Mr W J O’Rourke v Morris Leslie Plant Hire Ltd: 6000623/2024

EMPLOYMENT TRIBUNALS

Case No 6000623/2024

Between

Mr W J O’RourkeClaimant

Morris Leslie Plant Hire LtdRespondent

Before

Employment Judge Rayner

In person for claimant

Mr S John (instructed by Counsel) for respondent

Date 8 September 2025

JUDGMENT

[1]The Claimants complaint that he was discriminated against for a reason relating to his disability, by dismissing him, is well founded and succeeds.

[2]The Claimant’s claim that he was unfairly dismissed, is well founded and succeeds.

[3]The Claimant’s claim that he was directly discriminated against on grounds of disability Is not well founded and is dismissed.

[4]The Claimants claim that the respondent failed to make a reasonable adjust for him is not well founded and is dismissed.

REASONS

[1]The Claimant was employed by the Respondent or the Respondent’s predecessor between 16 June 2010 and 17 November 2023 as an HGV driver. He was based at the Respondent’s Southampton Depot. He was made redundant on the 17 November 2023.

[2]The Claimant alleges that he was unfairly dismissed and was discriminated against on grounds of disability, in the course of selecting him for redundancy.

[3]He contacted ACAS on 22 February 2024 and issued proceedings the same day. A time point therefore arose and at a preliminary hearing before Employment Judge Yallop it was determined that it had not been reasonably practicable for the Claimant to file his claim within time, and that it had been filed within a reasonable time thereafter. The Claimant relies upon his dismissal as the last act in a continuous course of discrimination or, in the alternative, asserts that it would be just and equitable to extend time in respect of any act of disability discrimination found proven.

[4]Following a case management hearing before Employment Judge Livesey the issues for determination in the case were recorded as follows: 4.1. Was the Claimant dismissed? 4.2. What was the reason for dismissal? The Respondent asserts that it was a reason related to redundancy, which is a potentially fair reason for dismissal under s. 98 (2) of the Employment Rights Act 1996. 4.3. Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant. The Tribunal will usually decide, in particular, whether: 4.3.1. The Respondent adequately warned and consulted the Claimant; this aspect Is not in issue; 4.3.2. The R e s p o n d e n t a d o p t e d a reasonable selection decision, including its approach to a selection pool; the Claimant does not criticise the drawing of the pool but does allege that the information used to score him against the matrix was wrong in that information from an appraisal had been incorrect and resulted in a significant lower score than ought otherwise to have been achieved; 4.3.3. The Respondent took reasonable steps to find the Claimant suitable alternative employment; the Claimant alleges that he would have been capable of working in the office, on the hire desk and/or as a fitter, but no thought was given to any of those options. 4.4. Was the decision to dismiss a fair sanction? That is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts? 4.5. Did the Respondent adopt a fair procedure? The Claimant does not challenge the fairness in of itself 4.6. If it did not use a fair procedure and/or fair and accurate information, would the Claimant have been fairly dismissed in any event and or to what extent and when?

[5]Disability 5.1. Did the Claimant have a disability as defined in sections 6 of the Equality Act 2010 at the time of the events the Claimant is about? At a preliminary hearing the tribunal has determined that the Claimant was disabled by reason of autism at the material times.

[6]Direct disability discrimination Equality Act 2010 section 13 6.1. Did the Respondent discriminate against the Claimant by dismissing him? 6.2. Was that less favourable treatment? The tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the Claimant the tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant says he was treated worse than a hypothetical non disabled comparator. 6.3. If so was it because of disability? 6.4. Is the Respondent able to prove a reason for the treatment, which is a non discriminatory reason not connected to disability?

[7]Discrimination arising from disability Equality Act 2010 section 15 7.1. Did the Respondent treat the Claimant unfavourably by dismissing him? 7.2. Did the following things arise inconsequence of the Claimant’s disability? The Claimant’s case is that at least two scores in the redundancy scoring matrix were detrimentally affected by his disability, the attention to detail and/or my performance scores 7.3. was the unfavourable treatment because of any of those things? 7.4. what is the treatment a proportionate means of achieving a legitimate aim? The Respondent relies upon a legitimate aim set out in its amended response of operating the business with economic efficiency i.e. reducing the headcount to ensure that the Respondent’s costs did not exceed its revenue and/or were a reasonable proportion of its revenue by undertaking an equitable process to select employees for redundancy across the Respondent company whilst retaining the most skilled and efficiently performing employees. 7.5. The Respondent says that the means adopted were proportionate in light of the adjustments made to the process, and the Claimant’s actions in preventing the Respondent from seeking an occupational health report.

[8]Reasonable adjustments - Equality Act 2010 subsection 20 and 21 8.1. The Respondent does not seek to advance a defence of lack of knowledge of the Claimant’s disability, but it does assert that it did not know or could not reasonably have been expected to have known that he was likely to be placed at the disadvantage contended for. 8.2. A PCP is a provision criterion or practise. Did the Respondent have the PCP of using its scoring matrix? 8.3. Did the PCP put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability in that his disability adversely affected his scores against two criteria? (see paragraph 7.2 above). 8.4. What steps or adjustments could have been taken to avoid the disadvantage? The Claimant suggests adjusting and or ameliorating the effects of those criteria 8.5. Was it reasonable for the Respondent to have to take those steps and when? 8.6. Did the Respondent fail to take those steps?

[9]Remedy 9.1. Unfair dismissal 9.2. The Claimant does not wish to be reinstated or re engaged. 9.3. What basic award is payable to the Claimant, if any? 9.4. 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? 9.5. If there is a compensatory award, how much should it be? The Tribunal will decide: 9.6. What financial losses have the dismissal caused to the Claimant? 9.7. Has the Claimant taken reasonable steps to replace their lost earnings for example by looking for another job? 9.8. If not what period of loss should the Claimant be compensated? 9.9. 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? 9.10. If so, should the Claimant’s compensation be reduced? By how much? 9.11. Does the statutory cap of 52 weeks pay or £105,707.00 apply?

[10]Discrimination 10.1. Should the tribunal make a recommendation that the Respondent takes steps to reduce any adverse effect on the Claimant what should it recommend? 10.2. What financial losses has the discrimination caused the Claimant? 10.3. Has the Claimant taken reasonable steps to replace lost earnings for example by looking for another job? 10.4. If not what period of loss should the Claimant be compensated for? 10.5. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 10.6. Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that? 10.7. Is there a chance that the Claimant's employment would have ended in any event? Should that compensation be reduced as a result? 10.8. Should interest be awarded? How much?

The hearing

[11]The case was heard over 4 days. The Claimant gave evidence on his own behalf and the tribunal heard evidence on behalf of the Respondent from 11.1. Leanne Shannon, head of human resources; 11.2. Ian Bishop, who was the branch manager of Southampton Depot where the Claimant worked and who was responsible for carrying out the redundancy selection exercise with Mr Mills. 11.3. Mr Matthew Mills a regional director with day-to-day responsibility for managing eight of the Respondent’s depot's across the South of the country; 11.4. Andrew Spencer who is a sales director for the plant hire sales division and who conducted the Claimant’s appeal against dismissal.

[12]We were provided with written witness statements from all witnesses as well as a bundle of documents of 563 pages.

[13]At the end of the hearing the tribunal discussed promulgation of the judgement with the parties and Mr O'Rourke indicated that he would find it helpful to receive a written judgement and the Judge and panel therefore decided to reserve judgement.

Findings of fact

[1]The Claimant worked as an HGV driver for the Respondent. He had transferred to their employment as a result of the transfer of an undertaking in about 2013.

[2]The Respondent company offers plant hire services across the United Kingdom. The Claimant was responsible for driving the plant to various destinations.

[3]Following the transfer of the undertaking the Respondent says that new procedures were introduced over the course of time.

[4]One of the new procedures was a requirement for drivers to take a photograph of the fuel gauge of the plant being hired out, both at the point of hire and at the point of the vehicle being collected at the end of the hire period.

[5]The reason this was important, was so that the Respondent could calculate whether any compensation should be paid or alternatively whether the company was owed any additional money as a result of the fuel used by the hirer. Prior to this being introduced, the practise had been for the driver to take a written note of the fuel gauge at the beginning and end of the hire period and to provide those figures to the company.

[6]Mr O'Rourke says he was not aware of the change in procedure until he was told of it by Mr Bishop in May 2023. He continued to use the old procedure of taking a written note until then, because no one had either criticised him for it or told him that he needed to do anything differently.

[7]Mr Bishop considered that the Claimant ought to have known, because everybody else did, but we find that no one had specifically informed the Claimant that he needed to do things differently and it was for that reason that he continued to operate under the old procedure.

[8]Once Mr O'Rourke was told that he needed to follow a new procedure, he did so, on his evidence about 80% of the time, and according to Mr Bishop about 75% of the time.

[9]About 10 years before the time the tribunal was considering, an accident had occurred with a forklift and one of the large 14 tonne excavators, which lead to the serious injury of another employee. The Claimant had not been involved in the accident but witnessed it and looked after the injured man whilst waiting for an ambulance. The man was severely disabled following the accident.

[10]The accident had a significant impact on the Claimant, who was traumatised by it, and formed the view that there was a health and safety issue with the way that the 14 tonne excavators were being loaded, and secured. He did not want to drive the 14 tonne vehicles for this reason, and this was known to the company. Until early 2023 he had not been required to do so.

[11]The Respondent was satisfied that there was no issue with either the method of loading plant hire or the methods of securing it once it was loaded. They were satisfied not only that there was no health and safety issue, and that they were complying with all relevant regulatory provisions for the transport of such plant hire.

[12]The Claimant remained convinced that there was a risk and maintained up until the hearing of this case, that he would be in danger where he to be required to drive those trucks with that plant hire.

[13]We find that for him, the concern was real and genuine, in that he was entirely convinced that he was right, but we also find that he was on balance, incorrect in his belief.

[14]However, we find that until sometime in early 2023 no one had suggested to the Claimant that there was any particular difficulty in him not driving the 14 tonne excavators, and he had not been required to do so. No one had suggested to the Claimant that his refusal to drive the trucks with them on was problematic for the Respondent, or that it was an issue of conduct or potentially misconduct for him to continue to refuse to drive them. It is not suggested to us either, that prior to the redundancy consultation there was, in reality, a problem for the Respondent in the Claimant not doing this particular task.

[15]Following the transfer, the Claimant was managed by Mr Bishop. They did not have a good relationship. The Claimant felt that Mr Bishop favoured other drivers over him, and therefore treated him unfavourably on occasions, and Mr Bishop felt that the Claimant was not as effective a driver as some of the other drivers employed. This was partly because he was not as flexible, but partly because Mr Bishop considered that the Claimant did not always take the most direct route on any job and therefore tended to take longer than other drivers. The Claimant disputes this.

[16]The Claimant also had a difficult relationship with one of his colleagues, SC, who he considered to be a bully. The Claimant said this colleague would not only attempt to bully him, but that he also bullied some of the young women who worked in the office, which offended the Claimant. The Claimant found this unacceptable and was not unwilling to say so.

[17]In April 2023 the Claimant had an altercation with SC, at the end of the day. The Claimant said that he had gone to his lorry to get changed to go home and that he had been followed by SC who wanted to speak. When the Claimant asked for privacy, SC was said to have commented what's wrong do you not want me to see you naked?

[18]The Claimant said that he felt provoked and backed into a corner and said to SC words to the effective if you want to have a pop at me, then anytime, but don't have a go at little girls. He said this was a reference to a comment that had been made some weeks previously by SC having a go at one of the girls in the office. The Claimant also accepted that he swore at SC, but suggested that swearing was not uncommon in the yard.

[19]SC understood that the Claimant was threatening to fight him and raised an informal grievance against the Claimant. He asked if the matter could be dealt with informally with the Claimant.

[20]The Claimant was therefore spoken to by his manager. The tribunal is referred to a note of this meeting, which took place on the 3 May 2023, and is described as an informal discussion with Mr O'Rourke following a grievance being raised by SC on April 17, 2023 in the yard.

[21]The Claimant was not told that he was being invited to any form of disciplinary meeting and we find that this was not a disciplinary meeting. He was not told he could have somebody accompany him and it was not suggested to him that there would be any form of disciplinary sanction as a result. Instead, there was a discussion about the incident, and the Claimant explained the circumstances and said that he felt that he had been provoked and also said that he felt that he was being bullied.

[22]The Respondent says that following that meeting the Claimant ought to have expected some form of disciplinary sanction. The Claimant disagrees. We agree with the Claimant that it was not reasonable in the circumstances, given the type of meeting, for the Claimant to have any expectation that he would be subject to any form of disciplinary sanction.

[23]In any event, no disciplinary sanction was notified to the Claimant. We find that the Respondent’s usual practise, where a disciplinary sanction was issued and in particular where a record of conversation was issued, which would stay on the employees file for 12 months, was to send a copy of the record of conversation to the employee at their home address. This did not happen.

[24]Instead, the Respondent told the tribunal that a decision was taken not to send it to the Claimant at this point because he had started a period of sickness absence. The record of conversation is dated the 26 May 2023. The Claimant started a period of sickness absence on 22 May 2023. The Respondent says that the record of conversation was instead kept in the office for the Claimant to be given to him on his return to work. We have not heard from the director who carried out the investigation , although the note taken at hearing which we have read, makes no reference to any record of conversation being issued.

[25]We find the Claimant was not notified of the disciplinary sanction at any time.

[26]In the spring of 2023, and before the incident in the yard, the Respondent introduced a new process of performance appraisal.

[27]Prior to this the Respondent accepts that appraisal and performance management had been informal with no real systems in place across the business. There were no regular, formal appraisals.

[28]The company's aim was to have a system to review people's performance; set goals and ultimately link performance to pay. The system was introduced across the company.

[29]This was the first time Mr Bishop carried out the meetings with his staff and he accepts that because he was very busy on 2 May 2023, with a whole variety of issues, that he did not manage to get to the Claimant’s meeting until late in the day.

[30]The Claimant says that he felt ambushed at the end of the day and that Mr Bishop always left him to last with anything, and always tried to speak to him as he was getting ready to finish for the day. He felt that he had been left to last as usual.

[31]The meeting took place, but there was not enough time to finish it, and Mr Bishop was going on annual leave the following day. It was a rushed meeting. Mr Bishop raised a number of matters with the Claimant’s performance. The Claimant had had no time to prepare any responses.

[32]Mr Bishop suggested that the areas of concern werea. a lack of photographs of fleet plates for delivery and collection;

b. that the Claimant was not taking enough fuel gauge photographs, causing the issuing of credit notes;

c. that the Claimant remained unwilling to deliver the 14 tonne excavators;

d. that the Claimant was not always taking the most effective routes;

e. that the Claimant did not take sufficient photographs of damage to hire equipment.

[33]Mr Bishop did not give specific examples to the Claimant of occasions when he had failed to take photographs, but there was a discussion about routes followed and whether or not they were the quickest routes.

[34]Mr Bishop told the tribunal that one of the key issues for him was the Claimant's unwillingness to deliver the 14 tonne excavators. He knew that there had been an accident a number of years previously and before he himself had started work at the company, where a forklift truck pinned a colleague against a 14 tonne excavator and crushed his legs. He also knew that it was due to this injury that the Claimant felt that he was unable to deliver the 14 tonne excavators.

[35]Mr Bishop considered that this did not make any sense because it was the forklift truck that had caused the incident and not the excavator. Mr Bishop felt that this was a key part of the Claimant’s role, that he had the required licences to do the job but that he was refusing to do it. This was the first time that Mr Bishop had raised this as a potential problem with the Claimant. It was not unreasonable for Mr Bishop to raise this, that this was a change in an informal arrangement, and we all agree that it was harsh to mark him down on his appraisal, which we were told was looking back over work done over previous months. He had not failed to do something previously, as he had not been asked to do the task. We accept however, that he was refusing to do the task going forward.

[36]A further meeting took place on the 19 May 2023 to complete the discussion.

[37]We have been referred to the notes of that meeting.

[38]We find that the meeting was ill tempered on both sides. We find that the Claimant felt ambushed with the criticisms which he considered were wholly unfair.

[39]Mr Bishop not unreasonably wanted the Claimant to start dealing with 14 Tonne excavators going forward and there was some discussion about why the Claimant was unwilling to do the task.

[40]The Claimant considered that he had legitimate reasons for not dealing with the 14 tonne excavators and that there had been an informal acceptance that he did not need to drive them.

[41]He considered that contrary to what Mr Bishop was saying, he did drive the most efficient routes and tried to explain both in that meeting and in subsequent meetings, and to the tribunal, that some of the routes being suggested by Mr Bishop would have involved him driving an HGV off a motorway and over an embankment. He suggested that another route suggested by Mr Bishop would have involved the Claimant driving down extremely narrow lanes, with no turning spaces, making it impractical for the size lorry that he was driving.

[42]In respect of the photographs of fuel gauges he stated that he had simply never been told that this was what was required. He had been using a different method. However, having been told that he must change the way he kept his records, he told the tribunal, and we find as fact, that he did start to use the new process We find that he had shown himself able and willing to do it and that in fact he was doing it in the majority of cases. This does not mean that there was not some room for improvement.

[43]Mr Bishop found the Claimant’s wish to elaborate and argue difficult, and said that the Claimant became frustrated, interrupting him and shouting at him. Mr Bishop said that he had tracked other drivers doing the routes that he, Mr Bishop was suggesting and that they did not have the difficulties that the Claimant was suggesting.

[44]Mr Bishop also told the tribunal that the Claimant got very annoyed and defensive when discussing the 14 tonne excavators. He said the Claimant did not seem to understand that it wasn't the excavator that had caused the accident. He said the Claimant’s reaction and the way he spoke to Mr Bishop was completely unprofessional.

[45]There is a record of the meeting signed by both Mr Bishop and the Claimant. The Claimant states that he signed the note not because he agreed with what Mr Bishop was saying, but because he agreed that the meeting had taken place.

[46]The Claimant was marked down as needing improvement in the various areas identified.

[47]We find that part of the reason for marking the Claimant down, was his failure to always photograph the fuel gauges; insistence that his routes were appropriate and that Mr Bishop was wrong; his continued unwillingness to drive the 14 Tonne excavators and his persistent belief that he would be in danger if he was required to drive them, because of his belief about the way they were loaded, and his adherence to an old rule about recording fuel consumption.

[48]We also find that part of Mr Bishops frustration, which we understand, was the Claimants refusal to accept that he might be wrong, and his insistence that his views were right, even when Mr Bishop tried to explain why he might be wrong. We have no doubt that for Mr Bishop, the Claimant presented as a difficult and inflexible employee.

[49]This meeting followed the Claimant’s meeting about the altercation with SC, on the 17 April 2023.

[50]On the 22 May 2023, following the meeting with Mr Bishop, the Claimant was signed off sick with psychological trauma. He told Mr Bishop that he had not been able to sleep and was suffering with PTSD. This was a reference back to the accident that took place with the 14 tonne excavator and the forklift truck, and the Claimants concerns that he would be required to drive them.

[51]The Claimant did not return to work prior to his dismissal for redundancy but remained absent on certificated sickness absence.

[52]The Claimant’s reaction both to his manager and the discussion about the 14 tonne excavator was an extreme one, but there is no suggestion that the Claimant was not genuinely unwell and was not genuinely suffering from some form of psychological trauma.

[53]He had a series of sick notes signing him off with stress related illness and work related stress until the 31 August 2023.

[54]At that point, 3 months into his absence, which we find was also a point at which the company was aware that there was going to be a redundancy exercise, the Respondent referred the Claimant to occupational health, to see what the organisation could do to assist the Claimants return to work.

[55]The Claimant consented to an occupational health referral and attended an appointment on 15 August 2023, with a report being issued to the Claimant on the same day. The referral to occupational health specifically referenced the Claimant's concerns about the 14 tonne excavators and referred to an accident that had happened 10 years before. The referral also noted the altercation with a colleague and the Claimants performance review at which the 14 tonne excavator issue had been raised.

[56]The report identified that work with the 14 tonne excavator was a source of difficulties for the Claimant. The report noted that after the discussions about them and the suggestion that the Claimant may well be required to work with them again, he suffered affected sleep; nightmares and flashbacks. The report recommended the employer undertake a risk assessment regarding his ability to work with the 14 tonne excavators and suggested training may be required, after he had completed his talking therapies.

[57]The report also made reference to a possible future diagnosis of a neuro diverse condition and stated at that stage, a further occupational health assessment or access to a specialist neurodiversity service may be indicated.

[58]The report was provided to the Respondent on 29 August 2023 and Graham Liddiard, one of the Respondent’s human resources staff contacted the Claimant, inviting him to a meeting to discuss the report on 1 September 2023. The Claimant advised that he was medically unfit to attend the meeting and was signed off until the 2 October.

[59]The Respondent contacted the Claimant again and the Claimant sent an e-mail to Mr Liddiard on 14 September 2023 giving a full update on his health. Prior to sending the e-mail he had had a conversation on the phone with Mr Liddiard.

[60]The Claimant stated that it was an incredibly difficult e-mail for him to write. He said as follows I have been suffering from debilitating anxiety. I've been receiving excellent treatment which unfortunately leaves me anxious before appointments and completely mentally exhausted afterwards. My appointments are spread throughout the week so I just have time to recover for one before the next comes. To obtain maximum benefit from the assistance being offered to me it is necessary to be completely transparent regarding my own thoughts and behaviours. This I have found exhausting and debilitating at times.

[61]The Claimant then described having a course of CBT and working on ruminating. He said he was struggling to recognise the difference between problem solving and ruminating; that it could be unproductive as illustrated by the length of time it had taken him to compose the e-mail .

[62]He said he was being assessed for further CBT relating to mental trauma and PTSD type symptoms and that he was continuing to have assistance from Solent Mind.

[63]He went on to say in respect of the neurodiverse diagnosis as I mentioned when we spoke, it has become apparent over several years that I may have some kind of neurodiverse condition. My recent dealings with mental health professionals have helped remove the stigma for someone of my generation associated with such diagnosis. My GP has agreed to refer me for diagnosis. This diagnosis has a long waiting list of anything up to two years. It is my belief that to wait this long would be detrimental to my mental health. I have therefore contacted Tabla Psychology, a local private clinic to undergo private diagnosis. The pre assessment questionnaires that I have completed all score highly to indicate that a private diagnosis is justified. This treatment is expensive but I'm trying to think in terms of an investment in my health rather than expense. The first appointment is on 26 September followed by a further appointment on 4 October and then a further appointment after that.

[64]The Claimant made clear that the email was being sent in confidence to himself and human resources including Graham and Mark. The Claimant was not objecting to the Respondent corporately and the human resources department being informed of his impairment, but he did not want other colleagues to be informed.

[65]The Claimant emailed Mr Liddiard again on the 3 October stating that he had had his first assessment with Tabla Psychology on 4 October 2023.

[66]Whilst Mr Liddiard was waiting for an opportunity to speak to the Claimant about the occupational health report and about the diagnosis, but before that was possible, the Claimant was asked whether or not he would be able to attend a business update call with Mr Bishop on the 19 October 2023. The Claimant confirmed that he was able to and attended at that meeting, remotely.

[67]During that same call the Claimant confirmed that he had been diagnosed with autism and sent an e-mail to Mr Liddiard with his diagnosis letter. He asked for this to be kept confidential amongst human resources and directors and the Respondent confirmed that this would be done.

[68]The result was that Mr Bishop, the Claimants line manager, was not made aware that the Claimant had been diagnosed with autism until the Claimant issued proceedings in the Employment tribunal.

[69]At the business meeting the same day, Mr Bishop told the Claimant and the Claimant’s colleagues that the business was considering making redundancies and that the Claimant's role was at risk.

[70]The redundancy process was the result of a review of staff numbers across plant and hire depots on a national basis.

[71]As a result of its review the Respondent decided that it needed to make cuts to the headcount at seven of its depots. This was the decision made nationally. Human resources managers were then tasked with reviewing each of the individual depot's and identifying the relevant pools from which selection for redundancy would be made.

[72]Mrs Shannon was responsible for identifying length of service and any protected characteristics of individuals, as this might require an alternative approach or an alternative process.

[73]The Respondent does not dispute that Mrs Shannon was aware at this point that the Claimant had a protected characteristic, and this is reflected in the composite score sheet that the Respondent used on which the Claimant is identified as PC for protected characteristics. Despite being aware of the Claimant awaiting a diagnosis of Autism, they did nothing to address this in the process. There was no consideration of whether some Autism might impact on some of the scoring for example, or whether some adjustments might be needed, to ensure that he was able to take a full part in the process.

[74]Employment Judge Yallop determined at a preliminary hearing, that when the Respondent used its scoring matrix and when it dismissed the Claimant on the 17 November that the Claimant was disabled by reason of autism spectrum disorder.

[75]The Claimant had submitted his autism diagnostic report dated 5 September 2023 to the case management hearing and Employment Judge Yallop considered it highly relevant to the question of whether or not the Claimant was disabled at the material time.

[76]That report was also provided to the employment tribunal. We find that it was not provided to the Respondent whilst the Claimant was employed, and in particular it was not provide during the course of the redundancy process. It sets out a number of behavioural traits which were discussed with the Claimant and records his responses. He identified that he had a number of traits which indicated autism and of those, the following (summary of details only) are potentially relevant to the matters that this tribunal must determine:a. not seeing the point of view of others especially when he feels that he is right;

b. a propensity for excessive interest in certain activities and a tendency to be a perfectionist in respect of them;

c. struggling to change a topic of conversation;

d. being pedantic in speaking;

e. highly motivated by social justice;

f. tendency not to recognise if a listener is bored or uninterested

g. trouble with social interactions in various situations which can then lead to additional stress.

[77]On the 19 October 2023, following the provision of his diagnostic letter to Mr Liddiard the Claimant provided his consent for a further referral to occupational health. The exchanges between the Claimant and Mr Liddiard were known to Mrs Shannon who congratulated Mr Liddiard on the provision of welfare support to the Claimant.

[78]At this point the Respondent knew that the Claimant had an impairment of autism spectrum disorder and knew that the cause of his sickness absence was, in part at least, his reaction to the suggestion that he might be required to drive 14 tonne excavators at some point in the future.

[79]The OH report which had been provided did not suggest that the Claimants unwillingness to drive the 14 Tonne excavators was anything to do with his autism, although it is implicit that there was a concern that his inability to get beyond his fixed views about the cause of the accident may well be.

[80]The employer also knew that the Claimant had been involved in an altercation in which he felt he had been treated unfairly and in which he felt his privacy had been abused.

[81]Since a further referral to occupational health had been organised, it seems reasonable to consider that the employer also thought it would be helpful to gain some more information about the Claimant's recent diagnosis and its impact upon his ability to work.

[82]However at this point, we find that the Respondent did not know and could not reasonably have been expected to know how the claimant was impacted by autism.

[83]As is evident from the chronology, this coincided with the Respondent announcing a redundancy consultation process to its workforce.

[84]At the Southampton depot the Respondent identified the need to make one redundancy from the three HGV drivers. None of the three drivers had any suggestions for avoiding redundancy and therefore a selection process took place.

[85]Mrs Shannon drew up a selection matrix. As a starting point she used a matrix that had been used during a previous redundancy exercise, and considered that since the company had introduced the new staff management system called my performance that staff scores from that process should form one of the additional criteria. This was approved by the plant hire operations director at the time.

[86]The three drivers at Southampton were to be scored against the criteria provided, by Mr Bishop and Mr Matthew Mills.

[87]A meeting between the two men took place on the 27 October 2023. The initial scoring was carried out by Mr Bishop, on the basis that he knew the individuals best, and that Mr Mills then acted as a second pair of eyes. Mr Mills did not discuss the allocation of scores or determine the method by which scores for individuals were to be allocated, and although he said that Mr Bishop explained his rationale behind each score, we have seen no evidence to support this. There are no notes from that meeting and Mr Mills was not able to explain the rationale to the Claimant when he met him in his subsequent consultation meeting.

[88]Mr Mills spoke to all his managers on a regular basis and they updated him on how various drivers were performing. He was aware that Mr Bishop considered that the Claimant's performance was not as good as the performance of the other two drivers at Southampton.

[89]We find that in practise Mr Mills accepted the scoring Mr Bishop gave the Claimant because Mr Bishop had told him on many occasions during their regular conversations that the Claimant was not performing as Mr Bishop expected. Mr Mills did not see objective evidence of the Claimant failing to do certain tasks when approving the scores allocated but he trusted Mr Bishop, who would have had access to the company's computer logs and daily records of things such as credit notes, Taco logs and routes followed, to know the drivers and their abilities and therefore approved and agreed the scoring proposed by him.

[90]As a result of that exercise the Claimant scored 25 points. His colleagues scored 30 and 42 respectively.

[91]The tribunal have been referred to the score sheets and the criteria for allocating scores.

[92]The first category is that of the drivers licence classification. The Claimant scored five and both his colleagues scored a 10. The Claimant argued that he too should have scored 10 because he had obtained his Class 1 driver licence by the time the scoring was carried out.

[93]Mr O'Rourke had done the driving test whilst he was absent on sick leave and told us that this was part of the recommended treatment and part of building his confidence up. The Respondent was not aware of this at the time and the Claimant did not inform the Respondent that he had obtained the Class 1 licence either at the time he obtained it or during the course of any of the subsequent discussions.

[94]Mr O'Rourke was told the basis on which he had been scored in the second meeting with Mr Liddiard and Mr Mills.

[95]The Claimant is technically right that he did hold the same licence as the two other colleagues at the time, but the Respondent did not know this. This was the reason he was not allocated the higher score.

[96]The Claimant suggested that the Respondent should have checked online to see what licence he held. Had the Respondent checked the nationally held records they would have been able to see that the Claimant did, at that point hold the same licence. It is arguable that in those circumstances he would have been awarded the higher score.

[97]However, the Respondent had no reason to check on line. They had a record of the licences the drivers held, which affected the types of vehicles they w could drive. At the point of scoring him, they had no reason to think other than that they were scoring him correctly and the matter was not raised with the Respondent at the relevant meetings. This was the result of an oversight both by the Respondent in failing to check central records but also of the Claimant who had obtained a new classification on his licence whilst absent on sick leave and failed to inform his employer.

[98]The second category the clamant was scored against was additional qualifications and none of the drivers scored at all. This was because there was no requirement in the jobs they were doing for any additional qualification and it was therefore considered irrelevant.

[99]The third category was attention to detail/ following procedures. On the score sheet two examples of the type of thing to be considered are given. One is Taco download/ on off time, and the second is tablet use etc. The only other information is in the scoring guidance, which refers to technical skills.

[100]The guidance suggested that the scores could be 0 for below expectation 2 for meets expectation 5 for above expectation and 10 for exceeds expectations. The Claimant scored a 2 in respect of this category and both other drivers scored 10.

[101]The Respondent said that everybody achieved well on Taco download/ on/ off time and therefore it was disregarded. Instead, Mr Bishop looked at matters where there was a difference between the drivers.

[102]We understood from Mr Bishop that an area of particular concern was the Claimant’s occasional failure to take photographs of the fuel gauges. Mr Bishop said that he had told the Claimant in February 2023 that he needed to do this. Mr Bishop accepted that the Claimant had improved once he had been told, but said that he still failed on occasions.

[103]The 4th criteria was based on the appraisal system my performance. The Claimant and one of his colleagues both scored 0 and the third colleague scored 10. This scoring was based on the guidance in the matrix, which only provided for two scores of 0, for needs improvement and a 10 for meets expectations.

[104]Mr Bishop said that he had raised issues about attention to detail in the Claimants 1-2-1 in May 2023. One issue was about the Claimant taking photographs of the fleet numbers and fuel gauges. He said the Claimant was inconsistent, and that he had been spoken to on several occasions. He said that the Claimant did take photos, but not always of what was needed. He said that consequently the Claimant was marked down in the category for attention to detail in the selection matrix, and was also a factor within the my performance review section. ( see paragraph 35 WS).

[105]The scoring overall was heavily weighted in favour of the my performance score. On this score alone an individual would either be likely to top the ranking or alternatively, in the Claimant’s case, to come bottom of the ranking. The Claimant was only 5 marks different from his next colleague and only 7 marks different from the highest scoring colleague.

[106]The My performance criteria rested on the score allocated by Mr Bishop himself as part of the appraisal system. The Claimant had disagreed forcefully with the assessments made by Mr Bishop of his abilities during the course of the process, but we find Mr Bishop had allocated marks fairly, having considered the criteria and how the drivers performed against specific aspects of the work done. We fin that he used the same criteria for all three drivers, and assessed them all on the basis of his knowledge of the work they did.

[107]Within the scoring matrix, as applied by Mr Bishop, there was a degree of overlap between the criteria of attention to detail scored and my performance criteria.

[108]The Respondent said that the difference was that the my performance criteria had assessed the Claimant’s abilities and the abilities of others up until May 2023 and was essentially a backward looking assessment whereas the assessment of attention to detail, focused on looking forward.

[109]Whilst this may have been the intention, we find that Mr Bishop did in fact, use the same information in two categories.

[110]What this meant in practise was that Mr Bishop's view of the performance, for example in respect of routes followed and regularity of recording fuel gauge, was reflected in both scores, unless there had been some change or improvement from the date of the my performance assessment and the date when the redundancy scoring exercise was carried out.

[111]The Claimant had been absent on sick leave throughout the period and therefore had had no opportunity to demonstrate any improvement or change. In his case, we find that Mr Bishop scored the Claimant on his opinion of the Claimant prior to sick leave. He assessed the same thing twice, and that the Claimant was marked down twice for the same thing. However, the same process was used for each driver. This means that a driver who was doing well, would benefit twice.

[112]In scoring the Claimant for My Performance, Mr Bishop had taken a range of things into account. The Claimant has not given any evidence in chief that he thought any of those things were things that either arose from his disability, or that he was placed at a substantial disadvantage as a disabled person, as a result of them being used.

[113]He was asked in cross examination about fuel gauges and , and whether him being criticised of not taking the photographs was any thig to do with his autism. He accepted that it was not, and that it was just the result of his ignorance.

[114]Again , his main criticism of the Respondent is that they used a scoring system which allowed Mr Bishop to treat him unfairly.

[115]The Respondent says that because the Claimant had been absent on sick leave, his score was adjusted, to 2, which was meets expectations, rather than 0, for below expectation. This took into account that he had not had any opportunity to improve. This does not remedy the double counting.

[116]The Claimant argued that he should have scored higher and been either above or exceeds expectations on technical skills because he said his attention to detail on the full range of matters was very good. We accept that he had areas of strength, but accept that Mr Bishop focussed on area where there were differences between the drivers.

[117]The Claimant was asked , during cross examination , whether or not he thought that the difference in opinion over the routes taken, which was one of the factors that influenced the my performance score, was anything to do with his s autism, or whether it was just a difference of opinion.

[118]The Claimant stated that it was nothing to do with his autism. He considered that the issue was that he was being marked unfairly, because Mr Bishop would not accept what he was saying. The Claimant’s main concern, reflected in his witness statement , was that the process of scoring him was unfair, because he believed Mr Bishop to be unfair, and biased against him.

[119]The next criteria was absence, and was based on the Bradford score system. All three lorry drivers scored the same 10 points.

[120]Since the Claimant had been absent since May 2023, his Bradford score would have been lower but for an adjustment made for him by the Respondent, specifically recognising the cause of his absence.

[121]The next criteria was length of service for which the Claimant scored ten and his colleagues scored two and five.

[122]The last criteria was disciplinary action. This refers to formal disciplinary action which was still live.

[123]The Claimant scored -2 one of his colleagues scored zero and the third colleague scored a – 5.

[124]The Claimant objected to his score of -2 since he asserted, not without justification, that he had not been subject to any disciplinary action as there had been no disciplinary hearing. The Respondent considered that he should be marked down by two points because of the record of conversation, which they say he had been allocated, all be it that he had not been informed of it.

[125]In the subsequent appeal following the Claimant's dismissal the Respondent removed this score and allocated the Claimant 0.

[126]We find that Mr Bishop used the same scoring system for all three lorry drivers and he also used the same matrix and scoring system which was used by other managers in other depots where people were being identified as at risk of redundancy.

[127]Mr Mills knew that Mr Bishop had regularly raised concerns about the routes followed by the Claimant not being the most appropriate route.

[128]Mr Mills told the tribunal that he had experience from a number of different redundancy exercises and that he had received some guidance from human resources about how to score the individuals against the matrices and how to carry out the consultation exercise. He confirmed that he had been provided with a script in advance of each of the three consultation meetings with the Claimant and accepted that he had followed the script for each meeting.

[129]Once the scores had been allocated, the Respondent identified the Claimant as the lowest scorer and determined that he was therefore at risk of redundancy the Respondent then proceeded to hold consultation meetings with him.

[130]Mr Bishop did not know and could not reasonably have been expected to know either that the Claimant was autistic at the point he scored him, or that the Claimant would be placed at a substantial disadvantage by use of the criteria. Of Course, HR did know at this point and could have checked the scoring , or given Mr Bishop some sort of steer, without disclosing the fact of Autism.

[131]The Claimant was informed that he had scored 27 and as the lowest scorer was being placed at risk of redundancy and the consultation meetings would therefore be held with him.

[132]By letter dated 27 October 2023, the Claimant was invited to the first consultation meeting. The letter stated that this was the first consultation meeting and explained the process. It did not state that the Claimant could have somebody accompany him and nor did it provide an agenda or other information in writing as requested by the Claimant.

[133]The Claimant wrote back asking for an adjournment because he wanted to consult with his trade union and also asking for an agenda. He asked for further information about the scoring process and specifically asked that all the information should be sent to him in writing, as an adjustment for him. He wanted to know the criteria by which he had been scored and how he had been allocated the scores.

[134]Mr Liddiard wrote back stating that all the information would be provided at the meeting, setting out the various things that would be discussed at that meeting. The only thing provided in advance, on the 2 November the day before the meeting, was a redacted copy of the matrix, showing the Claimants scores, provided.

[135]The first consultation meeting then took place on 3 November 2023.

[136]The first thing that happened at that meeting was that the Claimant told Mr Mills and Mr Liddiard that he had received his diagnosis of autism. The Claimant had already told Mr Liddiard in advance of the meeting. It seems to us that it was not appropriate for the meeting to just carry on, without any further discussion of the possible impact of a disability not only on Mr O’Rourke’s ability to take a full part in the process, but on the way he did his job.

[137]At this point no referral to occupational health had taken place and in fact the referral had been cancelled by Mrs Shannon. The Respondent stated that the referral to occupational health was cancelled because of the redundancy process. Mrs Shannon told the tribunal that the reason she decided not to proceed with the occupational health referral at that stage was because she did not consider it would be of assistance, since an occupational health report was usually requested in order to assist a Claimant to return to work.

[138]However, the claimant had received a report which set out some of the impacts on him. He had discussed this with Mr Liddiard. We find it highly probable that had he been referred to OH, he would have disclosed the fact of the report, and that this would have been referred to in any subsequent occupational health report.

[139]Mr Mills did not however have the benefit of any particular advice about whether or not any of the Claimant’s behaviour or any of the Claimants difficulties as identified by Mr Bishop might have been caused by or the result of the Claimant being autism at that stage.

[140]There was no consideration for example as to whether or not the Claimant’s insistence on following particular routes when driving, might arise from autism or whether, as seemed indicated by the existing occupational health report, his extreme stress and reaction to the requirement that he drive a 14 tonne excavator might be something which arose from his autism.

[141]At this point the Respondent was on notice that the Claimant had been diagnosed with autism spectrum disorder and the Respondent was well aware that the Claimant had had a number of potential difficulties in the workplace and with work colleagues. The occupational health report that they did have certainly suggested that the stress and distress the Claimant was suffering might be something to do with his autism.

[142]Despite the Claimant raising his diagnosis at the start of the first consultation meeting, and telling the Respondent that it was a lifetime condition and that he was working on his mental health, and saying whilst he had been signed off he had been having a lot of treatment and that he referred to suffering significant anxiety, neither Mr Mills or Mr Liddiard considered in that meeting whether or not they may need to consider making some adjustments to the process of consultation to take into account the disability and the difficulties the Claimant might have.

[143]They did ask the Claimant if he wanted to continue the meeting and the clamant said he did.

[144]Nor did any of the Respondent officers who dealt with the redundancy process ask the Claimant at any time whether or not he thought any of his difficulties might arise from autism. They did not consider at any time whether or not it may be necessary for them to make reasonable adjustments to the scores they had allocated, specifically to take account of the Claimants diagnosis of autism.

[145]At the first meeting the Claimant said that he was working on his mental health. He said whilst he had been signed off he had been having a lot of treatment and he referred to suffering significant anxiety. Despite this he did want to continue with the meeting.

[146]In the meeting Mr Mills told him the reasons for the redundancy and gave him some figures about the downturn in work

[147]Mr Mills explained that the Respondent had a scoring matrix which they had used to score the drivers. He asked the Claimant if he was employed as a Class 2 HGV driver. The Claimant confirmed that he was. He did not mention his recent receipt of a class one license.

[148]Mr Mills then told the Claimant a little bit about each criteria within the matrix that employees had been scored on. He did not explain how the Claimants scores had been reached.

[149]On attention to detail the Claimant was adamant that he should have scored excellent and challenged the Respondent on his low score, stating that he had always shown great attention to detail.

[150]He gave examples of being responsible for suggesting many changes to the Respondent to make their information more accurate, such as suggesting that they should use the what 3 words method of identifying destinations. He told them that he was one of the few people that would make sure that the addresses in the database were correct and that if he had been sent to incorrect address, he would take the time to correct them whereas others would not. He suggested that he should have received 5 points, not 2 for this.

[151]There was no real explanation to the Claimant as to why he only received 2. From reading the transcript the Respondent does not appear to have explained the scoring at all. This is unsurprising since Mr Mills had simply approved the scoring done by Mr Bishop, who was not at the meeting.

[152]In respect of the my performance score the Claimant complained about the timing of his performance review with Mr Bishop, pointing out that Mr Bishop had left it to last thing in the afternoon, the day before he Mr Bishop, was due to go on holiday. The Claimant specifically asked for clarification of the process and where the evidence had come from. He asked whether or not the score was simply based on Mr Bishop's opinion.

[153]In particular he asked about the routes he followed and how that impacted and explained to Mr Mills and Mr Liddiard his concerns that Mr Bishop had not understood why the Claimant had followed certain routes and why he thought Mr Bishop had been wrong in his criticism of the Claimant.

[154]He also told Mr Mills and Mr Liddiard that he had not previously been asked to photograph the fuel gauges under that once he had been asked that he had done it consistently.

[155]It was not suggested at this point that his failure to drive or his refusal to drive the 14 tonne excavators was part of the assessment.

[156]From the transcript of the meeting, it is clear that the Claimant was displaying signs of being obsessive about certain aspects of the criticisms, for example the issue about the routes he had followed that he was extremely long winded and he seemed unable to move on. He spent a long time talking about things that were probably of no relevance.

[157]However, at no time did he suggest either expressly or by implication , that any of the criteria had affected him badly because of his autism, or because of something that arose from his autism. This is understandable , as his diagnosis was very recent. What he did suggest was that he had been treated unfairly by Ian Bishop, because of bullying and harassment in the workplace. He clearly felt that he had been scored unfairly, and in particular felt that his attention to detail score should have been much higher.

[158]He was told that he had been given -2 in respect of disciplinary action and stated clearly that he had never been given or had not received a recorded conversation.

[159]Since this was a consultation meeting , the Claimant could have reasonably expected some clear explanation of why he had been scored as he was. He could also have expected that, if Mr Mills did not know, some steps would be taken to find out, to see if the Claimants comments were fair, and may have made a difference to the score.

[160]However, in respect of knowledge of the impact of disability, we find that the Respondent did not know and could not reasonably have been expected to know that the issue of routes, and the opinion of Mr Bishop that the Claimant did not always take the shortest routes, whether the Claimant always took photos as required, or the difference of opinion about the lower scoring of the Claimant in consequence, was placing the Claimant at substantial disadvantage, as a disabled person.

[161]We find that there was no indication at that meeting or otherwise, that these things did place the Claimant at a substantial disadvantage.

[162]Following this meeting the Claimant expected to receive notes or minutes of the meeting in writing. This is what he had been told would happen in the first letter he received. Instead, he was sent a recording of the meeting but no written minutes.

[163]Between the first and the second meeting Mr Mills had made some further inquiries.

[164]He received an e-mail from the man who had dealt with the informal grievance who said that he had told the Claimant at the end of the meeting that there would be a record of conversation placed on his file. He attached a note of the meeting. The note does not suggest that there was any discussion about the Claimant being given a record of conversation, or that this was a decision following the meeting.

[165]Mr Mills also contacted Mr Bishop. The tribunal was not shown the e-mail that Mr Bishop received, but we do see his reply. That email attaches a document showing a request for credit note, following a failure by the Claimant to photograph a full fuel gauge.

[166]In the e-mail dated 7 November 2023, Mr Bishop says he knows that this is important and will seek to provide further information. There is no evidence before the tribunal that he ever did so. We find that this therefore was the only information or evidence that Mr Mills was ever shown, to support the suggestion that the Claimant had failed to properly photograph fuel gauges.

[167]Mr Mills accepted that during the consultation meetings the Claimant had raised concerns about the way that he had been marked, and the validity of the information upon which the marks were based, and that the Claimant had raised concerns about particular routes for which he had been criticized. He accepted that the Claimant had explained why he had followed particular routes. He did not consider it necessary to review the scoring allocated by Mr Bishop because he considered that Mr Bishop was aware of the routes and because he trusted his analysis.

[168]On the issue of the 14 tonne trucks and the Claimant’s refusal to drive them, he accepted that there had not been discussion about the issue, because the Claimant had written to Graham Liddiard separately. Mr Mills had not seen the letter that the Claimant sent, in which he set out his explanation for not wishing to drive the 14 tonne trucks and therefore he had not taken it into account. Mr Liddiard did not make any reference to this at all either during the first or the second consultation meeting, although the Claimant did remark, during the first consultation meeting , that autism could be a factor in his not wanting to drive the 14 tonne excavators, and that this was something that needed to be dealt with by the OH.

[169]The refusal by the Claimant to drive the 14 Tonne excavators was clearly something which had influenced the my performance score given by Mr Bishop, and Mr Liddiard knew that the Claimant had significant concerns about this. Despite this there was no further discussion with the Claimant during the consultation meetings. There was therefore no consideration about whether or not this was something which was connected to or arose from his disability.

[170]Mr Mills considered that the Claimant had been given every opportunity to make comments, and the Claimant has explained in some detail why he thought his scoring was unfair.

[171]Mr Mills did ask Mr Bishop for some further information and received the one set of documents about one failure to photograph a fuel gauge.

[172]On that basis, he was satisfied that Mr Bishop had reached the correct score for correct reasons and did not consider any of the Claimant’s comments would have made any difference to any of the scores.

[173]Whilst Mr Mills did not taken any advice about how a recent diagnosis of autism might impact on the scoring , or the consultation process, he did discuss with Mr Liddiard whether or not the Claimant’s performance at work, including some behaviors, might be connected with or something to do with him being autistic.

[174]He told the tribunal that even though he had no particular knowledge about autism, he could not see why the fact that the Claimant was autistic would impact on any of the matters that they were considering and therefore considered that it was not necessary to take that into account further.

[175]We find that this was not unreasonable on the basis of the information that he did have, but Mr Mills accepted that it might have been useful to have had an occupational health report which identified particular autistic traits and how the Claimant might be impacted in the workplace by being autistic. We agree. The Claimant had raised the issue of autism and its impact on his scores, albeit briefly, Mr Mills had considered it and further enquiry would have appropriate. In addition, HR knew that the claimant was disabled, and ought to have taken some proactive steps to ask whether or no there was any impact on the claimant, or if they did need additional advice to determine this, before potentially dismissing a long erm employee.

[176]Some adjustments had been made for the Claimant. The Respondent took account of the fact that the Claimant was absent on long term sick leave and disregarded all his most recent sickness absence so that he was not disadvantaged in the scoring process.

[177]Further, whilst he had not understood the basis of the scoring, the Claimant himself did not raise things which he thought might be linked to his autism at the consultation meeting, other than one comment about the 14 Tonne excavators.

[178]Further, the Claimant has not identified how he was disadvantaged by the scoring matrix, or the two parts he relies upon, in his witness statement. When cross examined during the course of this hearing, he accepted that his decisions about which routes he followed, or his ability to take photographs of fuel gauges were nothing to do with Autism.

[179]We observe that someone newly diagnosed with autism, may well have real difficulties identifying the link between autism and a particular scoring matrix, and in this case, if there was a link, and we think there may well have been, it was not so obvious to either the Claimant or the Respondent.

[180]We find that the Respondent did not therefore know and could not reasonably have been expected to know of any link and in particular any substantial disadvantage during the first consultation meeting.

[181]A second consultation meeting took place and at the start of that meeting the Claimant pointed out that he required the notes or minutes in writing and that he needed them because that's how he processed information.

[182]He said he had a number of questions to ask about the process, but it was clear that he considered he had been hampered in his preparation for the second meeting by the lack of provision of written notes.

[183]He indicated that he had a range of questions, and Mr Mills suggested to him that he would discuss a variety of matters and it was probable that the things the Claimant wanted to raise would be covered during the course of their conversation. He did not ask what the questions were.

[184]The Claimant made reference to his autism and its impact upon him on a number of times during the course of that meeting. He referred to being autistic and the way he processes things. He said he processed written comments better than verbal comments.

[185]He said that when he was thrown off or interrupted he found it very difficult, and suggested that this was an autistic trait.( See page 295).

[186]In that meeting he also suggested that it was difficult for him to think about other roles he might be able to do, without an up-to-date occupational health referral to say what he could and could not do. At that point he was clearly expecting that there would be a further referral to occupational health to ask specific questions about the impact upon him of autism.

[187]As already noted, Mrs Shannon had decided not to proceed with the occupational health referral which Mr Liddiard had suggested would be helpful, following the Claimant's diagnosis of autism and at the point that the redundancy exercise was due to start.

[188]She was aware that the Claimant had a protected characteristic as an autistic person, and that she recognised that there was a need to make some reasonable adjustments for him in the process. She considered that this had been done, despite the Respondent not having considered whether or not the fact that the Claimant is autistic might have impacted upon his performance, which might in turn have had an impact upon the scoring of him against the matrix.

[189]She considered this was something which the Claimant had responsibility for raising within the process. She also thought it relevant that his diagnosis of autism was recent and they were looking at things that had happened in the past, even thought she was aware that autism is a life long condition. She did not consider that the Respondent had a responsibility to consider whether or not the fact that the Claimant is autistic may have been a factor in some of his workplace behaviors.

[190]In addition to the adjustment to the sickness mark, an adjustment had been made in respect of attention to detail. That mark had been changed, to draw distinction between the performance mark, which Mrs Shannon described as looking backwards at the previous six months, and the mark for attention to detail which she described as being a forwardlooking mark. She acknowledged that the Claimant, having been off sick since the 23 May, had not had a full opportunity to improve and also accepted that he had shown some sign of improvement and that therefore his mark had been changed to a 2, rather than a 0.

[191]It was not clear at what stage the discussion had taken place about this, or who had decided to change the mark, and this was not explained to the Claimant in the consultation meeting when he asked about how he had been marked.

[192]During the second consultation meeting the score allocated in respect of the record of discussion was raised again. Mr Mills stated that he had understood from the person who conducted the meeting that the Claimant had been told at the end of the meeting that there would be a record of conversation on the Claimants file for 12 months. The Claimant had no recollection of this being the case, was not shown the notes of that meeting, and pointed out that in any event he had not received it. At that point he was told that it was waiting for him in the office

[193]We find that Mr Mills did not review this matter further, and in particular did not try to find out when the ROC had been written , or left for the Claimant.

[194]This particular score was adjusted following the Claimant’s selection for redundancy but not until his appeal.

[195]Mr Spencer who heard the appeal considered that he should not have had the two points deducted because the record of conversation had not been properly communicated to him.

[196]Had this adjustment being made at an earlier stage, the difference between the Claimant's score and the score of the next nearest driver would have been three points. It would not therefore have made the difference as to who was placed at risk of redundancy and who was selected for redundancy. The Claimant would still have been the lowest scoring driver and on that basis would still have been selected for redundancy. However, it would have been evidence of some action being taken by Mr Mills to ensure that the Claimants comments and criticisms were taken into account.

[197]In this case, with such narrow margins between the Claimant and the next lowest scorer this was an important part of a fair consultation.

[198]There was a third consultation meeting on the 14 November 2023 and a final consultation meeting on the 17 November 2023 but no changes were made to the Claimant’s scoring and there was no further discussion about whether or to what extent the fact that the Claimant was autistic might have impacted upon any of the scoring.

[199]The Claimant was sent the redundancy outcome letter on the 17 November 2023 telling him that he would be selected for redundancy, and that his employment would end on the same day. He was told that he would be entitled to 12 weeks pay in lieu of notice.

[200]The Claimant appealed the decision on the 23 November 2023 and Andrew Spencer was appointed to hear the appeal.

[201]There were various adjournments of the appeal meeting so that the Claimant could attend with his union Rep and to take account of the availability of the individuals involved and the appeal meeting eventually took place on the 18 January 2024.

[202]The Claimant set out a number of grounds of appeal. One of the grounds of appeal was that the Respondent had failed to take into account the fact that the Claimant had recently been diagnosed with autism in the redundancy consultation and selection process.

[203]Other grounds of appeal were that the disciplinary action had been included; that the matrix information was inaccurate, and the Claimant had been ignored when he sought to raise matters; that there was no up-todate occupational health report and that the Claimant considered the selection pool ought to have been wider than the three HGV drivers.

[204]Following the initial hearing Mr Spencer carried out some further investigations. He decided that he needed a better understanding of the Claimant’s medical condition with advice from a professional, before reaching a decision and asked for an occupational health report to be obtained. This involved asking the Claimant to consent to the occupational health referral.

[205]At this point the Claimant had been dismissed and was no longer therefore an employee of the Respondent. The Claimant was asked to comment on the referral and provided his views in writing as to what the referral should address. He provided some specific matters which he thought should be asked about.

[206]Mr Spencer was not aware that there had been an earlier consent given by the Claimant for an occupational health referral at the beginning of the redundancy selection procedure and felt that had a report being produced at that point it could have been helpful.

[207]In any event the Claimant did not provide his consent to the referral in its existing form in March 2024, partly because he wanted to know whether or not he would be paid to attend, and partly because he wanted to discuss with the Respondents the scope of the referral.

[208]Having failed to obtain the Claimant’s consent and having failed to engage with the Claimant over the further information that he had provided at the Respondents request, it appears that a decision was taken to advise Mr Spencer to dispense with the occupational health referral and simply to make a decision on the appeal.

[209]The Claimant believed that he was engaging in appropriate correspondence with the Respondent. The Respondent considered that they were going round in circles and meeting resistance.

[210]Mrs Shannon therefore emailed the Claimant on the 16 April 2024 stating that as they had been unable to find a resolution over the question of the occupational health assessment, Mr Spencer had taken the decision that it was in the Claimant’s and the Respondent's best interests to determine the appeal on the information he had available.

[211]Whilst Mr Spencer did consider that the mark in respect of the disciplinary should be amended to a 0 he otherwise dismissed the Claimants appeal.

[212]We find that the Claimant was not refusing a referral to Occupational health, he was engaging with the Respondents as requested by them. The relevant legal principles

[213]Redundancy is defined by 139 Employment Rights Act 1996 which provides that: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—(a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish

[214]In Langston v Cranfield University

[1998] IRLR 172

, the EAT held that so fundamental are the requirements of selection, consultation and seeking alternative employment in a redundancy case, they will be treated as being in issue in every redundancy unfair dismissal case. Accordingly, even if not raised specifically by the Claimant, the employment tribunal will be expected to consider them. Moreover, the employer will be expected to lead evidence on each of these issues.

[215]Selection: It is now well established that tribunals cannot substitute their own principles of selection for those of the employer. They can interfere only if the criteria adopted are such that no reasonable employer could have adopted them or applied them in the way in which the employer did. However, as the EAT made clear in the Williams v Compair Maxam case, it is important that the criteria chosen for determining the selection should not depend solely upon the subjective opinion of a particular manager but should be capable of at least some objective assessment.

[216]Consultation: Consultation is one of the basic tenets of good industrial relations practice. Where unions are recognised, consultation will generally be with the trade unions, although this does not normally eliminate the obligation to consult in addition with individual employees. Usually the former will be over ways of avoiding redundancy and (if the union is willing to discuss the issue) over redundancy selection criteria. Consultation with individuals will generally arise once they have been at least provisionally selected, and will be for the purpose of explaining their own personal situations, or to give them an opportunity to comment on their assessments. As the EAT commented in Mugford v Midland Bank plc

[1997] IRLR 208

, unions will generally want to consult over selection criteria, but rarely if ever wish to be involved in the invidious process of selecting individuals by the application of those criteria. It is in that context that individual consultation takes on a special importance.

[217]Search for alternative employment: In order to act fairly in a redundancy situation an employer is obliged to look for alternative work and satisfy himself that it is not available before dismissing for redundancy (with the same employer or elsewhere in a group of associated employers, if appropriate). It has been emphasised by the case law that the duty on the employer is only to take reasonable steps, not to take every conceivable step possible to find the employee alternative employment.

[218]In certain circumstances a tribunal may properly find that even though the dismissal would have taken place, adherence to fair procedures would have delayed its implementation. This is the approach sanctioned by the House of Lord in Polkey v A E Dayton Services Ltd

[1987] IRLR 503

[1988] ICR 142

, HL. In these circumstances compensation should be awarded for the additional period of time for which the employee would have been employed had the dismissal been fair (see Mining Supplies (Longwall) Ltd v Baker

[1988] IRLR 417

[1988] ICR 676

, where a dismissal was held to be unfair for lack of consultation and the EAT held that had a reasonable period for consultation occurred the dismissal would have been delayed by a week).

[219]An employer does not necessarily act unreasonably if it does not invite volunteers for voluntary redundancy. It may act within the range of reasonable responses if it discounts the possibility of making voluntary redundancies.

[220]However, the reasonableness of dismissal in such circumstances will depends on the particular facts of the case. The tribunal will need to consider whether or not there were likely to have been other volunteers for redundancy As for example in Stephenson college against Jackson EAT 0045 1/3, All whether or not a failure to consider asking for volunteers for redundancies was Unfair. This might include circumstances in which an employee was near to retirement for example or circumstances in which an employee was known to be unhappy. Selection criteria

[221]Selection criteria should not be too vague or ambiguous. An employer may fall foul if a criteria is imprecise. In Odhams Sun Printers Limited and Hampton and others EAT 77686, the employers criteria were considered to be vague and imprecise when they applied a last in first out, which was subject to a retention of a balance of skills in each department.

[222]The criteria of quality of work; efficiency in carrying it out and attitude of the person passed the reasonable test in Graham v ABF limited

1986 IRLR 9080

. In that case the Claimant was selected for redundancy because of his attitude to the work allocated to him, including obscene language, hostility which had been the subject of a complaint. The Employment Appeal Tribunal considered that attitude to work was dangerously ambiguous but upheld the employment tribunals finding that it was reasonable on the facts.

[223]We remind ourselves that the criteria selected must be objective and must not merely reflect the personal opinion of the selector. They must be verifiable by referenced data, such as records of attendance; efficiency and length of service.

[224]In Williams and others against compare maxxam limited

1982 ICR 15680

the retention of employees who would keep the company viable, in the opinion of the manager, was ruled to be entirely subjective and unreasonable.

[225]When assessing whether or not criteria are objective, the tribunal needs to consider both whether the selection criteria themselves are reasonable, but also the way that they are applied and whether the methodology is objective and transparent. We will need to consider factors such as whether they had been universally adopted within the company; whether there had been training on the meaning of the criteria and whether or not there is a method for cross checking or benchmarking different managers assessments of factors that may be subjective. We reminded ourselves that this does not mean that a selection criteria will be unfair simply because it involves a degree of judgement on the part of the employer. That of itself will not mean that the criteria cannot be assessed objectively or dispassionately.

[226]In Swinburne and Jackson LLP V Simpson EAT 0551/12 the EAT stated that in an ideal world all criteria adopted by an employer in a redundancy context would be expressed in a way capable of objective assessment and verification. But our law recognises that in the real world employers making tough decisions need sometimes to deploy criteria which called for the application of personal judgement and a degree of subjectivity it is well settled law that an employment tribunal reviewing such criteria does not go wrong so long as it recognises that fact in its determination of fairness.

[227]We remind ourselves that if we consider the selection criteria to be objective then we should not subject the criteria or the application of them to over minute scrutiny. It is sufficient for us to be satisfied that the method of selection was not inherently unfair and that it was applied in this case in a reasonable fashion. We remind ourselves that employers are given a wide discretion in the choice of selection criteria and the manner in which they apply them and that we are only entitled to interfere in those cases which fall at the extreme edges of the reasonableness band. See for example British Aerospace PLC v Green and others

1995 ICR 1006

CA.

[228]We remind ourselves that we may also consider the length of the assessment period, and that a short assessment period may not show the true picture. Employers are expected to make an allowance where an employee's assessment period is truncated by maternity leave; disability or other statutory absences to ensure that they are scored fairly as against other employees .

[229]We remind ourselves that whilst a criteria related to performance; skill or knowledge are commonly used criteria, it will be important to assess the evidence of how that performance is measured. Where there is regular monitoring of performance against targets, an organisation should have objective and verifiable documentation. This will contrast with an employer who relies upon the subjective opinion of the employer's manager at the time the redundancy is considered.

[230]We remind ourselves that it will be sensible for many employers to seek to retain a workforce that is balanced in terms of skills and abilities and that these are reasonable considerations as long as they are assessed objectively.

[231]We remind ourselves that whilst in some circumstances it may be legitimate for an employer to take into account expired disciplinary warnings (see for example Airbus UK limited v Web

2008 ICR 561

CA) This does not mean it will be fair to take into account incidents that did not result in disciplinary action.

[232]In this case the Claimant alleges that his selection for redundancy was discriminatory as well as unfair he alleges discrimination on grounds of disability the disability being autism.

[233]Failure to make reasonable adjustments

[234]The duty to make adjustments under S.20 EqA comprises three discrete requirements, any one of which will trigger an obligation on the employer (or other person subject to the duty) to make any adjustment that would be reasonable. Under S.20:  the first requirement applies where a provision, criterion or practice (PCP) has been applied by the employer that puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled  the second requirement applies where a physical feature of the workplace puts a disabled person at a similar substantial disadvantage in relation to a relevant matter, and  the third requirement applies where the lack of provision of an auxiliary aid puts a disabled person at a substantial disadvantage in relation to a relevant matter.

[235]In respect of all three requirements, a ‘relevant matter’ is simply any matter concerned with deciding to whom to offer employment and anything concerning employment by the employer.

[236]A failure to comply with any of the requirements in S.20 amounts to a failure to comply with the duty to make reasonable adjustments, and an employer will have discriminated against a disabled person if it fails to comply with the duty in relation to that person. However, para 20(1) of Schedule 8 to the EqA provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know that an interested disabled person has a disability and is likely to be placed at a disadvantage by the employer’s PCP, the physical features of the workplace, or a failure to provide an auxiliary aid ( See para 20(1)(b)).

[237]The words ‘could not reasonably be expected to know’ in para 20 give scope for an employment tribunal to find on the evidence that the employer had constructive (as opposed to actual) knowledge both of the disability and of the likelihood that the disabled employee would be placed at a disadvantage. The question we must ask is what, objectively, the employer could reasonably have known following reasonable enquiry. Case law has established that employers do not have to make every possible enquiry in circumstances where there is little or no reasonable basis for doing so.

[238]In determining a reasonable adjustments claim, we must therefore consider the nature and extent of the substantial disadvantage relied on by the employee, make positive findings as to the state of the employer’s knowledge of the nature and extent of that disadvantage, and assess the reasonableness of the adjustment (i.e. ‘step’) that it is asserted could and should have been taken in that context.

[239]In practice, these three aspects of the duty necessarily run together. An employer cannot make an objective assessment of the reasonableness of proposed adjustments/steps unless it appreciates the nature and extent of the substantial disadvantage imposed on the employee by the PCP, physical feature or lack of access to an auxiliary aid, and an adjustment to a work practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. 240. ‘substantial disadvantage’ is simply something that is ‘more than minor or trivial’ – S.212(1).

[241]The assessment of substantial disadvantage must be undertaken ‘in comparison with persons who are not disabled’ – S.20(3)–(5) EqA. In Fareham College Corporation v Walters

2009 IRLR 991

, EAT, the EAT emphasised that the comparative exercise in a reasonable adjustments claim, which involves a class or group of non-disabled comparators, differs from that which is applied in the individual, like-for-like comparison required in cases of direct discrimination.

[242]We remind ourselves that in order to make a finding of failure to make reasonable adjustments there must be identification of:(a) the provision, criteria or practice applied by or on behalf of an employer; or

(b) the physical feature of premises occupied by the employer;

(d) the nature and extent of the substantial disadvantage suffered by the Claimant.

[243]See for example the guidance given in Environment Agency v Rowan

[2008] IRLR 20

[2008] ICR 218

[244]Underhill P in Wilcox v Birmingham CAB Services Ltd

[2011] All ER (D) 73

(Aug), [2011] EqLR 810 stated that 'to spell it out, an employer is under no duty under [EqA 2010 s 20] unless he knows (actually or constructively) both(1) that the employee is disabled and

(2) that he or she is disadvantaged by the disability in the way set out at in [EqA 2010 s 20(2)-(4)]. As Lady Smith points out [in Alam], element (2) will not come into play if the employer does not know element (1).'

[245]We remind ourselves that what is required is that the Respondent has knowledge of the facts of the Claimant’s disability not knowledge that those facts meet or are likely to meet the definition of disability in section 6 of the Equality Act. See Gallop v Newport City Council

[2013] EWCA civ 1583

[246]The provision asking whether an employer could be 'reasonably expected to know' means that an employer may be under a duty to make enquiries to establish whether a person is suffering from a qualifying disability and whether that disability puts the person at a substantial disadvantage. The Code of Practice at para 6.19 gives the example of an employee who has depression and cries at times at work and says that it is likely to be reasonable for the employer to discuss with the worker whether their crying is connected to a disability and whether a reasonable adjustment could be made to their working arrangements.

[247]In DWP V Hall

UKEAT/0012/05

, the court held that the Respondent should have known about the Claimant’s disability even though she had not specifically informed them of it there was evidence from her negative replies in a health declaration form her volatile behaviour and her refusal to give the employer access to medical records which should have been warning signs.

[248]A failure to inquire into the possibility of disability is not sufficient to lead to a finding that the employer knew or could reasonably have been expected to know that a Claimant had a disability. It is important to establish what the employer might reasonably have been expected to know had it made such an inquiry see A LTD V Z

2020 ICR 199

, EAT.

[249]The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the tribunal, according to the EAT in Jennings v Barts and The London NHS Trust

UKEAT/0056/12

, [2013] EqLR 326,

[2013] All ER (D) 184

(Mar). It further held that 'if a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time using the benefit of hindsight, it is giving the same mental impairment a different name'.

[250]This would suggest that an employer ought to concentrate on the impact of the impairment, not on any particular diagnosis. Langstaff P in Donelien v Liberata UK Ltd

UKEAT/0297/14

(16 December 2014, unreported; affirmed by the Court of Appeal

[2018] EWCA Civ 129

[2018] IRLR 535

) warned that when considering whether a Respondent to a claim 'could reasonably be expected to know' of a disability, it is best practice to use the statutory words rather than a shorthand such as 'constructive knowledge' as this might imply an erroneous test. The burden – given the way the statute is expressed – is on the employer to show it was unreasonable to have the required knowledge.

[251]But the Respondent must be found to have knowledge both of the disability and the substantial disadvantage that the Claimant relies upon. A Respondent will not be liable if despite being aware of the disability it did not have knowledge and could not reasonably have been expected to have knowledge of the particular disadvantage the Claimant relies upon. See Glasson v Insolvency Service

2024 EAT 5

[252]In this case the Claimant also makes a claim of discrimination for a reason arising from discrimination .

[253]We remind ourselves When considering a complaint under s. 15 of the Act, we had to consider whether the employee was “treated unfavourably because of something arising in consequence of her disability”. There needed to have been, first, ‘something’ which arose in consequence of the disability and, secondly, there needs to have been unfavourable treatment which was suffered because of that ‘something’ (Basildon and Thurrock NHS-v-Weerasinghe

UKEAT/0397/14

). Although there needed to have been some causal connection between the ‘something’ and the disability, it only needed to have been loose and there might be several links in the causative chain (Hall-v-Chief Constable of West Yorkshire Police

UKEAT/0057/15

and iForce Ltd-v-Wood

UKEAT/0167/18/DA

). It need not have been the only reason for the treatment; it must have been a significant cause (Pnaiser-v-NHS England

[2016] IRLR 170

), but the statutory wording (‘in consequence’) imported a looser test than ‘caused by’ (Sheikholeslami-v-University of Edinburgh

UKEATS/0014/17

[254]In IPC Media-v-Millar

[2013] IRLR 707

, the EAT stressed the need to focus upon the mind of the putative discriminator. Whether conscious or unconscious, the motive for the unfavourable treatment claim needed to have been “something arising in consequence of” the employee's disability.

[255]No comparator was needed. ‘Unfavourable’ treatment did not equate to ‘less favourable treatment’ or ‘detriment’. It had to be measured objectively and required a tribunal to consider whether a Claimant had been subjected to something that was adverse rather than something that was beneficial. The test was not met simply because a Claimant thought that the treatment could have been more advantageous (Williams-vTrustees of Swansea University Pension and Assurance Scheme

[2019] ICR 230

, SC).

[256]We have reminded ourselves of the reverse burden of proof applicable to the arguments on discrimination, meaning that if the Claimant proves facts from which we could infer that the discrimination had taken place, then the burden shifts to the employer to prove a non discriminatory explanation.

[257]We remind ourselves that the test of fairness under section 98 Employment Rights Act is different to the tests applicable to discrimination claims under the Equality Act. We must consider both matters separately

Conclusions

[258]The first question we must consider is whether or not the Respondent knew or could reasonably have been expected to know that the Claimant was a disabled person for the purposes of the Equality Act 2010, at any point from the initial scoring of him against the matrix until the point of dismissal

[259]The second question is whether or not the Respondent could have been expected to know that his impairment would have the impact that he now relies upon.

[260]We conclude that by early October 2023, the Respondent had sufficient information about the likely impairment, because the Claimant had told HR that he was having tests for a Neuro diverse condition , that it was likely to be long term since Neuro diverse conditions are life time ones, and that it was having a substantial adverse impact upon his ability to carry out ordinary day-to-day activities, because he was absent on sick leave, having suffered an extreme and adverse reaction to the suggestion that he might have to drive 14 tonne excavators. We find that the disability or something connected with it, was impacting the Claimant , and that therefore the Respondent had corporate knowledge of the disability from this date.

[261]If we are wrong, then we find that by 19 October 2023 at the latest, the Respondent knew that the Claimant had been diagnosed with autism, and that he was on long term sick leave because of something which was likely be connected with autism, or traits arising from it, and knew or could reasonably be expected to know that he was disabled, because he had sent over the diagnostic letter.

[262]Whilst Mr Bishop did not know that the Claimant was being assessed for a neuro diverse condition when he scored the Claimant, we conclude that by the time of the first consultation meeting , when the Respondent told Mr Mills and Mr Liddiard that he had a diagnosis, the Respondent knew or could reasonably have been expected to know that the Claimant had a disability.

[263]As set out above in our findings of fact we find that in the first consultation meeting and up until the 2nd consultation meeting, the Respondent could not reasonably have been expected to know that the criteria for scoring the Claimant would have a substantial adverse impact upon the Claimant.

[264]The Respondent did realise that he would be impacted by a criteria which penalised those on sickness absence and took appropriate measures to correct the scoring.

[265]By the end of the second consultation meeting Mr Lydiard; Mr Mills and Mrs Shannon were all aware that the Claimant was newly diagnosed as autistic, that the Claimant was suggesting that there might be a link between being autistic and not wanting to drive the 14 tonne excavators, and that this factor had influenced the scores allocated to the Claimant by Mr Bishop in respect of his performance management which would then lead to a low score in the redundancy selection exercise.

[266]At this point we conclude that the Respondent was on notice of a potential link between the Claimants disability and a low score in a redundancy exercise such that they ought to have made some further enquiries.

[267]Mr Liddiard had considered occupational health referral might be useful and in retrospect Mr Mills also considered that it might have been useful. 1st we consider that the Respondent ought to have made a referral to occupational health once the Claimant disclosed his disability to Mr Mills and Mr Liddiard in October 2023. We do not accept that it was reasonable for the Respondent to cancel the occupational health referral which Mr Liddiard had already identified as being appropriate.

[268]Further we reject the Respondents submission that the Claimant prevented them from obtaining an occupational health advice following the hearing of his appeal. We accept that the Claimant entered into discussion with the Respondents about the scope of the occupational health referral but we conclude that the reason it did not go ahead was because the Respondent and Mrs Shannon in particular decided that the appeal process should be concluded without it because of the time it was taking.

[269]The Respondent had taken a decision not to continue with a referral to occupational health. We conclude that this would have been a reasonable enquiry to make, given the long service of the Claimant , the relatively early stage of the Redundancy process and the Claimant’s recent diagnosis, and the lack of understanding of autism within the organisation, and the Claimants own comments in the consultation meeting.

[270]We have therefore considered what the Respondent might have been told, had they made a referral to OH.

[271]We find that the detail the Claimant received from experts in Autism would probably not have been given in an OH report, but the Claimant did have a report done in September 2023, which could, and we conclude on balance probably would have been have been made available to an occupational health consultant by the Claimant .

[272]We all agree that it is likely that there would have been some identification of the types of traits that Mr O’Rourke had, as potentially being associated with Autism. Further, from our experience of OH reports, we conclude that it is likely that OH would have identified the Claimant’s need for information to be in writing in advance, and for him to be given notes of meetings in writing and for him to be accompanied to meetings, as things that arose from autism, and which , if not provided would place him at a disadvantage compared to those without his disability.

[273]We conclude that it is likely that OH would have identified the Claimant’s dogmatism and inability to change his mind if he thought he was right, as traits associated with Autism.

[274]Whilst we have information before us today, because we have seen an expert report, to be able to identify certain traits which arise from his autism and to consider that there is a possibility that they impacted upon the scores allocated to him by Mr Bishop, looked at in retrospect, we all agree that there is no certainty that this or ought to have been clear to the Respondents following an occupational health report. The links are complicated and far from obvious, and we therefore conclude on balance of probabilities, that the Respondents could not reasonably have been expected to know, having made reasonable inquiries, either that the Claimant would be placed at a substantial disadvantage in the scoring process because of his autism or that they could reasonably be expected to know that his lower scoring in my performance and attention to detail were because of things which arose from his disability. Direct Discrimination

[275]We have considered the question of direct discrimination. The decision to make redundancies was a national decision and the decision to make a redundancy at the Southampton office was also made centrally.

[276]The criteria and the matrix were designed by Mrs Shannon and were applied to all the depot's where redundancies were being made.

[277]At the Southampton depot, there were three people in the pool selection, and we conclude that the two other drivers in the pool are the appropriate comparators since they were in the same material circumstances as the Claimant and neither of them had a disability.

[278]We conclude that Mr Bishop was responsible for scoring the Claimant and we find that he applied the same criteria to all three drivers. In that respect he treated the Claimant in the same way as he treated the two other drivers.

[279]The Claimant’s complaint that Mr Bishop favoured the other drivers more than him, is not proven on the evidence before us, although we accept the Claimant had a more difficult relationship with Mr Bishop then the other two drivers.

[280]Mr Bishop did not know that the Claimant was disabled, and we find that even if he was less tolerant or less well disposed towards the Claimant, that the difference in his scoring of the Claimant , was because he thought the Claimant was not performing as required, and not showing the skill level which would merit the higher scores. We have made no findings of fact from which we could conclude in the absence of an explanation that his lower scoring of the Claimant was on grounds of the Claimant’s disability. We have not found that Mr Bishop behaved towards the Claimant in a negative or prejudicial manner for example.

[281]In those circumstances, we conclude that the Claimant has not proved a prime facie case, such that the burden of proof would pass to the Respondent.

[282]We therefore dismiss his claim of direct disability discrimination. Reasonable Adjustments

[283]We have considered whether or not there was a failure to make a reasonable adjustment for the Claimant.

[284]The Claimant relies on a policy, criterion or practise of the use of a matrix or criteria for marking people for the purposes of selecting for redundancy. We find that the Respondent did have such a policy criteria or practise. These were the criteria applied by the Respondent to the Claimant and everyone else in the redundancy process.

[285]The Claimant asserts that the use of the criteria placed him at a substantial disadvantage, in that his disability adversely affected his scores against two criteria. The Claimant relies on the my performance and attention to detail criteria. He says that the Respondent should have made adjustments by ameliorating that impact.

[286]We remind ourselves that the Claimant bears the burden of proving that any PCP placed him at a substantial disadvantage compared to those without disabilities.

[287]The next question is whether or not the application of those criteria placed the Claimant at substantial disadvantage compared to those without his disability.

[288]In respect of both my performance Mr Bishop marked the Claimant down because of his disinclination to drive 14 tonne trucks, despite Mr Bishop considering there was no good reason for him to do so, and because of the Claimants insistence that he was driving the most appropriate routes, and that Mr Bishop was wrong.

[289]In respect of the 14 tonne trucks it is possible that the Claimant's refusal to drive them and his insistence that he had valid reasons for his refusal were impacted by autism or autistic traits. If that is right, then we conclude that there is a possibility that the Claimant was disadvantaged in the scoring. However, it was not the use of the criteria themselves that disadvantaged the Claimant, but the fact that the Claimants my performance score was affected by his refusal to do something that was a part of his job, where his refusal was potentially impacted by autism.

[290]We conclude that the criteria themselves were on the face of it objective and that it is only with close analysis, and with the benefit of expert advice that the affect of autistic traits upon the Claimants ability to do certain tasks for which he was being assessed in an appraisal and subsequently marked for in the redundancy exercise starts to come into focus. Put another way it is very difficult to understand the various links between the traits that the expert has identified as autistic traits and the scoring by Mr Bishop.

[291]In the list of issues the substantial disadvantage is that the use of the criteria affected the Claimants scores and the adjustment is to ameliorate the effect of the criteria.

[292]We conclude that the real failure of the Respondent was not to refer the Claimant to the occupational health professional. But our conclusion is that even had they done so, there would still have been a lack of clarity about whether or not the Claimant had been disadvantaged by the use of the particular criteria or not.

[293]We conclude that following reasonable inquiries the Respondent corporate corporately could not reasonably have been expected to know that the Claimant would be disadvantaged by some aspects of his autism in the redundancy process and that the use of the criteria might impact upon his scores. Because of our conclusions as to what the Respondent could reasonably have been expected to know had reasonable inquiries being made about any substantial disadvantage, we conclude that the Respondent was not under a duty to make reasonable adjustments to the use of the criteria or the scores allocated to the Claimant.

[294]We therefore dismiss the Claimants claim of discrimination for a failure to make a reasonable adjustment. Discrimination for something arising from disability

[295]We then consider whether or not the Respondent discriminated against the Claimant for something arising from his disability.

[296]The Claimant’s case is that at least two scores in the redundancy scoring matrix were detrimentally affected by his disability, the attention to detail and/or my performance scores, put another way that his inability to score more points under attention to detail and/or my performance, was because of something arising from his disability.

[297]Our findings of fact are that the Claimant made a suggestion that his refusal to drive 14 tonne trucks might be connected with autism in the second consultation meeting. This is the only evidence we have from the Claimant, suggesting what it was that arose from his disability that he says impacted his scoring.

[298]We conclude on balance of probabilities given the information we now have that his refusal to drive the trucks being based upon his firm belief that there was a safety issue and his inability to accept that he might be wrong did arise from his autism.

[299]We conclude that this refusal was one of a number of reasons why he was marked down in his appraisal and therefore was part of the reason why he received the lowest score in respect of my performance in the redundancy selection exercise.

[300]We also conclude that the Respondent could reasonably have been expected to know that the Claimant was disabled and that with reasonable inquiry the Respondent could be expected to know that the Claimant was scored down on this thing, which did arise from his disability.

[301]It was not the only reason, and we conclude that even taking that into account there were a number of other matters which the Claimant himself agreed when nothing to do with autism which would have led to the same score in any event. However, this was, we conclude unfavourable treatment, regardless of its impact on the final score in the redundancy exercise and we take particular note of the fact that the Claimant himself considered this to be wholly unjust and unfair.

[302]The Respondent relies upon the legitimate aim of operating the business with economic efficiency i.e. reducing the headcount to ensure that the Respondent’s costs did not exceed its revenue and/or were a reasonable proportion of its revenue by undertaking an equitable process to select employees for redundancy across the Respondent company whilst retaining the most skilled and efficiently performing employees.

[303]We all agree that this was a legitimate aim for this Respondent.

[304]We have therefore considered whether or not the method used was proportionate to its aims. We have considered whether or not there was a less discriminatory way of achieving the same objectives.

[305]A less discriminatory way of operating its criteria, would have been to ensure that the Respondent identified whether or not any aspect of its scoring was having an adverse impact on the Claimant newly diagnosed with autism. This could have been achieved by referring the Claimant to an early occupational health appointment, and taking advice as to whether or not the criteria had an impact upon the Claimant.

[306]We all agree that even if the Respondent had made a referral to occupational health and even if the advice they received did identify the 14 tonne excavator issue as arising from disability but any adjustment to the scoring would not have changed the Claimants appraisal scoring and therefore would not have changed his scoring in the redundancy exercise.

[307]What it would have done was remove the injustice to the Claimant which we consider was likely to have impacted on the confidence he had in the scoring system .

[308]In those circumstances we find that the Claimant was discriminated against for a reason arising from disability. Unfair Dismissal

[309]We have considered whether or not the Claimant was fairly dismissed for redundancy.

[310]We all agree that the Respondent had a genuine reason for redundancy and we agree that the process overall was broadly fair.

[311]We criticise the use of the particular criteria in two respects.

[312]First, we conclude that the attention to detail and my performance criteria relied far too heavily on the subjective view of one manager. Despite the Claimant asking during the consultation process and despite inquiries by the tribunal during the course of this hearing, Mr Bishop has not explained to our satisfaction how the Claimant was scored 0 by him for attention to detail.

[313]Whilst we are critical of the score given in respect of my performance it seems to us that Mr Bishop, having decided that the Claimant needed to improve, had no option but to score him a 0. This was not the same for attention to detail. The only evidence provided to the tribunal, which was not provided to the Claimant during the course of the consultation meetings although it was provided to Mr Mills, was one set of documents which appeared to indicate one instance of an occasion when the Claimant had not photographed a fuel gauge. Since there were clearly other factors which Mr Bishop took into account, we would have expected him to be able to identify with reasonable clarity what factors he had taken into account and how and why he had scored the Claimant in respect of each of them.

[314]Bearing in mind the legal tests that we must apply, we conclude that the subjectivity in the attention to detail criteria was not acceptable.

[315]Despite this criticism, we have found that there was some opportunity for the score to be amended and that it was amended.

[316]Secondly, there was a degree of overlap in the scoring for my performance and attention to detail in that the same aspects of the drivers performance were being assessed in respect of each.

[317]However reminding ourselves of the legal tests when considering criteria used for redundancy exercise and looking at the criteria and the way they were used in the round, we conclude that overall the scoring system itself was a fair one.

[318]We have then considered the procedure as a whole and the reasonableness of the decision to dismiss this employee at this point in time for redundancy.

[319]The Claimant had worked for the Respondent for a very long time. He had a recent diagnosis of autism and the Respondent themselves had recognised the need for a further occupational health referral.

[320]The failure of the Respondent to make that referral and the failure of the Respondent to actively consider whether or not the Claimants diagnosis of autism had impacted his performance at work and therefore his rating in the appraisal or his scoring in any other respect, and the associated failure to consider whether or not the Claimant needed adjustments made to the consultation process itself, was unreasonable.

[321]Whilst the three consultation meetings were broadly fair, and the impact on him of his diagnosis of autism was never really considered or discussed at all. Therefore no adjustments or accommodations were made for the Claimant for example, the Claimant was not provided with written minutes in advance of the meeting, despite being told he would receive them.

[322]We conclude that the failure of the Respondent to refer the Claimant to occupational health for advice on how his autism might impact him in the redundancy process was wholly unreasonable particularly since a member of the human resource is team dealing with the Claimant had identified that it would be useful.

[323]We all agree that any reasonable employer would not have continued with the redundancy exercise without having made such a referral and gained advice. Taking into account our conclusions in respect of discrimination for a reason arising from disability, we conclude, that it was not reasonable given the size administrative resources of the employer and taking into account all other factors for this employer to decide to dismiss this employee for redundancy. The dismissal is procedurally unfair.

[324]We have then considered whether or not a fair process or a non discriminatory process would have made any difference to the outcome.

[325]We conclude that referral to occupational health and consequent advice would not on balance of probabilities have made any difference to the Claimants score in the redundancy process. We find that he would have been the driver selected for redundancy at some point.

[326]We have considered whether or not a referral to occupational health would have delayed matters to any great extent and we conclude that it would not. The Claimant had consented to the referral and the previous occupational health referral and report had been carried out within a matter of days. We have no reason to think that a second referral would have taken any longer and we conclude it would not have done.

[327]We therefore conclude that the Claimant would have been fairly dismissed at the same time, even if a fully fair procedure had been followed.

[328]Given our findings the Claimant will be entitled to a remedy and the parties will be contacted regarding a remedies hearing in due course. Approved by: Employment Judge Rayner Date: 8 September 2025

Conclusions

[1]The claimant is awarded an award in respect of injury to feeling of £11,200.00.

[2]The claimant is awarded interest on his award for a two year. At the rate of 8% of £1792.00

[3]The respondent will pay the claimant the total sum of £12,992.00. Employment Judge Rayner Dated: 5 December 2025 13th January 2026 ……………………………. For the Tribunal: ………………………….. Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.