-to-day basis and Chris informs me that the symptoms are affected by prolonged static positions such as standing. At present Chris does not need to take any medication, however, this could change should his symptoms dictate in the future. Chris states that there is no current impact upon his normal day function although he can experience some sleep disturbance due to his condition but this settles after changing position. One assessment today Chris has a full range of movement in all his major joints although he did have some very slight difficulty getting up from a kneeling position. He informs me that he is able to walk for up to 60 minutes without any great difficulty. Recommendation Given the above, I would advise that Chris is fit to undertake his role. However, due to his current symptoms, he will have to be able to alternate between sitting and standing. You should arrange it for a review of Chris’s manual handling risk assessment and explore the opportunity of providing him with portable sitting at jobs as required that can be used for those tasks that required him to stand’.[29]Prior to seeing occupational health the claimant signed a declaration consenting to the occupational health report being sent to him at the same time as his employer. The claimant received a copy of the OH report which was dated 4 July 2018.The claimant believed that his employer should have provided him with some kind of support to use work, and that they should have done so from some point in 2017 or 2016 when he first complained of suffering back pain. He considers that they discriminated against him by not doing so.[30]The claimant also believes that his employers have discriminated against him in that he considers that they should have entered into a dialogue with him about his disability and the effects of this on his ability to carry out his job, from August 2017 when he made his diagnosis known to his line manager, Jenna Deans, but that the respondents did not do so.[31]The claimant received documents from a subject access request on 23 August 2019. These included an email from Ms Santos of the respondent’s HR Department to occupational health dated the 18/08/18 . The email stated that on receiving the occupational health report she had some concerns/comments and she sought further assistance. The email goes on to state; ‘The report we had access to from Chris is dated July 2017, did the employee say that he has been checking the progression of his arthritis with his GP? A routine/follow-up appointments? Is there a measurement to say his current level of arthritis/restriction? When we initially saw Chris, he mentioned specific concerns with Ineos (he is asked to stand for 40 minutes, but this can happen as often as four times per day). For the duration of the delivery (i.e. 40 minutes) it’s mandatory that he is standing alert to everything around him, controlling the delivery. You recommended a portable seating but it is illegal to have. It’s a legal requirement that the driver is standing, walking around if necessary and control all aspects of a delivery, especially when he is delivering such dangerous substances. This will not be deemed as a recommendation as will be instructing a driver to break the law. At this delivery site (Ineos) such as the others, the driver is required to stand, walk around if he prefers but only for the full length of the vehicle. Are there any exercises/stretch movements that you recommend? Could it be that would restrict his Ineos duties to one delivery every 1 or 2 weeks?[32]The claimant considers that this email misrepresented the position in relation to the mandatory nature of his standing, the length of the delivery time, and the ability of the driver undertaking such a delivery to walk around the length of his vehicle.[33]The claimant considered that this disclosed evidence to the effect that the respondents were discriminating against him. He considered that the email challenged the occupational health report with false statements, and was therefore discriminatory. He considered that respondents were trying to get the OH provider to change their recommendation, which was discriminatory on their part.[34]As part of his SAR the claimant also received emails between the respondent’s Ms Santos, and the occupational health provider regarding the report issued by OH in September 2018 and their letter with further information in October 2018.[35]The occupational health provider provided supplementary information on 4 October 2018 (page 25), which the claimant received shortly before the commencement of a welfare meeting he attended with the respondents on 24 October 2018.[36]The claimant understood that the welfare meeting had not reached a conclusion. He believed it had been ‘abandoned’ after he became upset about comments made to him in the course of the meeting. The claimant believed that the meeting was it was to be continued. He did not ask for a resumption of the meeting at any point prior to his resignation.[37]The claimant received notes of the welfare meeting in the SAR documents he received in August 2019, from which he understood that the company regarded the meeting as having been reconvened and the matter closed off. He did not agree that that was how matters were left at that meeting.[38]By October 2018 the claimant felt under a very significant amount of pressure at work due to a number of factors. Those were the fact that he considered he had been receiving death threats from another driver who was in a relationship with his manager, Ms Deans; the fact that he considered that HR were not responsive to his grievances; and the Welfare meeting in October had been abandoned.[39]The claimant was absent as unfit for work from April 2019 until September 2019, when he resigned.[40]The claimant has had previous experience of being involved in Employment Tribunals. He was aware of the function of an Employment Tribunal and that it was able to consider complaints of discrimination in the workplace.[41]The claimant contacted ACAS to commence early conciliation in the 16 August 2019, prior to his employment coming to an end. An Acas certificate was issued on 30 September 2019.[42]After the claimant resigned he contracted ACAS again, on the 4 October. The date of issue of the ACAS certificate is 4 December 2019.[43]The claimant presented his complaint of constructive unfair dismissal and disability discrimination on 16 December 2019. Note on Evidence[44]The Tribunal heard from the claimant and formed the impression that his evidence was in the main and credible and reliable, albeit it also formed the impression that the claimant’s view of matters was from time to time influenced to a degree by the extent to which considered he had been wronged by the respondents.[45]For purposes of the issues which the Tribunal has to determine that this PH, there was not a great deal of relevance which was in dispute.[46]There was one point in issue however, and that was in relation to whether what was recorded in the OH report about the claimant’s condition in 2018 accurately reflected the position. The relevant part of that report is set out above, and notes that the claimant advised there was no impact on his dayto-day function. It was also noted that the claimant has some slight difficulty in getting up from a kneeling position.[47]In his evidence the claimant disputed that he only had slight difficulty in getting up from a kneeling position; he also said that he had advised the OH clinician that he could walk for 60 minutes absolute maximum, as opposed to without any great difficulty.[48]The claimant’s evidence was that he always suffered pain when he was walking, but in 2018 he could tolerate walking for a maximum of 60 minutes before he had to stop, and that distance has reduced over time.[49]The claimant also said that he told the OH adviser that he experienced pain when he was driving, and explained the changes he had to make to the seat in the cab of his truck to accommodate this.[50]Mr Newman attacked the credibility of the claimant’s evidence on the basis that he had not previously challenged the content of the OH report, and that to do so was self-serving.[51]On balance, the Tribunal accepted the claimant’s evidence about these matters, even if there was a degree of conflict between his evidence and what was recorded in the OH report. In reaching this conclusion the Tribunal take into account that in its view the claimant did not seek to embellish or exaggerate the effects of this condition. For example, the claimant accepted that he could walk for 60 minutes and 2018; when asked about how long he could stand for the purposes of cooking, he accepted he could stand for a much longer period in 2018 that he can now. He explained that he had enjoyed cooking, and would take sometimes hours to prepare a meal, and that he could do so in 2018, but that he can no longer do this. He also accepted that he can still stand for a sufficient period in order to make dinner for the family.[52]The fact that the claimant did not seek to exaggerate the position, and was prepared to make appropriate concessions as to his abilities, persuaded the Tribunal that on balance his evidence as to what he could do in 2018, and what he reported to the OH advisor in 2018, was to be accepted. Further it did not appear to the Tribunal that the degree of conflict between the claimant’s evidence and the OH report was not so significant that it could not be reasonably be explained by different emphasis in the claimant’s recollection of what was said at the OH consultation and what was recorded at the time by the OH clinician.[53]The Tribunal has also made some findings as to what occurred in the workplace on a limited basis, given the remit of this PH. The Tribunal accepted the claimant’s evidence as to his engagement with the respondents in relation to advising them in 2016 that he was experiencing pain, and his attendance at the Welfare Meeting in October 2080, and how he understood this had been concluded. These findings have been made on the basis of the claimant’s evidence only, and the Tribunal has not heard from the respondent’s witnesses these points. This Tribunal’s findings in fact on matters which may subsequently become contested will not bind any future Tribunal. Submissions[54]Both parties helpfully produced written submissions, which they supplemented with oral submissions. Claimant’s Submissions[55]The claimant submitted that his claim was in time and referred to the two ACAs certificates he had obtained.[56]The claimant made submissions with regard to his interactions with his manager, and his diagnosis of arthritis in his left hip in August 2017.[57]The claimant also submissions with regard to his arthritis, the effect this had upon him, the medical advice which he obtained.[58]The claimant submitted that when he obtained information from an SAR in August 2019 this showed that there had been a continuing act of discrimination based on his disability, in that the respondents had failed to make reasonable adjustments for him, and he made submissions about the basis of his complaints of disability discrimination.[59]The claimant took some issue was part of the contents of the OH report, and made submissions in relation to that. He also made submissions about an email from the respondent’s HR department to the OH advisor on 31 August 2018, submitting that the questions asked then should have been asked earlier. He also submitted he should have been included in a dialogue about his condition. The claimant also submitted that this email demonstrated there was a failure to make reasonable adjustments on the part of the respondents.[60]The claimant referred to information obtained through the SAR about a Welfare Meeting which took place in October 2018. He submitted the reason he had not raised the disability discrimination claim was that he was told there would be a further the meeting and he was under mental stress due to another incident. His admitted he had been signed off work ill, and it was not until he received the SAR in August that he realised the full extent of the disability discrimination which had occurred. At that stage he was still carrying on with grievances with the respondents in relation to bullying and harassment.[61]The claimants submitted the information in the SAR demonstrated that there was a continuing act of discrimination. Respondents Submissions[62]Mr Newman for the respondents took the tribunal to the questions which it had to address at this PH, and the relevant law.[63]He referred the tribunal to Swift v Chief Constable of Wiltshire Constabulary (2004) IRLR 540, and the four questions which the tribunal should ask in considering disability status.[64]Mr Newman submitted that the burden of proof rested with the claimant to establish disability status and referred to Kapadia v London Borough of Lambeth (200) IRL all699 (CA). He also referred the tribunal to the Equality Act 2010 Guidance on determining for the purposes of the Act whether a person is disabled.[65]Mr Newman submitted that the claimant had not established disability status in that he had not provided any medical evidence to support the assertion that he was disabled in July 2017, save the radiology report which does not address any of the relevant questions apart from confirming the diagnosis.[66]He submitted the only document available to the Tribunal was the Occupational Health report, and he referred to the terms of that, submitting the claimant’s evidence was imprecise, and refers to his current condition, as opposed to his condition at the relevant time.[67]Mr Newman accepted that the claimant suffered from a progressive condition, but his position was that there was no evidence that he had suffered an adverse effect as a result of that condition in 2017/2018.[68]Mr Newman referred the tribunal to the ECHR Guide in relation to normal dayto-day activities, and submitted that remaining in a prolonged static position was not normal day-to-day activity. He also made submissions as to substantial adverse effect, referring to the Appendix to the EQA; experiencing some tiredness or minor discomfort as a result of walking unaided of a distance of around 1.5 km did not amount to a substantial adverse effect. Mr Newman submitted on the evidence available to the tribunal the claimant was able to do this.[69]Mr Newman submitted that when assessing the claimant’s condition at the relevant time which was 2017/18, there was the fact no effect on his day-today activities, and the progressive development of this condition in the context of adverse effect on day-to-day activities commenced later.[70]Mr Newman then addressed the tribunal on the question of jurisdiction, referring to the provisions of section 123 (1) of the EAQ. He reminded the tribunal that the burden of proof rests with the claimant - Department of Constitutional Affairs v Jones (2008)IRLR 128. He also tribunal reminded the tribunal that the exercise of discretion to extend time remains the exception and not the rule - Robertson Bexely Community Centre t/a Leisure Link 2003 IRLR 434 CA.[71]Mr Newman made submissions as to the factors which it was relevant for the Tribunal to take into account in considering the exercise of this discretion with reference to British Coal Corporation v Keeble (1997) IRLR 336.[72]In relation to the duty to make reasonable adjustments, Mr Newman submitted that the period within which the employer is reasonably expected to comply with this duty to make reasonable adjustments is assessed from the employees point of view - Kingston upon Hull City Council v Matuszowicz (2009) EWAC 22, adopted in (Abertawe Bro Morgannwg University Local Health Board v Morgan ( 2018 ) EWCA Civ 640.[73]Mr Newman submitted that the claimant’s complaint regarding being placed on for Ineos loads arose in my 2018. He first complained about this in November 2017. The claimant first contacted ACAS on 16 August 2019 to commence conciliation, and did so again on fourth October 2019. This claim was lodged16th December and therefore any complaints about matters before 5 July 2019 were time-barred.[74]In relation to the evidence, Mr Newman reminded the tribunal about the claimant’s comments addressing questions about his Amended Grounds of Resistance. He submitted that the claimant said all of his complaints of discrimination related to the Ineos contract which he says arose in 2016, and the respondents submitted crystallised no later than May 2018.[75]Mr Newman submitted that the claimant was aware of the facts which gave rise to his claims, and accepted this in cross examination. He also accepted he was aware of the contents of occupational health report, and the follow-up letter from occupational health, and that he had attended the welfare meeting in October 2018.[76]Mr Newman submitted that the claimant’s evidence in relation to the SCR and knowledge that it provided was not compelling, and did not give rise to any knowledge of discrimination at all. The claimant has failed to establish that there was a continuing act of discrimination ending in 2019. All of the complaints were of acts said to have taken place in 2017 or 2018. The two alleged complaints said to have taken place in 2020 could not even be said to be complaints of discrimination and should be discounted.[77]Mr Newman submitted that the additional materials which the claimant received did not explain the delay.[78]Mr Newman referred to the length of the delay, and submitted the claimant provided no cogent explanation for it. He failed to act promptly, and he knew there were issues he could have complained about. He knew the protections afforded to him in the context of discrimination complaints being available as he has previous experience of Employment Tribunals, but did nothing until 2019.[79]Mr Newman submitted the cogency of the evidence could be affected by the delay in bringing proceedings. He submitted that the majority of the claimant claims would in all likelihood have been heard at a substantive hearing before now, and even now, there would be a delay in the listing was of substantive hearing, which would be unlikely to be listed until the end of 2021. He submitted this delay in proceedings would inevitably affect the witnesses ability to recall events clearly, the respondents did not believe for a fair hearing could take place on all the issues being pursued by the claimant.[80]Mr Newman then addressed the Tribunal on the prejudice which should be caused to the respondents. That is that they would have to deal with allegations which in some cases were more than three years old, and that this was greater than the prejudice which the claimant faces, given that he had every opportunity to bring the claim on time. Mr Newman submitted that was no credible explanation for the delay. Further, the claimant already has an unfair dismissal claim before the tribunal.[81]Mr Newman’s position was that dismissal of the disability discrimination claims would allow matters to be dealt with in a manner which was consistent with the overriding objective in the Tribunal Rules. The claimant was seeking to unreasonably complicate a case which is at its heart is unconnected to discrimination, and which his legal adviser was unable to explain for at the first preliminary hearing.[82]Mr Newman submitted that the claimant’s discrimination complaint should be struck out, as the claimant had failed to show any good reason why the Tribunal should exercise discretion to extend time to allow it. Consideration Disability Status
Consideration
[83]The Tribunal began by considering the relevant legislation. Section 6 of the Equality Act 2010 provides: (1) A person (P) is disabled if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. Schedule 1 provides: PART 1[84]The respondents accept that the claimant suffers from an impairment which is arthritis in his left hip, and that this is a progressive condition. The respondent’s argument is that during the relevant time, the effect of that impairment was not such that it could be considered as an adverse effect.[85]Mr Newman submitted that the claimant had not provided any medical evidence to support the position that he was disabled in July 2017, save the Radiology Report which did not address the relevant questions, save confirming diagnosis. He submitted the claimant’s evidence was vague as to the effects of this condition 2017/18, and to the extent that there was such evidence it did not support the conclusion that it had an adverse effect upon the claimant’s ability to carry out day-to-day activities. He submitted that the majority of the claimant’s evidence about the effective of his impairment related to his condition now, and was imprecise as to when that adverse effect commenced. He referred to the terms of the OH report, which he submitted did not support the conclusion that there was any effect on day to day function. Mr Newman submitted that the claimant’s evidence in chief had to be considered in context, and while the claimant is restricted now, the starting point for any adverse effect on any day to day activities must be after July 2018.[86]The Tribunal was satisfied that the claimant has suffered from arthritis in his left hip since from July 2017 and that arthritis is a progressive condition.[87]It therefore considered the effect of Schedule 1 paragraph (8) (1) and (2). The effect of that section is that when a person with a progressive condition experiences symptoms which have an effect on their normal day-to-day activities, they will be taken as having a disability. The effect does not need to be substantial. In order to benefit from the protection afforded by this section however, the claimant must show that his impairment has an adverse effect on his ability to carry out normal day-to-day activities, and that it is likely to have a substantial adverse effect in the future. The claimant still needs to demonstrate that the effect of the impairment is long-term.[88]In considering whether the claimant had established that this impairment had an adverse effect in 2017 or 2018, the tribunal reminded itself that it was not determining whether the effect of the claimant’s impairment in 2017/18 was a substantial adverse effect on his ability to carry out day-to-day activities, but only if there was an adverse effect.[89]The Tribunal was assisted in this task by the examples given at B20 of the Guidance. Those include the following; A young boy aged 8, has been experiencing some muscle cramp and some weakness. The effects are quite minor at present but he has been diagnosed as having muscular dystrophy. Eventually it is expected that the resulting muscle weakness will cause substantial adverse affect on his ability to walk, run and climb stairs. Although there is no substantial adverse effect at present, muscular dystrophy is a progressive condition and this child will still be entitled to the protection of the Act if it can be shown that the effects are likely to become substantial.[90]The Tribunal was satisfied that by July 2017 the claimant was experiencing difficulty in stretching down to pick things up and on bending down to put on his socks and to tie his bootlaces. He gave clear evidence as to this in evidence in chief. Dressing is a normal day to day activity (D 3 of the Guidance). Applying the Guidance the Tribunal was also satisfied that experiencing difficulty and discomfort in undertaking these tasks was sufficient to constitute an adverse effect on the ability to carry out day to day activities.[91]In addition, the Tribunal was satisfied that by 2018 the claimant could not walk for more than 60 minutes, and that he experienced pain on walking, standing, and driving which are day to day activities (D3).[92]Again, applying the Guidance, the Tribunal was satisfied that experiencing some level of pain or discomfort in undertaking these tasks and some limitation in walking, was sufficient to constitute an adverse effect on the ability to carry out day to day activities.[93]Having reached that conclusion, the Tribunal went on to consider whether it had been shown that the effect of the claimant’s condition was likely to have a substantial adverse effect on his ability to carry out normal day-to-day activities.[94]It was relevant in this regard for the Tribunal to take into account the claimant’s evidence as to the effect of his impairment now.[95]The claimant has now been referred for a hip replacement operation. The Tribunal was satisfied that the claimant cannot walk for longer than 20 minutes, cannot stand for longer than 10 minutes as a result of his condition, and that he cannot walk at all on uneven ground. Standing, and walking are day-to-day activities, and the Tribunal was satisfied that claimant’s limitation in undertaking these activities meet the test of substantial adverse effect (in that they are more than trivial or minor), on his ability to carry out day-to-day activities. The evidence therefore demonstrated that the effect of the claimant’s condition has become a substantial adverse effect.[96]Lastly, the claimant the Tribunal was satisfied that the claimant shown that the effects of his impairment were with long-term. The claimant was diagnosed in July 2017, when he was suffering an adverse effect, and continues to suffer a substantial adverse effect as a result of his impairment and therefore the effects of his impairment meet the definition of long term.[97]The Tribunal was therefore satisfied the claimant was a disabled in terms of Section 6 of the Equality act. Time Bar[98]Section 123(1) of the EQA provides; (1) … Proceedings on that complaint under section 20 may not be brought after the end of (a) the period of three 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 the period shall be treated as done at the end of that period (b) failure to do something is to be treated as a occurring when the person in question decided on it.(4) In the absence of evidence to the contrary the person (P) is to be taken to decide on a failure to do something- (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.[99]The Tribunal has the broad discretion to extend time to consider a complaint of discrimination on the grounds that it is just and equitable to do so. The Tribunal reminded itself that the exercise of that discretion is the exception, not the rule, and that the burden of proof rests with the claimant to satisfy the Tribunal should exercise its discretion to allow his claim to proceed.[100]As indicated above, the claimant identifies complaints of disability discrimination over a number of documents.[101]The starting point for considering the issue of time bar is to identify the date upon which the alleged act of discrimination occurred, or in this instance are said to have occurred. The Tribunal was assisted in this regard by the schedule produced by the claimant further to a direction issued by employment Judge Eccles.[102]The schedule sets out a number of alleged acts commencing on 31 July 2017. One further act is alleged in November 2017, and the remainder of the acts (bar two) are alleged to have taken place in 2018 with last act said to have taken place on 24 October 2018 .[103]The other than two acts are alleged are is said to have taken place on 7 February 2020, and 28 January 2020. Both these alleged acts postdate the claimant lodging of his complaint to the Employment Tribunal in December 2019, and therefore neither of these acts are relevant for the purposes extending the time limit under section 123 (3) for the purposes of section 123 (1).[104]On the basis of the information provided, the last relevant alleged act of discrimination is said to have taken place on 24 October 2018. The claim was presented on 16 December 2019, and therefore the claim as a whole is out of time.[105]In considering whether time should be extended under section 123 (2) the tribunal has regard to the prejudice each party would suffer a decision if the tribunal allows the claim or refuses it, and had regard to the circumstances of this case, including the length of the delay and the reasons for it; the extent to which the cogency of the evidence is likely to be affected by the delay, the promptness with which the claimant acted once the he became aware of facts giving rise to the claim, and the steps taken by the claimant to obtain appropriate advice once he knew of the possibility of taking action.[106]The Tribunal began by considering the length of the delay, which is significant. The claim was lodged with the tribunal on 16 December 2019, and adding the extension to the time limit provided by the ACAS certificate, any alleged act which took place before 5 July 2019 is lodged out of time. The last act of discrimination is alleged to have taken place on 24 October 2018, and therefore the claim is some 8 months out of time.[107]The Tribunal considered the reason for the delay. The claimant’s primary position appears to be that he explains the delay on the basis there was a continuing act discrimination, which arises from the information he recovered from his SAR, and therefore his claim is in time. For the reasons given above the Tribunal concluded there is no continuing act of discrimination upon which the claimant can rely in connection with this SAR request. Both of the alleged acts of discrimination which are said to arise out of the SAR request post-date the presentation of the ET1[108]The claimant also submits that the reason he had not lodged a claim was that he had been told the welfare meeting would be continued; further he felt under very considerable stress in 2018 because of his relationship with his line manager, and the respondent’s failure to deal with his complaints and to deal with matters at the Welfare Meeting. The Tribunal attached a degree of weight to these factors, however it did it did not consider that they were of themselves sufficient to justify an extension of the time limit.[109]The Tribunal then considered the promptness with which the claimant acted once he was aware of the facts which give rise to the claim.[110]Mr Newman correctly points out that the claimant would have been aware in 2017 that the respondents, in his view, were not entering into a dialogue with them about his disability. He would also been aware in 2017/18, that the respondent had not implemented what he considered to be a reasonable adjustment.[111]Mr Newman submits that the claimant’s evidence in relation to the SAR and the knowledge that it provided to him was not at all compelling. He submitted that the claimant received some emails in August 2019 which showed that the respondent sought clarity from its OH provider, but that that does not give rise to any knowledge of discrimination or discrimination at all. He submitted that the documents the claimant referred to as evidence add nothing to the complaints of discrimination by the claimant.[112]The claimant accepted he was aware that the respondents had not implemented what he considered was a reasonable adjustment in 2018, but he considered when he received a copy of Mrs Santos’s email that she had deliberately provided OH with incorrect information with a view to avoiding implementing an adjustment. The first time he became aware of this was in August 2019.[113]Leaving aside the merits of such a position, it could not be said that there was no link between the content of this email and the claimant’s belief that the respondents had acted in a discriminatory manner in falling to implement reasonable adjustments.[114]Again, leaving aside the merits of the claimant’s position, the notes of the welfare meeting which took place on 24 October 2018, which the claimant received in his SAR did not accord with his recollection of what had taken place. The claimant believed the company intended to continue a discussion with him, and the notes inaccurately recorded that the matter had been resolved. This information again cannot be said to be unconnected to the claimant’s complaint that the respondents discriminated against by failing to enter into a dialogue with him.[115]Albeit the claimant’s accepted that he was aware that the respondents did not enter into a dialogue with him in 2017, and did not make adjustments which he considered reasonable in 2018, the fact that the claimant became aware of information connected to his complaints of discrimination in August 2019, and which he considered disclosed that there had been discrimination on the part of the respondents, was a matter to which the Tribunal attached some weight.[116]There was no evidence that the claimant had obtained legal advice about his position, however the Tribunal was satisfied that the claimant was aware of the existence of Employment Tribunals and their function, including that they were able to deal with complaints of discrimination, and that he had a previous experience of dealing with the Employment Tribunal.[117]The Tribunal considered the degree to which the cogency of the evidence was likely to be effected by the delay. The delay in presentation of the claim is in the order of 8 months. Such a delay may impact on the cogency of the evidence to some degree, however the effect of the delay could be offset by the contemporaneous records kept, and which the Tribunal were taken to, such as the emails to OH and the minutes of the Welfare meeting.[118]Lastly, the Tribunal considered the prejudice which each party would suffer if the Tribunal granted or refused the application. If the application is refused, the claimant will be denied the right to pursue a complaint of disability discrimination. The Tribunal took into account that the claimant already has before the Tribunal a complaint of constructive unfair dismissal, however being prevented from pursuing a discrimination claim, which if successful entitles the claimant to compensation which is not capped unlike his unfair dismissal claim, does represents significant prejudice to the claimant.[119]If the claim is allowed, the respondents will have to face a complaint of discrimination which has been lodged out of time. It however remains open to them to defend those proceedings.[120]Mr Newman submits that the claimant is unreasonably seeking to complicate what is essentially a case which is at its heart about matters unrelated to discrimination (i.e. the relationship between the claimant, Brian Shaw, a driver, and his manager, Ms Deans). The merits of the claimant’s discrimination claim have however not been tested at this PH and the Tribunal was unable to conclude that there was an unreasonable attempt on the part of the claimant to complicate his case by introducing a disability discrimination claim.[121]The respondents are already facing a constructive unfair dismissal claim, which will proceed to a hearing, and it was not suggested that the inclusion of the disability discrimination claim would add significantly to the witnesses who will have be called to that hearing, and this is a factor which will mitigate the prejudice the respondents are likely to suffer if the claim is allowed,[122]Taking all the relevant matters into account and balancing all of these factors, the ribunal was satisfied that it should exercise its discretion to allow the claimant’s disability discrimination claim to proceed on the grounds that it was just and equitable to do so.
CONCLUSION
[123]On 4 April 2019, the claimant started his shift at Grangemouth at 3.30 a.m. As he was driving out of the loading bay, A looked directly at him and blew kisses at him. The claimant felt intimated by this. After completing his delivery that day at NuStar he telephoned Jemma Deans and told her about this incident. He explained to her that he was now too stressed to take a loaded fuel truck onto public roads. He did not wish to put himself or the public in danger and he wanted the company to act. He then reported sick that same day and began an extended period of sickness absence. Grievance Meeting on 1 May 2019 with Jon Price[124]On 1 May 2019, the claimant met with Jon Price and Rachel Maclaren with a view to discussing the grievances raised in his e-mails of 2 and 3 April. However, having established with the claimant that he and Miss Maclaren were personally involved in previous matters about which he was aggrieved, Mr Price informed him that he would pass his grievance to an independent manager within the respondent to deal with it. In due course it was determined that this manager would be Allan Hunter. Grievance meeting on 16 May with Allan Hunter[125]On 8 May 2019, Allan Hunter wrote to the claimant inviting him to a grievance hearing on 16 May at its Larkhall depot.[126]In advance of that meeting, the claimant emailed Mr Hunter on 15 May 2019 setting out the main points of his grievance, which were as follows: “(1) Failure to investigate my grievance in July 2018, I feel this one is exhausted. I am taking legal advice – ACAS or going to tribunal.(2) Lack of duty of care to prevent future harassment and bullying in the workplace and to investigate the threats made to me.(3) A breach of conflict of interests and a breach of confidentiality.(4) A cessation from HR who stopped replying to my emails showing my complaints. Who dealt with these complaints and how were the outcomes relayed to me as per Rachel Maclaren. Was it HR or Jemma Deans who dealt with them?(5) A lack of handwritten notes from Rachel Maclaren and Luciana Santos, which I was advised I had signed off, none of these had ever been produced to me and I have never signed off on any of these. I have asked for copies of these handwritten notes and as yet none have been sent to me.(6) I asked for a further update witness statement of Jemma Deans from the appeal hearing – Jon Price/Rachel Maclaren – no further statement was produced. I did not receive any notes from the last meeting either. I require to know why Jemma Deans gave A a row for threatening violence against me. I want to know why this was omitted from her statement, as I didn’t get a row from her. I also informed you the last time about a huge how that took place in Gleaner's Connell depot and how this was covered up by Jemma Deans. Why was this not reported to HR being in a customer's depot? I made a complaint verbally to Jemma Deans around the beginning of September when I drove into NuStar and A motioned he was going to cut my throat in the terminal. The following morning I got the middle finger gesture from him as he passed in the truck. Jemma Deans told me she informed HR about this incident. I need to know that she did. She told me she phoned NuStar and there was no coverage in the area. I need to know what HR meant by all the other incidents relayed to me. I have asked for all paperwork and I don’t appear to have conclusions to any incidents, bar the initial one, and I find it extremely exhausting. In light of the allegations that are circling at the moment regarding Jemma Deans and A, in a relationship, as I stated previously in my disciplinary hearing, I require my pay reinstated with back pay. This situation has arisen through no fault of my own and due to the nature of misconduct in the workplace and breach of confidentiality, i.e. HR showing Jemma Deans the video when I specifically asked at the meeting to keep it confidential, as a result I am without pay until the conclusion of this grievance. I feel Lewis/Turners have failed me with me with a lack of resolution in this situation and I have lost trust and confidence in my employer. My morale is so low, my family life is suffering both emotionally and financially as I reduced my hours because of the harassment. During this period of turmoil, I have received one to two emails from Jemma Deans daily when I am off sick with stress, and I really don’t appreciate it. If the first grievance goes ahead to ACAS or tribunal, I will cite 4 Lewis Drivers, 1 ex driver,1 ex manager and a chap who used to work with DHL who I am looking at contact details at the moment (who was threatened by A with a recording that him and his boys were going to come and burn his house down with him and his family in it), and they sacked the chap for using an electrical recording device in Ineos.”[127]The grievance hearing took place as planned on 16 May 2019. The claimant was accompanied by Graham Turnbull from Unite the Union. Mr Hunter was accompanied by Helen King, HR officer.[128]During this meeting, the claimant informed Mr Hunter of all of the incidents when A had threatened him and made plain the impact of those threats on his health and wellbeing. He explained that he had raised his grievance in July 2018 but still nothing had been done. He had had to reduce his working days and start work earlier each day so as to avoid situations when he would come into contact with A because the respondent had done nothing to prevent that happening or to address A's behaviour. There had been no investigation of the 16 July 2018 incident or of any other subsequent incidents he had reported, and HR had stopped replying to his e-mails. Their manager Jemma Deans was compromised by her relationship with A. He had received a written warning for calling A a bitch but when A had threatened to murder him, nothing had happened. As far as he could tell, everyone thought A 'walks on water'. The claimant also informed Mr Hunter of the financial impact of A's behaviour because he had recently taken time off with stress and not been paid for the past six weeks.[129]On 18 June 2019, Allan Hunter wrote to the claimant setting out his responses to each of the claimant's grievances set out in his 15 May 2019 e-mail. He upheld the claimant's grievance in relation to the respondent's failure to communicate its decision in relation to the 16 July 2018 incident, the two September 2018 incidents, and the December 2018 incident but he did not accept that the respondent had failed to investigate those incidents.[130]He explained that he had been unable to support the claimant’s grievance in relation to the alleged incidents on 19 September and 6 December because it could not be determined who was at fault, given the nature of the complaints and the lack of any corroborating evidence.[131]Otherwise, the claimant's grievances were rejected, including the claimant's complaint that Jemma Deans had not been re-interviewed by management in relation to the 12 January 2018 incident. In Mr Hunter's opinion any alleged relationship between Jemma Deans and A was not relevant in circumstances where the claimant was not appealing the disciplinary sanction he had received.[132]So far as the claimant’s concerns about his safety in the workplace were concerned, Mr Hunter’s responses were as follows: “Point 2 Lack of duty of care to prevent future harassment and bullying in the workplace and to investigate the threats made to me” Having reviewed the information and after speaking with Jemma, I understand that the company have taken steps to minimise the contact you and A have whilst at work. In the hearing, you explained to me that both you and A undertake the same type of work and with the same customers. I have been informed that you have been given different start times and are currently allocated different work each day to minimise the likelihood of your paths crossing. This unfortunately can fail as you collect fuel from the same terminal and it is at these times that you have come into contact with each other. I have considered that the company has done enough to minimise the contact you have and it is my opinion that we have taken significant steps to reduce the likelihood of you meeting. I asked you at the hearing how you saw the issues between the two of you being resolved, and you stated that you just wanted it sorted and did not give any suggestions as to how this could happen. My recommendation is that the two of you should cross paths then you should ignore each other. I will ensure that the same message is relayed to A. … Point 12 ''Turners have failed me with the lack of resolution in this situation'' I am sorry that you feel Turners have failed to resolve the issues between yourself and A. As with point 2 above, the Company have taken steps to minimise the contact you and A have whilst at work. I have been informed that you have been given different start times and allocated different work daily but you both collect fuel from the same terminal and therefore your paths may cross. Whilst you both continue to be employed on the same contract, I can see nothing more the company can do to limit the contact you have with each other and I note that you have not put forward any other suggestions for consideration also. You have both been previously advised to keep out of each other’s way. However, from the incidents that have continued to arise between the two of you, following the incident in July 2018, it is clear that this advice is not being followed. I once again remind you to ignore A should you come into contact with him. The same message will be relayed to A.” The claimant's grievance appeal[133]The claimant was dissatisfied with Mr Hunter’s decision and wrote to him on 20 June 2019 appealing against the outcome on the basis of his ''conclusions not being satisfactory or truthful”.[134]In due course the claimant’s grievance appeal took place before Shaun Leonard on 4 July 2019 at the Marriot Hotel, Edinburgh. During the appeal hearing, the claimant and his representative Mr Turnbull repeated their concerns about the respondent’s failure to respond adequately to the threats that A had repeatedly made to him and to provide a safe working environment for him. The claimant also handed over a further formal grievance against Jemma Deans for failing to report the death threat that he had told her A had made to him on 6 September 2018.[135]Following the grievance appeal hearing Mr Leonard wrote to the claimant on 2 August 2019 with his decision. In common with Mr Hunter, Mr Leonard upheld the claimant's grievances insofar as they related to a failure to communicate to him the outcomes of the respondent's investigations, but he also found there had been no failure to investigate. In relation to those parts of the grievance concerning the respondent’s alleged failure to provide the claimant with a safe working environment, his response was as follows: - “Point 2 ''Lack of duty of care to prevent future harassment and bullying in the workplace and to investigate the threats made against me” As part of my investigation I spoke to Jemma Deans (Operations Manager) regarding the change to your start time. She confirmed that the change to an earlier start time was instigated by you (and not the company). I understand that this was not a formal change due to there being a flexible starting window of between 3:30 – 5:00am. I therefore agree that Mr Hunter was mistaken on this point. The substantive issue is that steps are in place to reduce the opportunities for conflict between you and A. The change in start times does reduce the likelihood of you and A crossing paths. I do not consider that there are any further reasonable steps the Company can take to minimise the contact you have with each other beyond recommending that you both ignore each other when your paths do cross. I would welcome any suggestions from you in this regard as you were unable to propose any alternative solution when I asked you at the hearing. … Point 12 ''Turners have failed me with a lack of resolution in this situation'' I am also sorry that you do not feel that the Company have resolved the matter between yourself and A. In addition, you have mentioned that there are two other videos which have not been seen by HR despite numerous requests for them. You told me that you would not resend them but as part of my investigation I can confirm that they have not been received by HR in the first instance. Therefore, I cannot comment on the content of these videos. Furthermore, I asked you what you thought the appropriate resolution to this situation would be. You told me you wanted me to “sack him” (A). I explained to you that this may not be an appropriate course of action. As I have summarised above, A will be spoken to however the outcome will not be communicated to you as the company has a confidentiality obligation…[136]By the time the claimant made his complaints about A from July 2018 onwards, it was well known at Grangemouth that A was a difficult and confrontational individual whose conduct had caused serious concerns for his colleagues and managers alike.[137]In the circumstances it was a concerning feature of the respondent's response to the claimant's complaints from July 2018 onwards that it failed to approach for comment any of the respondent's other employees based at Grangemouth who may not have been eyewitnesses to the incidents the claimant had reported but may well have been in a position to provide relevant information.[138]Garry Blades was a manager who also covered for drivers on occasion. On one particular driving shift, as he was driving his vehicle out of a customer's yard early in the morning in the dark, A stood in the yard in front of his vehicle, blocking his exit and videoing him. He was not wearing any PPE. Mr Blades found A's behaviour to be contrary to health and safety rules and deliberately provocative and he reported it to his own line manager, although his understanding was that no action was taken against A.[139]Garry Blades also spoke of A 'singling out people, wanting to cause them problems', that ''he went from driver to driver, trying to get them into trouble and getting them to react'' and that he was 'disruptive' to other drivers, many of whom had gone out of their way to avoid him.[140]In addition to Garry Blades, another manager Raymond Grey was reported to have found A 'impossible to manage'.[141]The witness Henry Cowan spoke of A having acted in the workplace as if he could say and do anything to anyone without consequence and that he had also faced conflict from him.[142]James Differ spoke of having been subjected to threats and abuse from A when they were returning home for a stint working together in Bristol in 2013 or 2014. Although Mr Differ reported to his manager that A had been ''shouting, bawling and threatening to kill'' him, the respondent took no action to investigate the incident or address A's reported behaviour. Mr Differ also had to step in to prevent a fight between A and another driver at a union meeting after A had been shouting and making threats at that driver. In Mr Differ's words, A was 'Teflon'.[143]In those circumstances, Mr Holdway, Mr Hunter and Mr Leonard should have spoken to other Grangemouth based employees. They should have been aware that some of those colleagues would have been able to speak at the very least to the credibility of the claimant's complaints and to the likelihood of their being well founded. There was no evidence that the respondent had even spoken to A in relation to any of the alleged incidents reported by the claimant in July, August, September, and December 2018. The respondent failed at every stage to speak to potentially relevant witnesses.[144]The respondent also failed to properly investigate Jemma Deans' role in relation to her account of the January 2018 incident or the extent to which her rumoured relationship with A had influenced that. Her relationship with A was likely to have been a material factor. However, that was never explored even though Miss Maclaren accepted that a workplace relationship in which one partner was more senior than the other – precisely what was alleged and allegedly well known - would be a matter of concern to the respondent.[145]The respondent let the claimant down badly in its response to his complaints about A. Its investigations were inadequate, and it did not provide him with details of the investigations that it did conduct. Mr Holdway did not respond to him with outcomes in relation to the July to December 2018 incidents even though he should have known, in light of the frequency of his complaints and the language he had used to describe the impact that A's behaviour was having on him, that this would have at least given him some comfort that his concerns were being taken seriously. When the claimant subsequently raised a formal grievance about his managers' failures to protect him, the managers who dealt with that simply went through the motions.[146]HR's involvement in the investigation was also wholly inadequate. Rachel Maclaren had been made aware of alleged death threats by an employee who was apparently notorious for his confrontational behaviour towards other employees. Even though the claimant had made it clear that he was at the end of his tether because of this she failed completely to get a grip on his concerns. Apart from her involvement in a number of meetings, she managed this clearly difficult situation by simply forwarding emails to her operational colleagues and hoping they would resolve them locally. As a result, Miss Maclaren was unaware as to whether or not any steps had actually been taken locally to avoid the claimant and A coming into contact with one another.[147]The Tribunal formed the view that A believed that he was untouchable and that the respondent treated him as though that were indeed the case. To a certain extent that appears to have been because of his relationship with Miss Deans. However, that does not fully explain why no action was taken against him in relation to other incidents such as that involving Garry Blades. Whatever the reason for his being untouchable, the impact on the claimant of A's behaviour towards him and of the respondent's abject failure to deal with his many complaints about him was profound. In the light of A's known behaviour towards other employees and managers, the respondent's failure to do anything to protect the claimant from him was egregious.[148]As a result, the claimant was simply left to make his own arrangements to avoid A by reducing his working days and changing his start time, all of which were to his personal detriment. Yet the steps the claimant had taken it upon himself to put in place had plainly proven inadequate as he was still on the receiving end of A's confrontational behaviour and threats. Despite knowing that to be the case, the respondent still failed to take adequate steps to properly investigate and deal with the claimant's concerns, despite what it already knew of A's conduct and behaviour towards others. The claimant's resignation[149]Having taken time to consider his position in response to the outcome of the grievance procedure, the claimant wrote to the respondent on 27 September 2019 in the following terms: - “Dear Sirs I terminate my employment with Lewis Tankers t/a Turners forthwith citing Constructive Dismissal My Constructive Dismissal is based on: 1. the company’s failure to protect me in the workplace from continued bullying, harassment and death threats; 2. disability discrimination. 3. a manager and a driver in a relationship which caused a conflict of interest and a breach of confidentiality. 4. absolute failure by Jon Price to investigate this relationship, as he was made aware of this in February 2018 by me. 5. grievance against my immediate manager Jemma Deans, dated July 2019 still outstanding. 6. failing to conclude my grievance against A dated July 2018 7. the company’s failure to put anything in place for me to return to work which has had a detrimental effect on my health and future health and my mental wellbeing, which would require me to return to my workplace into a situation which remains the same. 8. HR’s failure to communicate back to me in response to my stated concerns about incidents that had taken place.”[150]Further to that letter, the respondent’s Barry Lewis wrote to the claimant on 30 September inviting him to a hearing in respect of his grievance against Jemma Deans. The claimant responded on 3 October explaining that he had no intention of attending the grievance hearing as neither he nor Jemma Deans were still employed by the respondent.[151]Although the claimant refers to disability discrimination in his resignation letter the Tribunal finds that the true reason for the claimant's resignation was the respondent's failure to deal with his complaints about A's conduct towards him and to provide a safe working environment for him to return to from his period of sickness absence that had started on April 2019 Financial loss[152]Following his resignation, the claimant set himself up as self-employed in an executive travel business, which he named Coltswood Chauffeur Service for clients travelling for airport transfers as well as business travel and occasions such as weddings funerals and family parties. Unfortunately, the Covid pandemic meant that his chauffer business for private customers did not prosper.[153]He therefore sent application letters in February 2020 to companies such as Certas Energy Grangemouth, Sucklings Transport, XPO Logistics, Hoyer UK and DHL Grangemouth, although he did not receive any response to those applications.[154]In order to mitigate his financial losses, the claimant therefore also registered with three commercial agencies involved in the recruitment of heavy goods drivers namely Nexus, Ten Live and Men at Work.[155]The claimant's personal experience was that work for drivers was not as plentiful as the press had led the public to believe. Although he derived earnings of £7,297.50 from Nexus, that work dried up when Nexus began to rely on drivers from England.[156]Furthermore, his disability meant that he was unable to take referrals from Ten Live and Men at Work whose work involved a certain amount of standing during the loading and unloading of deliveries. Indeed, he found himself disadvantaged in the job market within the driving industry because of his disability, which meant he was unable to load and unload vehicles.[157]In addition to losing income following the termination of his employment, the claimant also had to cash in part of his pension pot with Turners and part of his pension pot with ESSO, the total amount taken from his pension as being £46,500.[158]The claimant had to stop driving work altogether in December 2020 due to the impact of his osteoarthritis. He did not make any attempt to find driving work after that time, due to the walking distances involved in the work he had carried out with the driver agencies, which he felt unable to put himself through as his hip condition deteriorated. Submissions Claimant's submission Claimant’s witnesses[159]In Mr Byrom's submission the claimant and his witnesses had been consistent and credible in their evidence, in contrast to the respondent's witnesses whose evidence was, he believed, characterised by their having repeatedly been unable to recall the events in question.[160]He submitted that the respondent had provided the claimant with an unsafe working environment in that he was exposed to bullying, harassment, and death threats, specifically involving A and Jemma Deans on 16 July, 28 August, 5 September, 19 September and 6 December 2018. There was a body of evidence that confirmed A had harassed colleagues and was a troublemaker. Both Simon Holdway and Allan Hunter had accepted that A's comments to the claimant had been threatening.[161]The evidence showed the respondent had failed to deal with the claimant's July 2018 grievance or his July 2019 grievance against Ms Deans. It had also failed to properly investigate and provide full outcomes for the 2019 grievance and appeal, and it had failed to take a statement from Jemma Deans, despite the claimant's concerns for her independence.[162]It had also failed to facilitate the Claimant’s return to work following his absence, as evidenced by no steps having been taken to prevent harassment by A despite the concerns raised to Mr Hunter and Mr Leonard. In Mr Byrom's submission, the respondent had also discriminated against the Claimant contrary to section 13, section 15 or section 20/21 of the Equality Act 2010.[163]By virtue of these breaches the Respondent had breached the implied duty of mutual trust and confidence in the Claimant’s contract of employment by behaving in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent without reasonable and proper cause for doing so. Mr Byrom referred to the following authorities - London Borough of Waltham Forest v Folu Omilaju [2004] EWCA Civ 1493 [para 14, pts 1 to 4] Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666 [p670–671] Mr D Blackburn v Aldi Stores Ltd UKEAT/0185/12/JOJ [para 25][164]Such breaches as had been proven were sufficiently important to justify the Claimant resigning and he had in fact resigned in response to them, as evidenced by his letter of resignation dated 27 September 2019. He had at no time waived or affirmed any breach or breaches of his contract. In this regard Mr Byrom relied on the following authorities - London Borough of Waltham Forest v Folu Omilaju [2004] EWCA Civ 1493 [paras 15 and 16] Gordon v J & D Pierce (Contracts) Limited [2021] IRLR 266 [para 22][165]The Claimant sought compensation only and referred the Tribunal to the schedule of loss lodged on his behalf. Mr Byrom submitted that the claimant had taken reasonable steps to replace his lost earnings, for example by looking for another job, as evidenced by the applications he had made and by starting up his own small business.[166]There was no chance that the Claimant would have been fairly dismissed in any event if a fair procedure had been followed, or for some other reason.[167]Mr Byrom submitted that the Acas Code of Practice on Disciplinary and Grievance Procedures applied and that the respondent had unreasonably failed to comply with it, as evidenced by its failure to investigate and provide a response to the claimant's July 2018 grievance and its failure generally to properly investigate the claimant's grievances. It was just and equitable to increase any award payable to the Claimant by up to 25%.[168]Finally, there were no grounds to reduce any element of his award for unfair dismissal if one was made.[169]Direct Disability Discrimination (Equality Act 2010 section 13) a. The respondent had discriminated against the claimant because of his disability. He had been kept on the INEOS contract despite it causing him pain, in circumstances where non-disabled comparators were taken off duties that were challenging to them because of their health without their having to go through welfare meetings and an OH referral. Mr Byrom referred to the following authorities - Talbot v Costain Oil, Gas and Process Ltd and ors 2017 ICR D11, EAT [para 15] O'Neill v. Governors of St. Thomas More Roman Catholic Voluntarily Aided Upper School and Another - [1997] ICR 33 [pg 47, B & C][170]Discrimination Arising from Disability (Equality Act 2010 section 15) b. The Respondent had treated the Claimant unfavourably by retaining the respondent of his condition in August 2017. That was evidenced by the routing sheets in May 2018 and by Jemma Deans' evidence that “as far as I’m concerned drivers have to work all contracts”. c. The Claimant was retained on the lneos contract despite the pain working on that contract causing him harm. This treatment was not a proportionate means of achieving a legitimate aim. He could and should have been moved to another contract, such as Greenergy. Other drivers not working INEOS could have been trained in order to replace the claimant’s allocation. d. The Respondent knew or ought reasonably to have been expected to know that the Claimant had a disability by no later than 13 November 2017 having regard to the Robin Smith e-mail dated 13 November 2017 and the 31 July 2017 radiology report. In this regard Mr Byrom referred to the following authorities - Pnaiser v NHS England and another UKEAT/0137/15/LA [para 31] Donelien v Liberata UK Ltd [2018] EWCA Civ 129 [para 32][171]Reasonable Adjustments (Equality Act 2010 sections 20 & 21) e. The respondent had the following PCPs: i. the requirement for a driver to stand/be on his feet for significant periods of time during a shift whilst working on the INEOS contract; and ii. the requirement for the Claimant to work on the INEOS contract, which regularly required him to stand/be on his feet whilst working for significant periods of time during a shift. f. It applied those PCPs to the Claimant, and they put him at a substantial disadvantage compared to someone with the Claimant’s disability by causing pain to his hip. The evidence was clear that the Respondent knew or could reasonably have expected to know that the Claimant was likely to be placed at a disadvantage. g. By way of adjustment the respondent could have taken the following reasonable steps i. provided the claimant with a chair. ii. transferred the Claimant onto another contract which did not have the requirement to regularly stand/be on his feet whilst working for significant periods of time during a shift. h. It was reasonable to have taken those steps on or around 4 July 2018, but the Respondent had failed to do so. Mr Byrom referred to the following authority - Griffiths v Secretary of State for Work and Pensions [2017] I.C.R. 160 [para 58][172]The Claimant was entitled to compensation for general financial loss and/or pension loss arising as a consequence of the prohibited acts, in terms of the schedule of loss produced. He was also entitled to an award for injury to feelings in the amount of £15,000, considering his own evidence and that of his wife as to the impact of the situation on him. Respondent’s submission[173]On behalf of the respondent, Mr Newman submitted that this claim was properly considered as two distinct issues, namely: i. the issues involving the Claimant and A; and, separately j. the issues relating to the Claimant’s arthritis condition.[174]Despite the Claimant’s assertion that his resignation was linked to the Respondent’s handling of his arthritis condition, the Respondent invited the Tribunal to conclude that was not the case. The resignation letter had made one reference to “disability discrimination” without any further details.[175]When taking into account the sequence of events prior to the resignation, the recent grievance and appeal, the reason for his continued absence since 4 April 2019, the fact that he was never forced to work the INEOS Contract since August 2017 and never did any INEOS work from May 2018, together with the fact that the latest Welfare Meeting was held in October 2018 and he continued to work until April 2019, without any substantive reference to his arthritis at all, Mr Newman submitted that the Tribunal could not credibly find that the Claimant’s resignation was tainted by discrimination. The Tribunal was reminded that the Claimant’s grievance and grievance appeal made no substantive reference whatsoever to his arthritis. It was clear that he resigned because of the issues relating to A. The Claimant/A[176]It is clear the Claimant and A did not get on. The Respondent's position was that the Claimant had a closed mind with regard to A and took personal offence at remarks he made, even when not directed towards him personally.[177]The Tribunal heard evidence in respect of the relationship between the Claimant and A, and also about A's interactions with other employees. Mr Newman submitted that certain evidence before this Tribunal was not in front of the Respondent at the relevant time that it was handling these issues and should not be considered in assessing the reasonableness of its actions.[178]The Respondent reminded the Tribunal that even on the Claimant’s own case, he was not an innocent party. He admits, for example, calling A “a fucking bitch”. The Respondent submits that the Claimant effectively goaded A into behaving inappropriately and invites the Tribunal to conclude that there was no genuine belief in the Claimant’s mind that he was actually having his life threatened by him – if he was, the Claimant would not have placed himself in further situations involving A, but he had.[179]The Police, having viewed video evidence of interactions between A and the Claimant, took no action. If there was a genuine death threat it was a reasonable assumption that the Police would have done so. In crossexamination Mrs Maclaren was asked whether the Police’s involvement provided an indication as to the seriousness of the situation. Her response, that based on her experience she would expect the Police to follow up if there was a genuine issue, was reasonable.[180]The Claimant alleges that the Respondent did nothing in respect of A. That is not true. The Tribunal were reminded that A was spoken to by the Respondent on a number of occasions and whilst the Claimant may have expected / wanted a different approach to be taken, it is incorrect to assert that the Respondent took no action. On most occasions there was simply insufficient evidence to enable a conclusion to be drawn either way as to what had actually happened.[181]The Claimant attempted to paint a picture of A making his life hell for a number of years. However, when considering the evidence, it did not support the Claimant’s contention. The Tribunal were reminded of the number of interactions complained of (five) over more than 1.5 years. Relationship between A and Ms Deans[182]The Claimant asserts that the relationship between Ms Deans and A influenced her dealings with A and he also asserts that A was allowed to get away with inappropriate behaviour which the Claimant also appears to attribute to his relationship with Ms Deans.[183]The Tribunal were reminded that any issues involving A were reported to have occurred prior to Ms Deans’ employment with the Respondent and accordingly it was submitted that any relationship between them could not have influenced the Respondent prior to her employment.[184]Further, the Tribunal were reminded that Ms Deans’ evidence was that her relationship with A did not commence until Christmas 2018. That could not credibly be challenged by the Claimant and there would in any event be no reason why Ms Deans would state an incorrect date. Accordingly, the events of 2018 involving the Claimant, A and Ms Deans could not have been influenced by their relationship. Ms Deans was a credible witness and her evidence that her personal and professional life were not impacted upon by her relationship should be accepted.[185]Mr Price did not believe that Ms Deans had acted unprofessionally. The Tribunal were reminded that Ms Deans rebuked A and she reported issues to the Respondent. Whilst she now accepts with the benefit of hindsight that it may have been sensible to have reported their relationship that does not mean there was evidence upon which the Tribunal could conclude that Ms Deans favoured A or acted inappropriately, noting that Mr Holdway formally dealt with A.[186]Further, whilst the Claimant asserts that Mr Price should have investigated the relationship between A and Ms Deans, at the time that it was alluded to by the Claimant, Mr Price did not consider the rumour to be true and it was not a central issue raised by the Claimant. Rather it was an off the cuff comment made at the end of their meeting.[187]The Tribunal had the benefit of hearing from a number of witnesses who had addressed it on issues relating to A which the Respondent did not have the benefit of at the relevant time. The picture painted of A before this Tribunal was different to that which the Respondent was aware of at the time. The claimant’s arthritis/INEOS[188]The Tribunal has heard evidence in relation to the INEOS Grangemouth refinery. It was important to recall the distinction between working on the INEOS Contract and working shifts which involved unloading at INEOS.[189]The Claimant’s issue has always been stated as working on the INEOS Contract, namely doing four ‘runs’ between Inter Terminals and INEOS per shift, as compared to other shift patterns which involved unloading at INEOS amongst other locations (which the Claimant had no issues with).[190]The Tribunal had the benefit of photographic evidence showing the location of the unloading point. The Respondent’s evidence supported by Mr McCrae and other witnesses was that the Claimant could move around with relative ease. The Claimant’s position with regard to not being able to move was simply not credible. It was clear from the evidence that he could move freely.[191]The evidence of all relevant witnesses other than the Claimant was that they could mobilise away from the point of control so long as they could get back to it. The Claimant had adduced no evidence to suggest that he was not fit enough to be able to get to a point of control or that his speed / reaction times were a health and safety issue.[192]Mr McCrae confirmed that an acceptable distance that a Driver could move away from the point of control was 4 to 5 metres. He was clear there was no need to “be stuck in the shelter”. Drivers could walk around the point of shelter, down the steps and behind the vehicle if they wished, and they could within the bunded area.[193]There was a dispute between witnesses as to whether Mr McCrae was involved in discussions with regard to a request for a seat. Both the Claimant and the Respondent’s witnesses contend that there were such discussions, whereas Mr McCrae disputes that. The Tribunal were invited to conclude that seat discussions took place, and that Mr McCrae simply cannot recall those discussions in detail.[194]The Tribunal were reminded that the Claimant informed his doctors on 29 July 2019 that he works in dog kennels and was always walking. The Tribunal are reminded of the evidence on this issue from Mrs Bannan, who said that the Claimant would help her by walking two to three dogs for around 10 minutes each. Whilst it is was accepted that cumulatively that did not result in the same length of time as walking during the INEOS Contract, this demonstrated that the Claimant chose to walk and was able to do so.[195]The dialogue between him and his doctors on this document supported the contention that the Claimant’s absence from work related to A and not his arthritis (for example the entries dated 4 April 2019 and 2 July 2019). Occupational Health[196]It was important to remind the Tribunal of the evidence of Mr Dougan. He maintained that in accordance with his report it was his view that his assessment was that the Claimant was able to walk without stopping for up to 60 minutes.[197]It was reasonable for the Respondent to make further enquiries with Occupational Health in light of the fact that it was a requirement of INEOS that the Claimant remain standing (as reported at the time) for the duration of the unloading. Ms Santos explained, reasonably, that the Claimant could not sit down (due to INEOS’s position on that not the Respondent’s) and sought clarification.[198]The Claimant had asserted that the Respondent contrived to prevent him from working. That was not the case. The updated advice was that it was reasonable to expect the Claimant to be able to undertake his full range of duties. Claimant’s change to shifts to avoid A / continuing issues[199]Whilst the Claimant appears to assert that the Respondent simply allowed A to continue to bully / harass him, that is incorrect. The Claimant was requested to avoid A as much as possible.[200]The Tribunal heard evidence that the Claimant himself changed shift start times to avoid A, following the Respondent’s guidance. Whilst it would no doubt be submitted on behalf of the Claimant that the Respondent simply took no action, noting that he had already changed his start times, this was of course no longer an option available to the Respondent.[201]It was reasonable to query with the Claimant himself whether there were any other changes that could assist in keeping A and the Claimant apart. That was not the same as suggesting that the Respondent placed the onus on him, rather it involved him in that dialogue as any reasonable employer would. The fact that the Claimant could not think of anything else, and did not suggest a change of contract, supports the Respondent’s position that there was little else that could practically be done beyond maintaining differing start times, trying not to roster A and the Claimant onto shifts which resulted in contact between them and continuing to provide advice and guidance as referred to above (which the Claimant did not follow).[202]The issues for the Tribunal to decide in relation to this aspect of the claim are these: k. Did the Respondent act in a way for which there was no reasonable and proper cause? l. If so, was that action calculated or likely to destroy or seriously damage the relationship of trust and confidence between itself and the Claimant? m. If so, was any part of that conduct unlawful discrimination? n. If the Respondent was guilty of conduct that breached trust and confidence, did the Claimant affirm the continued existence of his contract of employment after that conduct had occurred and so lose the right to claim that he had been constructively dismissed? o. If not, was the Respondent’s repudiatory conduct the reason why the Claimant resigned?[203]The Claimant relies on the following list of “things”:[204]Provide an unsafe working environment in that the Claimant was exposed to bullying, harassment and death threats, specifically involving A and Jemma Deans on 16 July, 28 August, 5 September, 19 September and 6 December 2018.[205]The Respondent denies providing an unsafe working environment as alleged or at all. The Claimant relies upon the five incidents listed above. The Tribunal were reminded of the circumstances relating to each one, together with the fact that the Claimant on a number of occasions either instigated or added to the situation rather than following the Respondent’s advice.[206]With regard to the 16 July 2018 incident, the Respondent invited the Tribunal to conclude that there was no genuine threat and that the Claimant goaded A into reacting as he did.[207]With regard to the 28 August 2018 incident, the Respondent invited the Tribunal to conclude that this was merely a childish tooting of A’s horn and nothing more. It was not a threat.[208]With regard to the 5 September 2018 incident, the Respondent invited the Tribunal to conclude that there is insufficient evidence to conclude that the incident occurred as alleged by the Claimant and in any event, if the Tribunal were to find that A made a cutthroat gesture, the Claimant could not genuinely have felt that his life was being threatened.[209]With regard to the 19 September 2018 incident, the Respondent invited the Tribunal to conclude that again there was no genuine threat, particularly as if there had been the Claimant would not have engaged as he did with A thereafter.[210]With regard to the 6 December 2018 incident, the Respondent invited the Tribunal to conclude that this was a childish interaction between two individuals who clearly did not like each other and had both on a number of occasions acted inappropriately towards the other.[211]The Respondent could not have done anything more to have prevented these interactions between the Claimant and A in all of the circumstances, including the lack of witnesses on a number of occasions meaning that corroborating evidence was not possible. Fail to deal with the Claimant’s grievance of July 2019 against Ms Deans.[212]The Respondent sought to address this grievance but was unable to do so before the Claimant resigned. In the event that the Tribunal concluded that there was a failure, the Respondent submits this did not amount to a repudiatory breach of contract. Fail to conclude the Claimant’s grievance against A dated July 2018.[213]The Respondent did not fail to conclude the grievance. It was initially dealt with by Mr Holdway and then subsequently dealt with by Mr Hunter and Mr Leonard. Both Mr Hunter and Mr Leonard reached conclusions – the Tribunal were referred to their outcome letters. The Respondent could not rewrite history and produce an outcome letter from Mr Holdway, but it nevertheless reached conclusions. Whilst the Claimant was unhappy with the outcomes, it was not correct to say that there was a failure to conclude. Fail to facilitate the Claimant’s return to work following his absence.[214]The Respondent did not fail to facilitate a return to work. The Claimant commenced his last period of sickness absence on 4 April 2019 and remained signed off throughout the remainder of his employment during which time the Respondent was progressing his grievance / the appeal. The Claimant then resigned without any attempt to discuss a return to work. Discriminate against the Claimant contrary to section 13, section 15 or section 20/21 of the Equality Act 2010.[215]In respect of alleged discrimination, the Respondent denies any discrimination as alleged or at all.[216]The primary question for the Tribunal was whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent or without reasonable and proper cause for doing so. Mr Newman submitted there was reasonable and proper cause for all the Respondent’s actions.[217]Further, there was no credible evidence before the Tribunal that anyone involved in any of these actions was aiming to destroy or seriously damage the relationship of trust and confidence between the Respondent and the Claimant. Objectively assessed, none of these actions was likely to do so.[218]If the Tribunal concluded that the Respondent did so, the Tribunal must go on to consider whether such a breach (or breaches) was sufficiently important to justify the Claimant resigning. The Respondent submitted that in all the circumstances there was no breach sufficiently important to justify the Claimant resigning.[219]The Tribunal must also consider whether the Claimant resigned in response to such breach (or breaches, if the Claimant is relying on a “last straw” event) and whether the Claimant waived or affirmed any such breach (or breaches).[220]Even if the Tribunal accepted that the Respondent’s actions in respect of managing his arthritis condition amounted to a repudiatory breach of the Claimant’s contract, it was submitted that by his subsequent actions the Claimant affirmed the continued existence of his contract of employment and lost his right to resign and claim constructive dismissal. The Tribunal were reminded that the Claimant last undertook the INEOS Contract in August 2017 and did not do any INEOS work from May 2018. Basic Award[221]The Respondent did not challenge the calculation within the Claimant’s Schedule of Loss but submitted that it would be just and equitable to reduce the basic award because of the Claimant’s conduct in his own interactions with A which took place before any dismissal. The Respondent submitted that a 25% reduction would be appropriate. Compensatory Award[222]The Tribunal were reminded that the Claimant’s pay in 2015/16 was not reflective of his pay from May 2018 when he dropped to 4 days per week as a result of his doctor’s advice. In cross examination the Claimant accepted the following calculations were correct: 'Average pay from May 2018 to April 2019 from his bank statements = £27,850.61 Resulting in an average net monthly pay of £2,320.88 And so an average net weekly pay of £535.59.'[223]The Claimant accepted in cross examination he could no longer drive HGV because of his hip in December 2020. The Tribunal were reminded of the evidence of Mrs Bannan as well, who confirmed that the Claimant was unable to drive HGV.[224]The Respondent submitted that if the Claimant was successful in his claim of unfair dismissal, his Compensatory Award should, prior to any reduction, be: £535.59 * 65 weeks = £34,813.35 160.2. Less sums earned in mitigation of: £7,297.50 160.3. = £27,515.85[225]The Respondent submitted that this figure should be reduced because of the Claimant’s own blameworthy conduct. He repeatedly placed himself into situations which escalated the issues that existed between himself and A. In the circumstances, a reduction by 25% to £20,636 would be appropriate. Failure to mitigate loss[226]The Respondent submitted that the Claimant also failed to mitigate his loss and that should be taken into account. On his own case, he made some effort to obtain new employment in February 2020, by writing to five transport companies. He did not repeat that exercise, expand his enquires or consider alternative options thereafter.[227]The unchallenged evidence of a number of the Respondent’s witnesses addressed the Tribunal on the widely publicised driver shortage across the transport sector. Put simply, had the Claimant wished to do so, he could have obtained a driving role. The Claimant should not be entitled to any losses beyond 2020. Chance the Claimant would have been fairly dismissed[228]The Respondent also submitted that the Claimant would have been dismissed by the end of 2020 as a result of his being unable to drive HGV. Direct Disability Discrimination (Equality Act 2010 section 13)[229]The Claimant asserted that retaining him on the INEOS contract was less favourable treatment and relies upon Mr Scarff and Mr Gavin as comparators. Mr Gavin suffers from sleep apnoea. He was told by his doctor not to work nights. He informed the Respondent of this and his line manager, Raymond Gray, followed that advice. The Respondent contended that in such circumstances there was no need for an OH referral. In contrast to the Claimant’s situation, there was a clear reported medical restriction, whereas in respect of the Claimant the medical advice was that he was actually fit to undertake his duties. When the Claimant informed the Respondent that he was unable to work on INEOS he was not required to do so.[230]Mr Scarff had a personal medical problem meaning that he preferred to work shifts that involved driving longer distances. Whilst he was recovering the Respondent tried to accommodate him. The Claimant argued that Mr Scarff was taken off a contract and not required to undertake shorter driving shifts. The Claimant was never required to work the INEOS Contract so in effect he was treated the same as Mr Scarff.[231]For the reasons referred to above, the Respondent submits that there are material difference between the comparators’ circumstances and those of the Claimant.[232]The Respondent denied that there was less favourable treatment. The Claimant was not forced to work on the INEOS Contract and from May 2018 did no INEOS work. Simply keeping an open mind to an ability to undertake that work so some extent in the future is not less favourable treatment.[233]In the event that the Tribunal concluded that there was less favourable treatment, it should then determine whether it was because of the Claimant’s disability. There was no evidence that the Respondent retained the Claimant on the INEOS Contract because of his arthritis and that was never put to the Respondent’s witnesses.[234]The Tribunal were also reminded of the Claimant’s evidence relating to the reasons why he believed he was retained on the INEOS Contract. He alleged that the real reason was because of Ms Deans’ relationship with A, which therefore indicated that even he believed it was not because of his disability. Discrimination Arising from Disability (Equality Act 2010 section 15)[235]The Claimant relied upon the following allegation of unfavourable treatment: retaining him on the INEOS contract after he had informed the Respondent of his condition in August 2017.[236]The Respondent did not require the Claimant to undertake the INEOS Contract from August 2017. The Claimant himself accepted he never undertook that work (i.e., four runs between Inter Terminal and INEOS) from that date. He also accepted that he never did any discharges at all at INEOS from May 2018.[237]Simply keeping an open mind as to whether the Claimant might be able to undertake some INEOS work in the future in light of OH advice cannot reasonably be found to amount to unfavourable treatment.[238]The Claimant argues that the following arose in consequence of his disability: retaining him on the INEOS contract despite the pain doing so causing him harm. If the Tribunal should conclude that the Claimant was retained on the INEOS Contract, the Respondent submitted that by virtue of him never actually undertaking that work, it is incredible to suggest that pain could have arisen in consequence of his disability.[239]The Tribunal must determine whether the alleged unfavourable treatment was because of that “thing”.[240]The Claimant did not undertake the INEOS Contract and as such cannot establish there was unfavourable treatment that was because of pain arising from his disability.[241]In the event that the Tribunal concluded there was unfavourable treatment amounting to a prima facie case of unlawful discrimination, the Respondent submitted that it could show the treatment was a proportionate means of achieving a legitimate aim.[242]The Respondent’s legitimate aim was to maintain a flexible workforce with the ability to undertake a variety of work whilst taking into account individual circumstances and medical advice. Keeping an open mind to the possibility that the Claimant might be able to undertake some work at INEOS (in the context of his issues with INEOS being understood to be the INEOS Contract not INEOS per se) was an appropriate and reasonably necessary way of achieving that aim with no less discriminatory option available to it in the circumstances where the Claimant was never forced to undertake the INEOS Contract. The effect of the Respondent’s approach to managing the Claimant’s work was to effectively remove him from that work but keep an open mind to the possibility of him undertaking some of it based on Occupational Health advice.[243]In deciding the above, the Tribunal must consider whether the Respondent knew or could it reasonable have been expected to have known that the Claimant had the disability and from what date. The Respondent submits that in light of the medical evidence available to it, it did not have knowledge of the Claimant’s disability but accepts it was aware that he had arthritis from around the end of 2017. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)[244]The duty to make adjustments arises if an employee is put at a substantial disadvantage in comparison with a person who is not disabled because of the application of a practice or lack of an auxiliary aid, and the employer knew or could reasonably have been expected to know that the employee was a disabled person and was at that disadvantage.[245]The employer is then under a duty to take such steps as it is reasonable for it to have to take to avoid the disadvantage (Section 20 EqA). A failure to meet the duty amounts to discrimination (Section 21(2)) and if the employer subjects the employee to a detriment by discriminating in this way, it is unlawful (Section 39(2)(d)).[246]In relation to each allegation of failure to meet the duty to make adjustments, the Tribunal needs to decide: p. In relation to the allegations about adjustments to practices, did the Respondent have that practice? q. Was the Claimant at a substantial disadvantage compared with a nondisabled person because of the practice or the lack of the auxiliary aid? A disadvantage is substantial if it is anything more than minor or trivial (Section 212(1) EqA). r. If he was, did the Respondent know that, or could it reasonably have been expected to know that, and when did that actual or constructive knowledge first arise? s. What steps, if any, did the Respondent take to adjust the practice or provide the aid, and when? t. Were those steps sufficient to amount to the steps that it was reasonable for it to have to take to avoid the disadvantage to the Claimant? u. In deciding whether the Respondent failed in its duty to make reasonable adjustments, the Tribunal must consider whether the Respondent knew or could reasonably have been expected to have known that the Claimant had a disability and from what date.[247]The Claimant relies on the Respondent having the following PCPs: v. the requirement to stand/be on his feet for significant periods of time during a shift whilst working on the INEOS contract; and w. the requirement for the Claimant to work on the INEOS Contract, which regularly required him[248]The Respondent did not apply either PCP. On the Claimant’s own case, he did not undertake the INEOS Contract from August 2017 and as such was not required to stand/be on his feet for significant periods of time during a shift whilst working on the INEOS Contract. Nor was there a requirement for him to work on the INEOS Contract, which would have regularly required him to stand/be on his feet whilst working for significant periods of time during a shift.[249]The Tribunal must consider whether the PCP put the Claimant at a substantial disadvantage compared to someone with the Claimant’s disability by causing pain to the Claimant’s hip.[250]In the event that the Tribunal disagree with the Respondent’s position relating to the PCPs, it submits that the Claimant was not put at a substantial[251]It must also consider whether the Respondent knew, or could it reasonably have been expected to know, that the Claimant was likely to be placed at a[252]In light of the medical evidence from OH available to it, the Respondent denies that it knew, or could it reasonably have been expected to know, that the Claimant was likely to be placed at a disadvantage.[253]Further, in respect of steps that the Claimant says could have been taken to avoid the disadvantage, the Claimant relies upon the Respondent’s alleged failure to: x. provide the claimant with a chair. y. transfer the Claimant onto another contract which did not have the requirement to regularly stand/be on his feet whilst working for significant periods of time during a shift.[254]In determining whether it was reasonable to have taken those steps and when; and whether the Respondent failed to take those steps, the Respondent submitted that in light of the clear and unambiguous position from INEOS, that a chair / seat was not allowed, it cannot be found to have failed in its duty to make reasonable adjustments. It was simply unable to provide a chair.[255]Further, the Respondent did require the Claimant to undertake other work that did not have the requirement to regularly stand/be on his feet whilst working for significant periods of time during a shift (as on the INEOS Contract) – on his own case he did not undertake this work from May 2018.[256]The Respondent submits that no compensation should be awarded for general financial loss and/or pension loss arising as a consequence of the prohibited acts. The Claimant has not adduced any evidence in support of this.[257]The Respondent submits that little weight should be attached to Mrs Bannan’s evidence in which she believed the Claimant suffered a mental breakdown. There is simply no evidence to support this.[258]When asked in cross examination about the sum claimed in respect of Injury to Feelings, the Claimant referred to Welfare Meetings being held in Portacabins with the windows open and needing to change his shifts (which was on doctor’s advice). This was his only oral evidence as to why he is claiming £15,000.[259]He accepted he had never sought medical assistance from, for example, a psychologist. He accepted he carried on working beyond August 2017 and subsequently May 2018. He never had any time off as a result of his arthritis at all.[260]The Respondent submitted that the Claimant was not entitled to any Injury to Feelings award. If the Tribunal concluded that the Claimant had been discriminated against and was entitled to such an award, the Respondent submitted that a sum towards the lower end of the lower band of the Vento guidelines should be considered. In support, the Tribunal were reminded that the Claimant had not adduced any evidence in support of Injury to Feelings. Whilst the Claimant had not worked since December 2020, that was, on his own case, due to the deteriorating nature of his arthritis and the fact that he was unwilling to look for non-driving work, not the conduct of the Respondent. Discussion and decision[261]Taking the list of issues in turn, the Tribunal finds as follows:[262]Did the Respondent do the following things: Provide an unsafe working environment in that the Claimant was exposed to bullying, harassment and death threats, specifically involving Brian Shaw and Jemma Deans on 16 July, 28 August, 5 September, 19 September and 6 December 2018;[263]The respondent failed to take appropriate steps to address the claimant's complaints against A. Its attitude towards complaints against A was starkly demonstrated by the unfair and inadequate manner in which it dealt with the disciplinary proceedings arising from the altercation between the claimant and A on 12 January 2018.[264]That investigation was fundamentally tainted by Jemma Deans' lack of objectivity when providing her statement about the event, compounded by the respondent's unreasonable failure to take a further statement from Miss Deans when her reported relationship with A was raised as a factor that may have affected her objectivity and independence, even when the claimant invited the respondent to investigate particular allegations against A that the claimant said occurred when Miss Deans was present.[265]Thereafter the respondent failed to take seriously and deal adequately with the claimant's reports of A's alleged conduct towards him in relation to subsequent alleged events on 16 July, 28 August, 5 September, 9 September and 6 December 2018 even though it was well aware of A's propensity for intimidating its employees, including members of its own management team, and despite the clear and unambiguous language of the claimant's reports of A's behaviour towards him, which signalled that the impact on his was profound and serious.[266]It failed to interview any other employees, even though it was clear to the Tribunal that they would have known and likely would have spoken of A's behaviour in the workplace. It failed even to speak to A, which in the context of the claimant's repeated complaints of his behaviour and the respondent's knowledge of his behaviour towards other employees was a scandalous omission.[267]In the absence of the respondent taking any action to protect him from A the claimant was left in a position where he had to take his own steps for his own safety, such as reducing his working week from 5 days to 4 days and starting his shift early at 3.30 a.m., so as to avoid coming into contact with A in the Grangemouth yard.[268]Unfortunately, in the absence of any intervention on the part of the respondent that was inadequate and A's campaign of harassment of the claimant continued, leaving him with no reasonable option but to go off sick and, following the respondent's failure to deal adequately with his grievance, to resign and claim that he had been constructively dismissed.[269]The respondent failed completely to respond to the claimant's clear distress about his work situation. He could not have made it any clearer to the respondent than he set out in his e-mails to HR that he found his working conditions intolerable and the reasons why. Any reasonable employer would have realised that more action needed to be taken. Yet the respondent took no action whatsoever to address A's behaviour, despite it knowing full well about A's character and behaviour towards other colleagues and even one of its managers.[270]Instead, it left it to the claimant to make his own arrangements to avoid A, such as reducing his working days and starting earlier than him, even though it was obvious by April 2019 when the claimant went off sick, that these steps were inadequate and the abuse he continued to receive from A on a regular basis left him feeling unsafe.[271]Although the respondent eventually, between May and August, dealt with the claimant's grievances the Tribunal's conclusion was that Mr Hunter and Mr Leonard simply went through the motions. Although Jemma Deans was spoken to, this was principally to confirm the arrangements the claimant had put in place to avoid A, but not to investigate with her the claimant's legitimate concern that she had been fundamentally compromised in relation to the 12 January 2018 incident because of her suspected relationship with A.[272]The claimant had made it plain to the respondent that this was a key concern, which undermined his trust in his manager's ability and willingness to address and his legitimate fears about A's conduct towards him and provide him with a safe working place. Yet the respondent repeatedly and egregiously ignored it.[273]Other than Jemma Deans no other employee was spoken to about the matters the claimant was aggrieved about, even though A's bullying and intimidating behaviour towards his colleagues was notorious.[274]So far as the claimant was concerned the raising of his grievance proved utterly pointless as the respondent failed to suggest, far less implement, a single further measure in addition to those that the claimant had already put in place, which were all that he had the power to do. He had made it abundantly clear to the respondent that such measures as he had put in place were not working and his health was evidently suffering, as evidenced by his absence since 4 April 2019. It did not even propose that he be referred to Occupational Health in circumstances where his health had plainly been profoundly impacted by A's behaviour and the respondent's failure to address that behaviour.[275]In all the circumstances the respondent's failures to take the claimant's grievance seriously and to take appropriate action to manage A's behaviour towards him rendered the workplace unsafe for the claimant. Fail to deal with the Claimant’s grievance of July 2019 against Ms Deans;[276]On the evidence it was clear that the respondent did not even attempt to deal with the claimant's grievance of 4 July 2019 against Miss Deans until 30 September 2019 after he had already resigned on 27 September 2019. This was further evidence of the respondent's clear unwillingness to deal seriously with the claimant's concerns. Fail to conclude the Claimant’s grievance against A dated July 2018;[277]There was a clear failure to conclude that grievance. No outcome was provided despite Mr Holdway's assurance to the claimant that he would report back to him with his decision and despite a number of additional serious and similar allegations having been made in the months after the grievance meeting on 25 July 2018. The claimant was not provided with any details of the investigation undertaken by Mr Holdway, his conclusions or his proposed actions to be taken. In the meantime, he continued to feel unsafe in the workplace and was in fact subjected to further threats and intimidation at the hands of A. Fail to facilitate the Claimant’s return to work following his absence?[278]In the absence of the respondent taking any action to protect him from A the claimant was left to take steps for his own safety, such as reducing his working week from 5 days to 4 days and starting his shift early at 3.30 a.m., so as to avoid coming into contact with A in the Grangemouth yard.[279]Unfortunately, in the absence of any intervention on the part of the respondent, that was inadequate and A's campaign of harassment of the claimant continued, as a result of which he went off sick. The grievance process was the respondent's opportunity to deal with the claimant's concerns about A and put measures in place to facilitate his return to work, but it failed to do so. Discriminate against the Claimant contrary to section 13, section 15 or section 20/21 of the Equality Act 2010?[280]For the reasons set out below, the Tribunal finds that the respondent did not discriminate against the claimant in breach of section 13 or section 15 of the Equality Act 2010.[281]If so, did the Respondent breach the implied duty of mutual trust and confidence in the Claimant’s contract of employment by: i. Behaving in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; or ii. Without reasonable and proper cause for doing so?[282]In the present case the claimant relies on an alleged breach of the implied term of trust and confidence. As established in Malik v BCCI 1997 ICR 606, this is a requirement that an employer must not – ‘‘without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”.[283]For the reasons set out above, the Tribunal had no doubt whatsoever that the respondent had, without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between it and the claimant.[284]If so: Was such breach (or breaches) sufficiently important to justify the Claimant tendering his resignation? Has the Claimant resigned in response to such breach (or breaches, if the Claimant is relying on a “last straw” event)? Has the Claimant waived or affirmed any such breach (or breaches)?[285]The Tribunal concludes that the claimant resigned in response to the respondent's failure to provide him with a safe working environment, to deal with his grievance of July 2019 against Miss Deans, to deal with his grievance against A dated July 2018 and its failure to facilitate his return to work following his absence, which began on 4 April 2019.[286]By its repeated failures to deal with his complaints about A, the respondent egregiously failed to provide the claimant with a safe working environment and he could not reasonably have been expected to return to work after his sick absence beginning on 4 April 2019. The respondent's conduct in this regard was sufficiently serious to justify the claimant tendering his resignation. The Tribunal finds that these were the reasons why the claimant resigned and that he did not waive or affirm those breaches.[287]Having regard to the evidence presented about the grievance procedure that preceded the claimant's resignation the Tribunal was not persuaded that the claimant also genuinely resigned in response to the respondent's alleged disability discrimination. His grievance dealt with by Mr Hunter and Mr Leonard never mentioned his disability, only his treatment in relation to A. In those circumstances the Tribunal concluded that the alleged discrimination did not form a material and integral part of the repudiatory conduct in response to which he resigned.[288]In any event even if he had resigned in response to that failure he had affirmed that breach by continuing to remain in the respondent's employment until 27 September 2019 in circumstances where he had complained about the respondent's failure to make adjustments since as far back as November 2017 and had been aware of the respondent's final position, having regard to the medical advice it had obtained eleven months earlier, on 24 October 2018.[289]The Claimant seeks compensation only.[290]If there is a compensatory award, how much should it be? The Tribunal will decide: What financial losses has the dismissal caused the Claimant?[291]The Tribunal concluded that the claimant should be awarded wage loss for the period between his dismissal and the point in time when he would have been unable, by reason of his disability, to carry on working with the respondent as a driver. It therefore finds that he is entitled to a compensatory award for unfair dismissal, calculated as follows: Loss of earnings between dismissal on 27 September 2019 and 31 December 2020 = 66 weeks at £535.59 = £35,348.94 Loss of pension contributions = 66 weeks at £21.63 per week = £1,427.58 Subtotal - £36,776.52 Minus money earned post dismissal in mitigation - £7,297.50 Total wage loss = £29,479.02 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?[292]The Tribunal was satisfied that the claimant had taken reasonable steps to mitigate his loss by setting up his own business and by applying, albeit ultimately unsuccessfully, for drivers' roles. If not, for what period of loss should the Claimant be compensated?[293]The claimant took reasonable steps to mitigate his loss, Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?[294]There is no evidence that the claimant would have been fairly dismissed in any event before 31 December 2020. If so, should the Claimant’s compensation be reduced? By how much?[295]There is no basis upon which to reduce the claimant's compensation on the ground that he would have been fairly dismissed in any event.. Did the Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas code) apply?[296]The Acas Code did apply, in circumstances where the claimant resigned because of the respondent's repeated failures to deal properly with his grievances. The relevant parts of the code, as identified by the claimant, are as follows – ''34. Employers, employees and their companions should make every effort to attend the meeting. Employees should be allowed to explain their grievance and how they think it should be resolved. Consideration should be given to adjourning the meeting for any investigation that may be necessary. … 40. Following the meeting decide on what action, if any, to take. Decisions should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken.'' Did Claimant unreasonably fail to comply with it by raising the issues with the Respondent by way of grievance or appeal?[297]There is no evidence that the claimant failed at all to comply with the Code. It was a feature of his evidence that he repeatedly and appropriately raised grievances, initially about A and subsequently the respondent's failures to protect him from A. Did the respondent unreasonably fail to comply with the Acas code?[298]The respondent's initial failure was its failure to provide the claimant with any outcome to his grievance about the 16 July 2018 incident. No reason was ever offered for that failure. In light of the seriousness of the claimant's concerns about the July 2018 incident and its impact on him, which were soon followed by concerns about subsequent similar incidents the respondent's failure to provide any outcome whatsoever was an unreasonable one: particularly having regard to its size and resources, including it having a dedicated HR department.[299]Although the respondent eventually, between May and August, dealt with the claimant's grievances the Tribunal's conclusion was that Mr Hunter and Mr Leonard simply went through the motions. Although Jemma Deans was spoken to, this was principally to confirm the arrangements the claimant had put in place to avoid A, but not to investigate with her the claimant's legitimate concern that she had been fundamentally compromised in relation to the 12 January 2018 incident because of her suspected relationship with A.[300]The claimant had made it plain to the respondent that this was a key concern, which undermined his trust in his manager's ability and willingness to address and his legitimate fears about A's conduct towards him and provide him with a safe working place. Yet the respondent repeatedly ignored it. That was an unreasonable failure in the light of the respondent's state of knowledge of A's behaviour in the workplace and its impact on the claimant.[301]Other than Jemma Deans no other employee was spoken to about the matters the claimant was aggrieved about, even though A's behaviour towards his colleagues was notorious, and the respondent had the resources to conduct a more thorough investigation.[302]In the circumstances the Tribunal finds that the respondent's failures to follow the Acas code were unreasonable. If so it is just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?[303]The Tribunal finds that by virtue of the seriousness of the respondent's unreasonable failures and their impact on the claimant that he is entitled to an uplift of 25%. The respondent has significant resources, including a dedicated HR department. Its failures to inform the claimant of the outcome of its investigation into his grievance about the 16 July 2018 incident and, in all the circumstances, to identify and interview relevant witnesses in connection with his 15 May 2019 grievance were wholly unreasonable. In determining this uplift the Tribunal takes into account the overall amount of the compensatory award and finds it proportionate that such an uplift is made. If the Claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?[304]The claimant did not to any extent cause or contribute to his dismissal by blameworthy conduct. If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?[305]It would not be reasonable to reduce the claimant's compensatory award. Does the statutory cap of fifty-two weeks’ pay apply?[306]Yes, having regard to the reason found by the Tribunal for his dismissal, the statutory cap should apply. What basic award is payable to the Claimant, if any?[307]The parties were in agreement that the basic award should be calculated on the basis of the claimant having been 54 years old at the date of termination of his employment at which time he had completed 8 full years of service. The appropriate award is therefore 12 weeks' pay at the statutory maximum applicable on 27 September 2019, that is £525, resulting in a basic award of £6,300 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?[308]There are no grounds upon which it would be just and equitable to reduce the claimant's basic award.[309]Direct Disability Discrimination (Equality Act 2010 section 13) Did the Respondent do the following: retain the Claimant on the INEOS[310]The claimant was retained on the Ineos contract until his resignation, at least in the sense that he was never told he would no longer be involved in that work because of his health. However, he was never required to do 4 ethanol collections and deliveries on the INEOS contract after August 2017 and he did not do any ethanol collections or deliveries at all after May 2018.[311]The Tribunal considered that in respect of the allegation of direct discrimination, where the primary facts were not in dispute, that it was able to depart from a rigid approach to the two-stage test in its approach to the burden of proof. It felt able to consider the evidence as a whole, including the respondent's explanation for its admitted treatment of the claimant, in making its determination as to whether direct discrimination took place.[312]There was no dispute that while the claimant was no longer required to do the 4 delivery INEOS contract after his likely arthritis diagnosis in August 2017 he was still retained on some ethanol work after that date and also after November 2017 when he made his concerns clear to the extent that he threatened to raise a grievance if he was required again to deliver ethanol to INEOS.[313]It was clear to the Tribunal that the claimant had been treated less favourably than his non-disabled comparators who were in the same position as he was in in all material respects; that is having declared a health condition affecting their ability to carry out their normal duties.[314]In those comparable circumstances the respondent's insistence that the claimant should remain in his normal role meantime was less favourable treatment than the treatment of the comparators who were taken off their normal duties without fuss soon after they discussed their health conditions with their managers. If so, was it because of disability?[315]For a claim of direct discrimination to succeed, it must be shown that the disability itself was the reason for the less favourable treatment. Although the respondent's retention of the claimant on INEOS work in circumstances where his disability made that work painful for him was less favourable treatment than his comparators received, there is no evidence that this treatment was because of his disability. Rather it was treatment meted out to him in spite of his disability.[316]Similarly, the reason for the respondent's insistence that the claimant, unlike his comparators, be referred to its occupational health advisers for advice was not the claimant's disability itself, but rather because it wished to obtain professional advice about whether his disability adversely affected his ability to perform his normal duties.[317]In the circumstances the claimant's claim of direct discrimination must fail.[318]Discrimination Arising from Disability (Equality Act 2010 section 15) Did the Respondent treat the Claimant unfavourably by: retaining the respondent of his condition in August 2017?[319]The Tribunal considered that in respect of the allegation of discrimination arising from disability, where the primary facts were not in dispute, that it was able to depart from a rigid approach to the two-stage test in its approach to the burden of proof. It felt able to consider the evidence as a whole, including the respondent's explanation for its admitted treatment of the claimant, in making its determination as to whether discrimination arising from disability took place. The Tribunal reminded itself of the two distinct steps to the test to be applied in determining whether discrimination arising from disability has occurred:-(1) Did the claimant’s disability cause, have the consequence of or result in “something”?(2) Did the employer treat the claimant unfavourably because of that “something”?[320]On the particular facts of this case, while the Tribunal accepted the claimant's submission that the claimant's disability caused him pain, it was not persuaded that the respondent had retained him on the contract after November 2017 because of that pain. Rather it found that the respondent kept him on the INEOS contract in spite of his pain.[321]While that was not on any view an acceptable way to deal with the situation, that conduct nevertheless does not meet the statutory test that has to be applied. The Tribunal therefore finds there is no prima facie case established that there was discrimination arising from disability[322]Reasonable Adjustments (Equality Act 2010 sections 20 & 21) Did the Respondent know or could it reasonable have been expected to know[323]The respondent should have known that the claimant had a disability from August 2017 when the likely diagnosis of osteoarthritis was handed to Miss Deans, in circumstances where the claimant had already been telling his supervisors since October 2016 about his pain and discomfort while standing for extended periods of time. At that stage the respondent ought reasonably to have known that his condition met the statutory test.a. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs i. the requirement to stand/be on his feet for significant periods of time during a shift whilst working on the INEOS contract; and ii. the requirement for the Claimant to work on the INEOS contract, which regularly required him to stand/be on his feet whilst working for significant periods of time during a shift.b. Did the Respondent apply the PCPs to the Claimant?[324]The evidence clearly showed that the respondent applied the first PCP to those of its workforce required to work on ethanol collection and deliveries on the 'Ineos' contract and that the claimant was required to work on the Ineos contract, thus being subject to that PCP during such work. He was therefore subject to both PCPs. c. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability by causing pain to the Claimant’s hip?[325]Yes, the claimant was at a substantial disadvantage compared to someone without his disability, because of the pain and discomfort caused to him by the requirement to remain on his feet during the ethanol loading and unloading processes. d. Did the Respondent know, or could it reasonably have expected to know, that the Claimant was likely to be placed at a disadvantage?[326]The respondent knew or ought to have known by August 2017 that the claimant was likely to be placed at a disadvantage by having these PCPs applied to him e. What steps could have been taken to avoid the disadvantage? The Claimant relies upon the Respondent’s alleged failure to: i. provide the claimant with a chair. ii. transfer the Claimant onto another contract which did not have the requirement to regularly stand/be on his feet whilst working for significant periods of time during a shift. f. Was it reasonable to have taken those steps and when?[327]The Tribunal finds that the claimant should have been taken off these duties altogether in August 2017. It would have been reasonable at that point in time to take him off all ethanol work and deploy him on other contracts that did not require him to be on his feet for significant periods of time during a shift. Taking that step would have removed his disadvantage by enabling him to work without pain and discomfort. According to Jon Price such suitable work was available at that time. It would therefore have been practicable to make that adjustment and it would not have been disruptive to the respondent's business.[328]However, it was not reasonable for the respondent to provide a chair in circumstances where the INEOS terminal manager had informed it that a chair was not allowed, and the respondent was not in a position to countermand that rule. g. Did the Respondent fail to take those steps?[329]The respondent failed to make the adjustment of removing him from Ineos/ethanol duties in August 2017 and instead required him to carry on working on those duties until May 2018.[330]Is the Claimant entitled to compensation for general financial loss and/or pension loss arising as a consequence of the prohibited acts? The claimant lost no income as a result of the respondent's failure to make this reasonable adjustment, so he is not entitled to general financial or pension loss.[331]If so, what sum should be awarded? N/A[332]Is the Claimant entitled to an award for Injury to Feelings? The claimant is entitled to an award for injury to feelings.[333]If so, taking into account the Vento guidelines, what sum should be awarded? The claimant felt that he was being forced to work the INEOS shift in circumstances in which he had made it plain that it caused him pain and discomfort. This caused him feelings of inadequacy and humiliation and impacted his mental health and his relationship with his family. He became uncommunicative and irritable with them. He suffered bouts of depression. He had always taken pride in his role as a driver in the heavy goods industry and the respondent's failure to make adjustments affected him profoundly[334]In the circumstances the Tribunal found that the appropriate band in terms of the guidelines set out in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 was the middle band, which covers serious cases that do not merit an award in the highest band and that the appropriate award was £10,000.
Remedy
[335]The claimant's basic award is £6,300.[336]In addition, the claimant is entitled to a compensatory award for unfair dismissal, calculated as follows: Wage loss Loss of earnings between dismissal on 27 September 2019 and 31 December 2020 = 66 weeks at £535.59 = £35,348.94 Loss of pension contributions = 66 weeks at £21.63 per week = £1,427.58 Subtotal - £36,776.52 Minus money earned post dismissal in mitigation - £7,297.50 Total wage loss = £29,479.02 Other elements of compensatory award Uplift for unreasonable failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures – 25% = £7,369.76 Loss of statutory rights - £500 Total compensatory award Total award - £29, 479.02 + £7,369.76 + £500 = £37,348.78 Grossing up Calculation Amount of compensation up to the £30,000 tax free element = £30,000 - £6,300 = £23,700 Amount of compensation award that should be taxed = £37.348.78 - £23,700 = £13,648.78 Taxable element = £13,648.78 Grossed up element of compensation - £13,648.78 / 0.8 = £17,060.98 Total compensation = £23,700 + £17,060.98 = £40,760.98 Injury to feelings - £10,000 grossed up - £10,000/0.8 = £12,500 Total award – Basic award - £6,300 Compensatory award - £40,760.98, subject to statutory cap of 52 x £721 = £37,492 Injury to feelings - £12,500 Total - £56,292
Remedy
[1]Pursuant to Rule 76 of the Employment Tribunal Rules of Procedure 2013, the T ribunal makes a costs order in favour of the claimant on the grounds that parts of the response had no reasonable prospects of success and that the respondent’s conduct in relation to those parts of the proceedings that had no reasonable prospects of success was unreasonable.[2]Under rule 78(1 )(a), the Tribunal assesses the costs to be paid by the respondent to the claimant at £1 1 ,51 4.
Background
[3]Pursuant to the Tribunal’s judgment in favour of the claimant that he was unfairly constructively dismissed by the respondent and that it failed to make reasonable adjustments for his disability, the claimant has presented a written. application for costs in terms of rules 76(1 )(a) and 76(1 )(b) of the Employment Tribunals Constitution and Rules of Procedure (Regulations 2013).[4]The claimant’s application under rule 76(1 )(a) is in the following terms: “An application is made under rule 76(1 )(a) on the basis that the respondent 5 acted unreasonably in the conducting of proceedings by continuing with their defence as to the aforementioned two heads of claim. The respondent's defonco to the two heads of claim in question had no reasonable prospects of success for the reasons set out above. Considering all the facts known to the parties from the outset of proceedings, the respondent still continued with io their defence. There was no new evidence produced by either party relating to these two defences that would not have been available to the respondent from prior to the commencement of proceedings, or that the latest by the preliminary hearing on disability status on 10-11 March 2021 (in relation to disability status itself for the reasonable adjustments claim), as to change the position of the respondent’s defence as to prospects of success. As a consequence, the claimant incurred expenses in the requirement to continue to pursue the heads of claim which remained opposed throughout proceedings. It is submitted that the respondent’s conduct in this regard was unreasonable in all the circumstances. ”[5]In respect of rule 76(1 )(b) the claimant's application is in the following terms: “An application is made under rule 76(1 j(bj on the basis that parts of the respondent’s response had no reasonable prospects of success, specifically the defence to the claims of constructive unfair dismissal and failure to make reasonable adjustments for the claimant’s disability, contrary to section 21 of the Equality Act 2010. These are matters that the respondents should have reasonably known prior to presentation of the ET 1. The respondent ought to have known that the response prepared by them to address these two heads of claims had no reasonable prospects of success. ”[6]The claimant’s application was supported by detailed written submissions and reference to authority, as was the respondent’s written application, both of which were fully considered by the Tribunal.[7]Both parties gave their consent to the application being determined without a hearing and therefore to that end the Tribunal met in person on 4 October 2022 to make its decision.
The relevant law
[8]Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that: “(1) A Tribunal may make a costs order or a preparation time order and shall consider whether to do so, where it considers that -(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either bringing the proceedings (or part) or the way that the proceedings (or part) have been conducted; or .(b) any claim or response had no reasonable prospect of success. ”[9]In Opalkova v Acquire Care Limited EAT 0056/21, the EAT provided guidance to Tribunals faced with deciding whether there has been unreasonable conduct. In such situations the position has to be considered separately in respect of each claim contained within the ET1 form or, as appropriate, the response to each of those claims.[10]It also clarified that the following questions were relevant to the test for unreasonable conduct and for determining whether to make an order because a party’s case had no reasonable prospect of success -• Objectively analysed, when the claim or response was submitted did it have no reasonable prospects of success, or alternatively at some later stage as more evidence became available was a stage reached at which the claim or response had no reasonable prospect of success? This is the threshold test for making a preparation time order under rule 76(1)(b).• At the stage the claim or response had no reasonable prospects of success, did the relevant party know that was the case? The answer to this question is relevant to the discretion of the question of whether a preparation time order should be made under rule 76(1 )(b). It is also relevant to the threshold test when making a preparation time order on the basis of unreasonable conduct under rule 76(1 )(a). 5• If the relevant party did not know that the claim or response had no reasonable prospects of success, should they have known? 1 1 . The issues for the Tribunal to determine aro therefore whether: ® objectively analysed, when the response was submitted, did it have no reasonable prospects of success; or alternatively, at some later stage io as more evidence became available, was a stage reached at which the respondents ceased to have reasonable prospects of success?• at the stage that the response had no reasonable prospects of success, did the respondents know that was the case?• if not, should the respondents have known that the response had no reasonable prospects of success?• if it knew or should have known that its response had no reasonable prospect of success, did the respondent act unreasonably in continuing to defend the proceedings or part of the proceedings? Submissions Claimant’s submission[12]In his submission the claimant asserted that certain relevant factual matters were known to the respondent prior to presentation of its response, specifically that - In relation to the respondent’s knowledge of the claimant’s disability - 25 13. The respondent was in possession of the claimant’s diagnosis of arthritis referring to pain and his having informed his managers about his pain and discomfort since October 201 6. Yet the respondent continued to deny that the respondent had knowledge of the claimant’s disability or that he could have i been placed at a disadvantage by the application of the pled PCPs, despite(1) the respondent accepting at the Preliminary Hearing on disability status that the claimant suffered from a progressive condition (arthritis) and(2) the respondent being in possession of the claimant’s diagnosis referring to pain and his having informed his managers about his pain and discomfort since October 201 6. In relation to the constructive dismissal claim -[14]The claimant had repeatedly alerted the respondent to procedural issues in dealing with his complaints during his employment, including the alleged bias of Jemma Deans. In that respect the Tribunal had noted the respondent’s failure to address the alleged bias of Jemma Deans, the respondent’s failure to take statements from potentially relevant witnesses relating to the claimant’s complaints, the respondent’s inadequate investigation into the claimant’s complaints regarding A despite knowledge of A’s behaviour, and it had found that “the respondent repeatedly and egregiously ignored” the claimant’s legitimate fears about A’s conduct and his safety in the workplace and that this led to his resignation.[15]The respondent would have been aware of these acts or omissions by the respective individuals involved, and through the documentation, and indeed absence of production of documentation (such as failing to obtain witness statements), at the time of submission of the response to the claims. On the matter of the failure to make reasonable adjustments -[16]The Tribunal had noted the respondent being in possession of the claimant’s diagnosis referring to pain and his having informed his managers about his pain caused by work on the INEOS contract (ethanol work) since October 201 6. It had determined that “there was no reason why the respondent could not have taken the claimant off ethanol work and allocated him alternative duties from August 2017 when he produced to the respondent the report from Dr Patton. Allocating him such duties would not have been disruptive to the respondent's business. Such a step would have been practicable, and it would have removed the disadvantage he was at relative to non-disabled drivers who were tasked with ethanol work”[17]The claimant therefore submits it was clear that the respondent had knowledge of the various failures above that were relied upon for the claimant’s constructive dismissal complaint. It knew it had no reasonable or proper cause for these failings. It was aware that the claimant resigned because of these failures. Furthermore, it knew of the claimant’s progressive health condition and that it caused him pain from at least August 201 7. It was able to take steps to remove the disadvantage, as had been afforded by it to io other drivers. Yet it failed to take these steps, thereby failing to make the required reasonable adjustment. The respondent knew it had failed to take these steps.[18]The claimant submits that the focus of the Tribunal’s focus in assessing the application on this ground must be in relation to the defences to the two heads of claim relied upon only, and not the rest of the respondent’s defence. The EAT in Opalkova had set out the relevant questions for a T ribunal to consider: “Accordingly, there are three key questions. First, objectively analysed when the response was submitted did it have no reasonable prospects of success; or alternatively at some later stage as more evidence became available was a stage reached at which the response ceased to have reasonable prospects of success? Second, at the stage that the response had no reasonable prospects of success did the respondent know that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success?”[19]Addressing the first question, considering the respondent’s knowledge of the facts referred to above, as confirmed by the Judgment, it could not be considered that the respondent had reasonable prospects of success with regards to these two defences.[20]While the respondent may seek to argue that certain facts were in dispute. 3.0 the EAT stated in Radia v Jefferies International Ltd EA T 0007/18 that: “the mere fact that there were factual disputes, which could only be resolved by hearing evidence, and fact finding, arising from the final Hearing, does not necessarily mean that the Tribunal cannot properly conclude that the claim had no reasonable prospects from the outset, nor that it cannot conclude that 5 the complainant could or should have appreciated this from the outset. That still depends on what they knew, or ought to have known, were the true facts, and what view they could reasonably have taken of the prospects of the claims, in light of those facts. ” [para 69]. 21 . In assessing whether the claim had no reasonable prospects of success, the io T ribunal was not to consider whether the party genuinely or sincerely believed that the claim was well-founded, but whether they had reasonable grounds for believing that. Put another way, did the claim, objectively, have reasonable prospects of success: Scott v Inland Revenue Commissioners [2004] ICT 1410, para 46. The respondent may argue that it considered it had reasonable grounds for its belief on prospects, but it is submitted this simply cannot be supported by assessment of the facts.[22]The respondent knew, or ought to have known, what the true facts in this case were from the outset, which is supported by the parts of the Judgment relied upon above. There was no new evidence produced by either party relating to 20 these two defences that would not have been available to the respondent from prior to the commencement of proceedings, or at the latest by the Preliminary Hearing on disability status on 10-11 March 2021, as to change the position of the respondent’s defence as to prospects of success.[23]Addressing both the second and third questions posed by Opalkova, it was submitted that the respondent at least ought to have known that the defences had no reasonable prospects of success, if it did not so already, no later than 1 1 March 2021 . The respondent is a large organisation, with a HR department and was legally represented by an experienced solicitor throughout the Tribunal proceedings; relying upon Opalkova at para 26, where the EAT stated: “In considering whether the respondent should have known that a response had no reasonable prospects of success, a respondent is likely to be assessed more rigorously if legally represented’’. There can be no doubt that the respondent would have known that, at the start of proceedings, its acts or omissions had resulted in liability in relation to the respective two heads of claim and, therefore, it would have no reasonable prospects of defending them. 5 In respect of the Rule 76(1)(a) application -[24]The claimant refers to Moshweu v Elysium Healthcare No 2 Ltd. ET 3401976/2015, a case involving insufficient investigation by a respondent during internal procedures, in which the Tribunal found that - ‘‘Throughout the matter, the Respondent had advice from well-known io Solicitors and had any sensible enquiry or investigation been made into the circumstances of the Claimant's dismissal and had an honest view been taken about the prospects of the Claimant's success, the Respondent and those advising it would inevitably have been led to the conclusion that the contents of the response had no reasonable prospect of success. The result is that the 1 5 Claimant has been put to substantial costs in circumstances where a proper assessment of the merits of the case ought to have made that wholly unnecessary. It is correct therefore to make a costs order in favour of the Claimant in relation to the conduct of the case, up to and including the full merits hearing. It should have been obvious to the Respondent at a very early 20 - stage that its response had no reasonable prospect of success. ” [para 1 8][25]Albeit the factual circumstances of the complaint were different from Moshweu, there were similarities in the conduct relied upon, as well as the analysis and conclusion of the Tribunal, for the Rule 76(1 )(a) and 76(1 )(b) applications that warranted there an award of expenses up to and including 25 the full merits hearing. Applying the same analysis to the facts in the case would lead the Tribunal to the same outcome. Details of expenses sought[26]The respondent's actions, relied upon for both applications, resulted in additional legal costs for the claimant, including advice to the claimant, the 30 calling of additional witnesses and preparations of their statements, as well as cross-examination preparation and submissions to advance the opposed two heads of claim.[27]The chargeable time incurred in the claimant’s instruction of his representative from 29 June 2021 until the end of the final hearing was that being £30,377.16 including VAT, albeit, the claimant was only charged £23,040.20 including VAT. Considering the nature of the claims, the number of witnesses involved and the length of the hearing, this total expense was reasonably incurred.[28]The claimant had advanced four heads of claim that were dealt with at the final hearing. The defences to two of those four claims had no reasonable prospects of success. On that basis it would be proportionate and reasonable to compensate the claimant with an award of 50% of the total costs incurred in the bringing of the proceedings, namely £11,514. The respondent is a large company, with various sites across the UK, such sum is affordable and within the means of its ability to pay. Respondent’s submission[29]On behalf of the respondent Mr Newman submits that to suggest that the Respondent ought to have known that the relevant defences had no reasonable prospect of success at the outset is misguided. The Claimant (and his representative at the time) had struggled to articulate his claims at preceding Preliminary Hearings. In particular, it was intimated at one stage that the claim of a failure to make reasonable adjustments was to be withdrawn. This head of claim remained not fully pleaded in its final form until the List of Issues was finalised shortly before the Final Hearing.[30]The Claimant’s mindset as set out above was relevant when considering the Claimant’s applications. Even if the Respondent had withdrawn parts of the defence the matter would still have proceeded to a Full Hearing and evidence of all those witnesses who attended would still have been required. 31 . It was important to note the sums sought by the Claimant within his Updated Schedule of Loss - £318,207.87. It was relevant to consider the Claimant’s mindset in this regard as that was a relevant factor for the Respondent to consider when deciding whether to proceed. At no stage had the Claimant’s representative issued a cost warning to the Respondent or make an application for Strike Out.[32]The Court of Appeal has confirmed orders for costs in employment tribunals remain the exception, rather than the rule - Gee v Shell UK Ltd [2003] IRLR 82. It is a high hurdle for an applicant to overcome. See also Yerrakalva v Barnsley Metropolitan Borough Council [2011] EWCA Civ 1255; [2012] ICR 420 (3 November 2011). On the matter of the unfair constructive dismissal claim, the respondent io submits that -[33]It would be unreasonable to expect the Respondent, in light of the reasons relied upon by the Claimant for his resignation, to have reached the conclusion that its defence had no reasonable prosect of success, particularly as one of his stated reasons for resigning had been disability discrimination, which he had maintained throughout the entire proceedings. Considering the Tribunal’s findings, which upheld this aspect of the Respondent’s defence, it cannot sensibly be said that the Respondent ought reasonably to have known it had no reasonable prospect of success.[34]The Claimant asserts that the Respondent was repeatedly alerted to 20 procedural issues by the Claimant and relies upon the alleged bias of Jemma , Deans. Whilst recognising the Tribunal’s findings in respect of the Respondent’s investigations, several of the Respondent’s witnesses did give consideration to this issue such that it was reasonable to proceed on the basis that Jemma Deans’ relationship with “A” was considered to some extent.[35]The Claimant highlights the Tribunal’s findings in respect of addressing alleged bias of Jemma Deans deficiencies in statements not being taken, deficiencies in the investigation, and the Claimant’s fears about A’s conduct and his safety.[36]The Respondent recognises the Tribunal’s findings on these matters but contends that when considered in the context of the Claimant’s claim of constructive unfair dismissal (noting as above that it included elements of alleged disability discrimination being relied upon by the Claimant) it cannot be said that it ought reasonably to have known it had no reasonable prospect of success.[37]The Tribunal’s findings on these issues do not result in an automatic assumption that the defence had no reasonable prospect of success and the Respondent contends that notwithstanding those findings it was reasonable to proceed to a Hearing to have the entirety of the evidence considered.[38]An employer’s failure to carry out an investigation in a manner expected by a Tribunal may, as in this case, contribute to a finding of Constructive Unfair Dismissal but that does not equate to there being any basis to finding that the claim had no reasonable prospect of success from the outset or that, the Respondent ought to have known that the defence had no reasonable prospect of success at some other point.[39]This was not the type of case whereby a Respondent had acted so poorly that its defence was doomed to failure. There were arguable grounds to proceed with the defence as referred to during the Hearing, including the need to test the Claimant’s own evidence.[40]The Tribunal are also reminded of its findings that, at least to an extent, the Claimant and “A” were both culpable for acts of misconduct and this must be relevant when considering whether the Respondent ought reasonably to have known the defence to this part of the claim had no reasonable prospect of Reasonable adjustments[41]The Tribunal had upheld part of the Claimant’s claim of a failure to make reasonable. adjustments (in respect of taking the Claimant off Ineos work in August 201 7, but not in relation to the provision of a chair). It cannot therefore sensibly be found that the Respondent ought reasonably to have known the Claimant’s reasonable adjustments claims had no reasonable prospect of success in circumstances where part of the Claimant’s claim was rejected by the Tribunal.[42]The Claimant appears to assert that the Respondent was in possession of the Claimant’s arthritis diagnosis since October 2016. For clarification, the Claimant did not have a diagnosis at that time. The Respondent was aware of the Claimant suffering some pain and discomfort from 2016 but initially this did not prevent him from carrying out his duties and latterly accommodations were made following further advice being received.[43]The Claimant further asserts that the Respondent continued to deny it had knowledge of the disability or any disadvantage. This should be considered in the context of the Respondent's understanding that the Claimant was able to continue working on the Ineos contract to some extent when assessing whether the Respondent ought reasonably to have known the Claimant’s reasonable adjustments claims had no reasonable prospect of success. It was also relevant to consider that disadvantage was relevant to the part of the reasonable adjustments claim that was rejected by the Tribunal.[44]The Respondent contends that whilst it is of course accepted that the Respondent did not remove the Claimant entirely from Ineos duties, they were reduced from August 2017 and latterly he undertook no Ineos work. Whilst the T ribunal found thatthe Claimant should have been formally removed from the Ineos work, the Respondent understood this to have happened on a practical basis. It was reasonable to have this issue considered at a Hearing. This is relevant when considering whether the Respondent ought reasonably to have known this part of the defence had no reasonable prospect of[45]Knowledge of the Claimant’s disability does not automatically result in the conclusion that the Claimant’s reasonable adjustments claims would have no reasonable prospect of success. The conclusions on knowledge are the first stage. The Tribunal must also consider the Claimant’s application in respect of disadvantage, and also what adjustments were or were not reasonable. It was reasonable for this issue to be considered at the Hearing. Approach[46]The question of whether the Respondent ought, objectively analysed, to have known when submitting the defence whether it had no reasonable prospect of success must be considered in the context of the Claimant’s pleaded case, which was confused at best. This appears to have been accepted by the Tribunal and by the Claimant’s former representative. The Respondent submits that at no stage did circumstances change such that it ought reasonably to have known the relevant defences had no reasonable prospect of success.[47]It is correct that certain facts were in dispute and the Respondent notes the Claimant’s reliance upon Radia v Jefferies International Ltd EAT 0007/18. The. principle of Radia is not disputed but in the circumstances, it is submitted that it adds little to the required analysis under this application, especially in light of a core central dispute on the facts of the Constructive Unfair Dismissal claim (namely the reliance on there being disability discrimination at play).[48]Radia also reminds the Tribunal that it must consider how, at the earlier point when a defence is lodged, the prospects of success in a trial that was yet to take place would have looked.[49]The Tribunal must assess whether the Respondent had reasonable grounds for the belief in having prospect of success - Scott v Inland Revenue Commissioners [2004] ICT 1410, para 46. In all the circumstances of the case, notwithstanding the passages of the Judgment highlighted by the Claimant in his application, the Respondent submits that it did have reasonable grounds for the reasons referred to above.[50]As to the second and third questions set out in Opalkova the Claimant relies on the Preliminary Hearing on 1 1 March 2021 . The T ribunal are reminded that this considered disabled status and Jurisdiction (both reasonable matters for the Respondent to raise) not the entirety of the Claimant’s claims, which was not fully clarified until much later following the Preliminary Hearing in August 2021 and the provision of the final List of Issues. The Respondent did not know that the defence had no reasonable prospect of success and in all the circumstances of the case nor should it have done so. Rule 76 (1) (a) application[51]The Respondent contends that this application should be rejected. The Respondent relies upon its submissions in respect of the Claimant’s application under Rule 76(1 )(b) in respect of the assertion that the defences had no reasonable prospect of success.[52]The Tribunal are reminded that according to the EAT in Dyer v Secretary of State for Employment EAT 183/83 (20 August 1983), “unreasonable” has io its ordinary English meaning and is not to be interpreted as if it means something similar to “vexatious”.[53]Moshweu v Elysium Healthcare No2 Ltd ET3401 976/201 5 is not binding and not sufficiently similar to present facts to assist the Tribunal, especially given that part of the Claimant’s application under Rule 76(1 )(a) relates to the reasonable adjustments claims.[54]The Claimant provides no further basis as to why it is alleged that the Respondent’s conduct was unreasonable beyond cross-referencing to his Rule 76(1 )(b) claim without further specific submissions as to unreasonableness.[55]There has been no finding of dishonesty made against any of the Respondent’s witnesses and no finding of evidence being fabricated which might support an application for costs - loan v Darcy Lou Limited ET/ 240001/15. Even in cases where there has been dishonesty this will not necessarily be sufficient to found an award of costs and costs should not 25 automatically be awarded simply because a party has knowingly given false evidence, reinforcing the submission that it is a high hurdle to overcome - HCA International Ltd v May-Bheemul EAT 0477/10 (23 March 2011), paragraph 40 and Kapoor v Governing Body of Barnhill Community High School EAT 0352/13 (12 December 2013). Amount of expenses claimed -[56]The Table of Invoices produced by the Claimant is not in dispute, although the respondent disputes that it should pay the courier fee sought in the event an award is made.[57]The Respondent notes that the Claimant’s approach to seeking costs incurred in the relevant period is to adopt the approach of reducing by 50% the total amount charged to the Claimant. This approach takes no account of the fact that the Respondent successfully defended part of the Claimant’s reasonable adjustments claim and that there were key allegations in support of the Constructive Unfair Dismissal claim, as referred to above, which were not upheld.[58]The “Chargeable Time 29.06.21 to 04.03.22” document does not provide sufficient detail to enable further analysis of the actual time spent on each disputed head of claim. Based on the information available, it cannot be said that 50% of the time spent on the matter related to the two heads of claim relied upon by the Claimant (which by way of reminder were not wholly successful in any event as set out above).[59]A significant amount of the time incurred appears to be in respect of general case management/preparation rather than specific to the relevant heads of claim. There are certain entries which simply state “Amalgamated Transactional Work” which provide no explanation as relevance or otherwise.[60]If the Tribunal were minded to grant the Claimant’s application, the sums claimed by the Claimant are unreasonable. The Claimant does not advance an argument that the Hearing would have been reduced in length and the Respondent contends that all of the witnesses cited by the Claimant would still to varying degrees have been required as noted above. Accordingly, if an award is made, it should be for a nominal sum only. Discussion and decision 61 . The Tribunal firstly reminded itself of the issues to be determined, as set out above. It also reminded itself that while the claimant succeeded in his claims for unfair constructive dismissal and disability discrimination in relation to the respondent’s failure to make reasonable adjustments, it failed in relation to his claims in terms of sections 13 and 15 of the Equality Act. However, an award of costs is only sought in respect of those parts of the claim that were successful. The constructive dismissal claim[62]So far as this claim is concerned the Tribunal found that the respondent had failed to provide a safe working environment for the claimant, leaving him exposed to bullying, harassment and death threats from a colleague; that it io failed to deal with his grievance against his manager, Miss Deans; that it failed to conclude a grievance against his colleague A; and that it failed to facilitate his return to work following a period of sickness absence.[63]An uplift of 25% was applied to the claimant’s compensatory award for unfair dismissal in circumstances where it found that while the respondent had significant resources available to it, including a dedicated HR department, it failed to conduct its grievance procedure in a reasonable manner, in particular in relation to communication with the claimant in respect to his grievance about the 1 6 July 2018 incident and its failure to identify and interview relevant witnesses in connection with his 15 May 2019 grievance. These are matters relied upon by the claimant in his application that the respondent’s response (or at least part of it) had no reasonable prospects of success.[64]In all those respects, the Tribunal had no doubt that the respondent had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between it and the claimant. It therefore had no reasonable prospect of successfully defending the claimant’s constructive dismissal claim.[65]The Tribunal also has no doubt that the facts upon which it made those findings would have been known to the respondent during the claimant’s employment. Furthermore, and significantly for these present purposes, the respondent would have been aware at the point of the claimant’s resignation and therefore also when it submitted its response, of his reasons for resigning. Those reasons were clearly articulated by him in his resignation letter as being related to its failures to address his grievances and his concerns about his safety in the workplace, which ultimately led to the finding that he was unfairly constructively dismissed.[66]The Tribunal agrees with the claimant’s submission that it is significant that no additional documentation relevant to the constructive dismissal claim was presented by the respondent during the proceedings. All the relevant documentation as well as the evidence contained in the witness statements presented by the respondent and upon which the Tribunal formed its view were available to the respondent during the claimant’s employment and therefore also when it submitted its response.[67]In the circumstances, on an objective view of the evidence the respondent’s defence to this claim had no reasonable prospects of success when its response was submitted. The reasonable adjustments claim[68]In relation to the reasonable adjustments claim, the Tribunal also found that the respondent knew or ought to have known by August 2017 that the claimant was likely to be placed at a disadvantage, because of his disability in relation to work on the Ineos contract and that it failed to take steps that would have removed his disadvantage by enabling him to work without pain and discomfort in circumstances where other work was available that he could have done at the time, which would not have been disruptive to the respondent’s business. On an objective view of the evidence the respondent’s defence to this claim had no reasonable prospects of success.[69]Once again, in respect of this head of claim, no additional documentation was presented by the respondent during the events of the proceedings. All of the documentation as well as the evidence contained in the witness statements presented by the respondent and upon which the Tribunal formed its view were available to the respondent at all times during the claimant’s employment and therefore when it submitted its response.[70]In the circumstances, on an objective view of the evidence the respondent’s defence to this claim had no reasonable prospects of success, when its response was submitted. Should the respondent have known that its defences to the two’ successful claims 5 had no reasonable prospects of success?[71]Since the presentation of the claim, the respondent had advice from experienced solicitors. The Tribunal concludes that if proper enquiry had been made into the circumstances of the claimant’s dismissal and its reasonable adjustments claim when its response was submitted, and if the io respondent had accepted an honest view about the prospects of the claimant’s claim, the respondent and those advising it would inevitably have been led to the conclusion that its response had no reasonable prospects of Did the respondent act unreasonably by continuing to defend the claims that were successful?[72]Yet the respondent continued with its defence to ail parts of the claim when it• should have been clear to them, had they accepted the reality of the situation, that they had no reasonable prospects of defending either the reasonable adjustments or the unfair constructive dismissal claim.[73]In those circumstances its decision to continue to defend those parts of the claim was unreasonable. As a result, the claimant was put to substantial costs in circumstances where a proper assessment of the merits of its case would have made that unnecessary.[74]It is correct therefore to make a costs order in relation to the respondent’s conduct of the case up to and including the merits hearing in circumstances where, in terms of Rule 76(1 )(b) it should have been obvious that the respondent knew or ought reasonably to have known when proceedings were raised that its response had no reasonable prospects of success and, in terms of Rule 76(1 )(a) that in continuing with its defence, it acted unreasonably. The amount of costs to be awarded[75]The claimant has presented copy invoices, which confirm that the claimant was charged £23,040.20 including VAT for chargeable time. He has submitted that having advanced four heads of claim up to and at the final hearing and having been successful in two, where the defences. to those claims had no reasonable prospects of success, it would be proportionate and reasonable to compensate him with an award of 50% of the total costs incurred in the bringing of the proceedings. The claimant also submits that the respondent has the means and ability to pay that sum.[76]The Respondent’s dispute with the sum sought by the claimant is not that the overall £23,040.20 including VAT of chargeable time is excessive, save for an objection to a courier fee. Rather, it does not accept, absent a more detailed breakdown of the work carried out, that 50% of that fee is properly attributable to the two claims in question.[77]Having considered these competing submissions, the Tribunal was satisfied that the claims in which the claimant* was successful would have taken up most of the preparation time. They plainly dominated the final hearing time, the majority of which was taken up by evidence and submissions about them and most of the documentary evidence the Tribunal was referred to was relevant to those claims.[78]In the circumstances, the Tribunal finds that the claimant’s approach to his valuation is reasonable and proportionate.[79]In terms of Rule 78(1) it therefore makes an award in the sum of £11,514, which the respondent is ordered to pay to the claimant.