Mr B Faraday v BMW Hams Hall Moteron GMBH: 6016994/2024
EMPLOYMENT TRIBUNALS
Case No 6016994/2024
Between
Mr B FaradayClaimantBMW Hams Hall Moteron GMBHRespondentDate 7 January 2026
JUDGMENT
[1]The claimant’s failure to make reasonable adjustments complaint is dismissed upon withdrawal. His remaining complaint of discrimination because of something arising from disability is unaffected and shall proceed to trial. approved by me[1]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds in relation to the outcome of the capability meeting as communicated to the claimant by letter dated 22 August 2024 specifically in relation to the requirement for night work in the rig and de-rig role.[2]The complaint of unfavourable treatment because of something arising in consequence of disability in relation to inviting the claimant to a capability meeting on 27 June 2024, holding the capability meeting on 8 July 2024, communicating an outcome to it on 22 August 2024 and the content of those documents and/or meetings (save in relation to the point at paragraph 1 above) are not well-founded and are dismissed.
REASONS
[1]The claimant has been employed by the respondent since 1 October 2008 and his employment is continuing. At the time of the events that the claim is about, he was employed as an Assembly Operative, on a 37 hour per week contract.[2]This claim is about whether the claimant was subjected to discrimination arising from disability in relation to certain elements of a capability process between June 2024 and August 2024, in particular as to whether there was unfavourable treatment arising as a consequence of an inability to work more than four hour shifts and/or an inability to work nights. ACAS early conciliation commenced on 22 August 2024 and ended on 3 October 2024, with the claim form being presented to the Tribunal on 1 November 2024. Claims and Issues[3]In addition to his claim form, the claimant subsequently provided Further and Better Particulars of his claim on 10 March 2025 (the Further and Better Particulars). Whilst the narrative in his claim form had indicated a potential complaint of failure to make reasonable adjustments, he confirmed in his Further and Better Particulars that he withdrew any reasonable adjustment claim and that references to adjustments were by way of background only. This was recorded in a Case Management Summary following a preliminary hearing before Employment Judge Perry on 22 April 2025 and a Judgment dismissing the complaint of failure to make reasonable adjustments on withdrawal was issued dated 22 April 2025. The sole complaint that the Tribunal had to address was one of discrimination arising from disability. Likewise, the claimant confirmed that elements of his witness statement which went beyond the (ultimately) agreed List of Issues were background context and not intended to be part of his claim. The Tribunal would note that this was an unusual claim, in that from the background information provided it was clear that the claimant has multiple concerns about the way he was treated relating to both the period before and after the issues in this claim, whereas the claim itself was very narrow. However the claimant was very clear that his claim only relates to those issues set out in the (amended) List of Issues set out below, and therefore the Tribunal has confined its conclusions to those issues.[4]The claimant relied on two stated disabilities: back issues and bilateral shoulder problems. Prior to the hearing the respondent’s position had been that it accepted that the claimant was disabled by reason of back issues, but not bilateral shoulder problems. However, at the start of the hearing, the respondent conceded that the claimant was disabled by reason of both conditions, and therefore the Tribunal did not need to address the question of disability. The respondent also did not raise any arguments in respect of knowledge of either disability.[5]There was however some discussion around the list of issues at the start of the hearing, before the Tribunal had reading time and before evidence was commenced. This was because there was some lack of clarity in the List of Issues as agreed at the preliminary hearing on 22 April 2025 as to the scope of the alleged unfavourable treatment. Unfortunately, neither of the representatives from that hearing were present at this final hearing to assist with that clarification process.[6]There were two elements to the unfavourable treatment in the draft list of issues: the first was straightforward and it was agreed that this was simply about whether the act of inviting the claimant to a capability meeting in late June 2024 (initially stated to be 28 June 2024 but on reviewing the documentation the parties agreed that this was an error and it should read 27 June 2024) amounted to unfavourable treatment. In relation to the second alleged unfavourable treatment however, this was stated in the List of Issues recorded by Employment Judge Perry to be “the capability meeting that took place on 8 July 2024”, and this led to a discussion about the extent to which that related only to the fact of the meeting, or to its contents and/or to the outcome which later followed in August 2024.[7]The claimant’s submission, having regard to what the claimant had included in his Further and Better Particulars, was that it was clear that what was being complained about was not just the holding of the meeting, but also what was said and done at it and what was included in the outcome letter that followed (paragraphs 13 to 16 of the Further and Better Particulars). The claimant’s position is that it was all inextricably bound up together. The respondent’s representative’s position was that it accepted that the outcome of the capability meeting was referenced in the Further and Better Particulars but not the invitation to it, and that the respondent did not necessarily see it as a discrimination arising from disability claim. The respondent’s representative accepted that it was not prejudiced by the outcome to the meeting being considered as part of the claimant’s claim provided it was limited to discrimination arising from disability and not extended to a reasonable adjustments complaint. The claimant’s representative confirmed that he was not seeking to add a reasonable adjustments complaint back into the claim, that having been dismissed as outlined above. On that basis, the respondent’s representative confirmed that he had no objection to the List of Issues being stated to include the fact of being invited to the capability meeting, the things stated in the meeting as per paragraph 13 of his Further and Better Particulars, and the outcome to that meeting, and confirmed that the respondent would not be prejudiced by doing so.[8]The Tribunal felt that the issue as stated in the original List of Issues did not clarify that the outcome would be included in the scope of the issues to be considered (and noted in particular that the invitation was listed separately to the meeting itself, so the ordinary expectation would be for the outcome to be listed separately too, which it was not). However, the Tribunal also noted that it is not required to stick “slavishly” to the List of Issues where to do so would impair its ability to hear and determine the claim as pleaded (Parekh v London Borough of Brent 2012 EWCA Civ 1630, CA). Whilst an agreed list of issues will generally limit the issues to those in that list, case management decisions as to the list of issues can be revisited and considered if it is necessary in the interests of justice to do so. As per Moustache v Chelsea and Westminster Hospital NHS Foundation Trust 2025 EWCA Civ 185, CA, the starting point is to consider what complaints are identified from an objective analysis of the statements of case. The question for the Tribunal therefore was whether these elements were within the pleaded claim and, to the extent that the claimant relied on the Further and Better Particulars, whether they had been incorporated into the pleaded claim or whether amendment would be required.[9]The Tribunal noted that the claim form, in relation to the capability meeting in question, included an allegation that a role was identified but that the claimant would have to work nights, along with a further allegation that Occupational Health had advised to trial an area of the business, that the claimant was not informed if the meeting was formal or informal, and that others were allowed to work 3-4 days per week and not working nights. The respondent’s representative confirmed that these were matters that arose at the capability meeting and the Tribunal decided that they were part of the pleaded claim.[10]As to the outcome letter, the Tribunal invited submissions from both parties. The respondent’s representative submitted that the claim form itself was somewhat “opaque” about the extent to which the complaint was about the outcome letter or the meeting, although he submitted that the focus was the meeting. However, the respondent’s representative also indicated that the respondent was prepared to deal with the issue of the outcome letter provided it was limited to the discrimination arising from disability complaint, the Tribunal decided that the claim as pleaded would include the outcome letter that was issued following the capability meeting in question, as part of the output that was complained about by the claimant. In relation to the Further and Better Particulars, the Tribunal also noted that Employment Judge Perry had (on 22 April 2025) referred to that document and granted permission to the respondent to lodge an amended response if they so wished to address those Further and Better Particulars. Employment Judge Perry did not explicitly address in his Case Management Summary whether the Further and Better Particulars required an amendment to the claim or not, however he did not indicate that amendment was required and when read as a whole it is clear that he understood the claim to be proceeding on the basis of what was contained within the Further and Better Particulars. Therefore, the Tribunal decided that, to the extent that the claimant relied on information in his Further and Better Particulars, then either that was already part of the pleaded claim (which did not distinguish specifically between the meeting itself and outcome) or, in the event it was not, then Employment Judge Perry had granted an amendment to the claim by accepting the Further and Better Particulars as part of the pleading on 22 April 2025.[11]The Tribunal decided that it was necessary in the interests of justice to amend the List of Issues so that it was clear that the content and outcome of that capability meeting formed part of the claim, and therefore the second allegation of unfavourable treatment was amended, with consent from both representatives, to read (new wording in italics) “The capability meeting that took place on 8 July 2024, including the outcome of it as ultimately communicated by way of letter dated 22 August 2024”.[12]The Issues for the Tribunal to determine, following the above discussions (and based on the parties’ agreement that no time limit issues arise) were as follows: 1. Did one of the following “something(s)” arise as a consequence of the disability?a. His inability to work more than 4 hour shifts andb. His inability to work nights 2. Has the claimant proved the respondent treated the claimant in one of the following ways? a. On 27 June 2024 inviting the claimant to a capability meeting b. The capability meeting that took place on 8 July 2024, including the outcome of it as ultimately communicated by way of letter dated 22 August 2024. 3. If so was that unfavourable treatment? 4. Did the unfavourable treatment arise as a consequence of “the something”? 5. Does the respondent show that the treatment was a proportionate (that is reasonable and necessary) means of achieving a legitimate aim namely a. The effective organisation and safety of the workforce b. The effective and safe running of the production linec. Appropriate management of the claimant’s employment contractd. Maintaining operational and business efficiency, and/ore. Proper planning of business activities, manpower and resources[13]It was agreed that liability would be considered first, with remedy being considered separately if the claimant was successful. We have therefore not set out the issues in relation to remedy here, however they have been included in Employment Judge Perry’s Case Management Summary dated 22 April 2025 and these will need to be considered at the separate remedy hearing in due course. Procedure, Documents and Evidence Heard[14]This hearing had originally been listed for four days, however unfortunately due to judicial resources the parties were notified prior to the hearing that only three days would be available in this listing window. For that reason, whilst we were able to conclude the evidence, hear submissions and deliberate within the three days, we were unable to also deliver oral judgment or address remedy. At one stage the Tribunal thought there might be enough time to deliver judgment within the three days, and for that reason the parties reattended the hearing at 3pm on the third day for an update, and at that stage it was agreed that a reserved judgment would instead follow. The Tribunal is grateful to the parties for their understanding and cooperation to ensure that we at least got to a stage where a reserved judgment could be issued, and also grateful to them for waiting until the afternoon of the third day to find out whether an oral judgment could be provided.[15]The Tribunal heard evidence from the claimant and his union representative, Mr Jason Powell, on his behalf, and from Nicholas Evans, Nick Tasker and James Watson on behalf of the respondent. From correspondence sent to the Tribunal prior to the hearing, there appeared to be an issue in relation to the witness statement of Mr Powell having been disclosed after the original deadline for exchange of witness statements, however the respondent’s representative confirmed at the start of the hearing that no objection was being made by the respondent to the inclusion of this statement in evidence, and on that basis the Tribunal allowed it despite its lateness.[16]The Tribunal was also provided with a bundle amounting to 975 pages (although much of that was medical documentation that was no longer relevant following the respondent’s concession on disability) and page references in these Reasons are to the relevant page in that bundle. We explained to the parties that the Tribunal would not read all the documents in the file, only those we were taken to. We were also provided with a cast list and chronology, and a skeleton argument from the claimant’s representative at the start of the hearing (which the respondent’s representative accepted was accurate in relation to the relevant legal test, and which we adopted when reaching our conclusions). Both representatives then provided oral submissions following the conclusion of evidence.[17]Whilst the claimant did not request any specific adjustments during the hearing, due to his disabilities the Tribunal confirmed to the claimant that he could request breaks should he need them, and that he was free to stand up and move around if needed during the course of the hearing. Facts
Background
[18]The claimant's employment with the respondent commenced on 1 October 2008 and is continuing. At the time of the events this claim is about, he was employed in the respondent’s Band L as an assembly associate, employed on a 37 hour per week contract (page 75). The “bands” refer to different assembly lines within the respondent, and each assembly line had various “stations” with different tasks being carried out on each.[19]The respondent employs over 1600 people at the claimant's place of work. In the claimant’s role he had to fit various mechanical parts to engines on an assembly line. This work was repetitive and involved pulling elevated tools down to fit the parts.[20]The claimant was disabled at the relevant time due to back issues and bilateral shoulder problems, both of which had been ongoing for a number of years. The claimant took various medication for his conditions, including amitriptyline. This had side effects which meant that the claimant was unable to work nightshifts. For that reason, and also for childcare reasons, from 2019 a formal flexible working arrangement was introduced whereby he would be placed on shift patterns not involving night work (page 87).[21]In around September 2020, around the time staff returned to work following the Covid-19 pandemic, the shift patterns in Band L changed, so that instead of a 5 day week with the daytime shifts being 7.5 hours, instead there were four longer days of 9 to 10 hours. The claimant says that he found this shift pattern more difficult due to his health.[22]During the course of 2023, the claimant had various periods of sickness absence and physiotherapy reports were obtained in relation to his ability to perform his role on 15 August 2023 (page 330) and 15 December 2023 (page 345). The reports were produced by Laura Mak, a senior physiotherapist who worked for Nuffield Health but who was based on site at the respondent's plant. It is clear from these reports that the claimant was struggling with his role due to his health and in fact he was absent due to his back injury from 25 August 2023 until the end of January 2024. January 2024 return to work[23]On 26 January 2024 the claimant had a workplace assessment with Laura Mak prior to his return to work (page 352). This recommended reduced hours of 4 hours per day pending further treatment and suggested four potential suitable stations on Band L that he could work on (stations 350, 310, 295 and 90, although it was noted that station 350 was due to end in the near future in any event). The report also said that Band V could be considered but Band L roles would be trialled first - Band V was a different production line and an assessment was ordinarily required to be passed before an individual could work on Band V. The claimant had previously taken that assessment but failed it, which he says was because he forgot his glasses on the day. Mr Tasker, the claimant's manager, said he was surprised that the claimant did fail that assessment and therefore we find the claimant's account to be plausible. Band V role also operated on different shift patterns, namely on the 5 day week with shorter shift length each day.[24]The claimant returned to work on 31 January 2024 with a view to trialling those four stations, working four hours per day. He was paid full pay on his return, however we find that this was intended to be a temporary arrangement pending his further treatment and assessment of what stations he could work on on a longer term basis.[25]We saw a letter from the claimant's consultant dated 16 February 2024 (page 892) in which it was recorded that the claimant was keen to come off medication, and a suggestion made to start weaning off the Pregabalin. We find that this was specific to Pregabalin and did not suggest that the claimant would be coming off the amitriptyline even though the claimant acknowledged that he did not like being on medication.[26]The claimant attended an absence review meeting on 29 February 2024 (page 359). In this meeting he indicated that he struggled with station 90, that station 350 "wasn't too bad" (although this is the station that was not a long term viable option anyway). He said he struggled with station 295 and that 310 had been ruled out due to overhead guns and it being pro rated as was station 350. The claimant also explained that he had tried working a 5 hour day and it had been "a killer", and indicated that it could be 2 to 3 years, which we take to be a reference to it being 2 to 3 years before he could perform longer hours and repetitive tasks. The overall impression given at this meeting was that the claimant had not as yet found a suitable work type for his condition, and that the impact of his condition was going to be long term in the claimant's view. March 2024[27]On 1 March 2024 the claimant had another physiotherapy assessment by Laura Mak (page 362). This report stated that "in my professional opinion Mr Faraday is not fit for long term track / manual work as his pain increases within his 4 hour shift". She recommended that he be referred to Occupational Health to discuss his long term management and ability to carry out a production line role. It appears this referral was not made at that time. It is also clear that Ms Mak is coming to the conclusion that the claimant is not going to be able to find suitable work within his current department.[28]A further absence review meeting took place on 14 March 2024 (page 364). By this point, all the potentially suitable roles in Band L had been explored unsuccessfully and the claimant said that he thought he would struggle with anything for more than 3 to 4 hours. Mr Tasker said that 4 hours per day on Band L was not "value added". Mr Tasker started to discuss with the claimant potentially moving to other departments. He said that Band V could possibly be an option, but that if the claimant worked part time hours he would need to be paid at part time pay rates. In the context of this being a longer term solution, that was a reasonable position to take.[29]Mr Tasker and the claimant discussed the claimant potentially completing the Band V assessment again, and also discussed whether there were any roles in EFT (End Function Test). In relation to EFT, the claimant did trial roles there but they were also not suitable (page 366). Following the meeting, the claimant did re-sit the Band V assessment and was successful in it. Invoking the capability process[30]There was a further physiotherapy assessment on 23 April 2024 (page 369). At this stage Laura Mak stated that she did "not foresee an increase in hours in assembly until [the claimant] has had his radio frequency treatment; even if hours can be increased after this procedure I do not foresee these changes to be long term". Therefore, whilst the claimant was still awaiting treatment her professional opinion was that the treatment would not enable him to carry out his role full time in the long term. We heard in evidence that the claimant disagrees with that assessment. At this stage the respondent had not sought advice from Occupational Health, who in turn might have sought advice from his GP or consultant. However, regardless, there was no date for the proposed treatment at this time and no suggestion of imminent recovery even on the claimant's own account.[31]The respondent decided to invoke its capability process at this point. We were referred to the respondent's Poor Performance and Capability Policy (page 939). Whilst the title of the policy clearly refers to general capability, the focus and thrust of the policy was very much on performance issues, which does not really align to the issues faced by the claimant. We do find it surprising that this policy does not have a specific section within it dealing with capability issues which are not related to poor performance but rather the ability to perform the role due to health issues. Having said that, we accept that this is the policy that the respondent would use in such situations.[32]We heard evidence from Mr Tasker about why it was at that point that the capability process was invoked. He explained that initially he would try to find an alternative role in his own department i.e. Band L, and only if that had not worked would he then invoke the formal policy as a way to commence the process of looking at other departments. This was confirmed by Mr Evans in his evidence. The claimant and his trade union representative allege that in reality the capability process is invoked when the respondent wants to move towards dismissal.[33]We prefer the evidence of Mr Tasker and Mr Evans on this point. Mr Tasker gave clear evidence that he has not in fact moved to dismissal when he has used this policy in other cases and we accept his position that he used it as a way of moving things forward with other departments. We cannot find any specific trigger in the policy as to when the formal stage would be invoked in these circumstances, because the relevant section (page 941) refers to where the required performance improvements have not occurred at the informal stage, which is not relevant to the claimant's particular situation. However, given the length of time in which the claimant had not been able to increase his hours, his stated position (supported by Laura Mak) that he was unlikely to be able to do so in the foreseeable future, and the fact that the Band L roles had been explored unsuccessfully, we consider this to be an appropriate next step to take.[34]The capability meeting took place on 16 May 2024 (pages 374-379). The notes of the meeting suggest that the tone of it was somewhat fractious. At the meeting, the claimant indicated that he disagreed with Laura Mak's opinion in terms of her not seeing an increase in hours and long-term changes even with the planned injection. Having said that, the claimant also confirmed (at page 376) that he did not anticipate being able to return to contracted hours.[35]Mr Tasker informed the claimant that Band V and Logistics had been looked at but that there were no suitable roles given the claimant's restrictions and the time of the shifts. He said that there would be an expectation to work a three shift pattern (i.e. a rotating shift pattern) and to work the whole shift with a rehab plan in place. He was offered a trial in Band V and that they could “walk the line” (i.e. do a face to face assessment of the assembly line) with Laura Mak (page 376) but the claimant said that he would need advice from his GP. There was also a discussion about whether or not the claimant had called his consultant and he said that he had rung the secretary.[36]At the end of the meeting the next steps were confirmed to be that the claimant would ask his GP about potentially moving lines to a line with a slower cycle time and to chase when his procedure would be, and the respondent would arrange a workplace assessment with Laura Mak on Band V in parallel. June 2024 workplace assessment[37]That workplace assessment was carried out on 7 June 2024 (page 381) by Laura Mak. She did the line walk with Carl Smith (who was a manager within Band V) but the claimant was not present. We are not clear why the claimant was not present, and we consider it might have been of assistance had he been, although we note that Mr Tasker in his witness statement (at paragraph 19) had commented that the claimant had previously raised concerns about having other associates around when workplace assessments were undertaken. Her conclusion was that although V-line had a slower "engine per minute" rate, the jobs per engine were increased and the roles were repetitive and carried out by rotation in teams. She concluded that V Line would present the same challenges for the claimant as Band L. She recommended that, if a trial was deemed necessary, then the areas which were more suitable were inspection, piston or EFT however she still considered they could be highly irritable. She said that she felt in her professional opinion that he may be more suited to a trial in Logistics where repetition was less.[38]Following the assessment, Ms Mak exchanged emails with the claimant (pages 897-899). From these emails, it is clear that Ms Mak recommended an Occupational Health assessment be carried out, that she was willing to reassess the claimant once she had that report and information from the claimant’s consultant about the benefits / prognosis of his treatment, and that she felt a role in logistics would be more suitable for the claimant. It is also clear that the claimant disputed some elements relating to how repetitive the potential assembly lines would be and that Ms Mak had said that the only way to truly see that would be to trial the area however she reiterated her concerns about the roles based on the information provided to her. Invitation to further capability meeting 27 June 2024[39]The claimant was invited to a further capability meeting by letter dated 27 June 2024 (page 383). This letter referred to no long-term solution having been found and stated that the workstation assessment on Band V had deemed the roles to be repetitive with rotation being key and as such were unsuitable. It referred to Occupational Health but we find this was in error as it was intended to refer to Laura Mak as physiotherapist. The letter also stated that there would be an expectation to work the full shift requirement on Band V which the claimant had said was not realistic. The letter went onto say that Logistics, alongside other areas, had been considered but was not suitable due to the manual handling and physical elements to them.[40]Laura Mak had of course recently said that the claimant might be more suited to a trial in Logistics. She had not by this stage walked the line to do a full assessment. We find that the comment that it was not suitable was based on Mr Tasker's personal professional opinion based on his understanding of the role and his experience of it.[41]The claimant was provided with the link to the jobs board to see if there were any other roles he wanted to apply for. The letter concluded by setting out that if the outcome of the capability process was that no reasonable adjustments could be made, then he may be dismissed.[42]A further line visit was conducted by Laura Mak on 28 June 2024 (page 385). This considered a potential role in Stuart Stringers's rig and de-rig area, and came about because Mr Powell, the claimant's union convenor, had suggested it. In this report, she raised some concerns about the role but also highlighted that that role would not be repetitive and would provide the ability to stretch and mobilise out of prolonged postures, and that the claimant may be able to work around the issues that were of concern. She suggested that the role be trialled to see if it was manageable for him, and said that if it was then she thought he could work full time hours. The capability meeting 8 July 2024[43]The capability meeting took place on 8 July 2024 (page 387) however unfortunately the discussions broke down and it ended prematurely when the claimant said "I'm done" and brought the meeting to an end. At the start of the meeting, Ms Taylor confirmed her awareness that the claimant was not at the end of his treatment plan but said that he could not remain indefinitely on a rehab plan (the one set up in January 2024). Mr Tasker referred to the fact that the claimant had previously been asked to go back to his consultant, and the claimant said that he could not go back to his consultant again as he looked like a stalker.[44]Mr Tasker asked the claimant if he wanted to trial the rig and de-rig role and the claimant said that he had not been to look at it. The discussion then progressed to whether that role would involve night work and Mr Powell said that the flexible working policy follows employees around (i.e. that it should not). Mr Tasker questioned how that could be allowed, because there could (theoretically) only be one person on the role. He said "I'm not saying they can't, but they might not be able to accommodate. It's a smaller department". We find that at this stage, Mr Tasker is not saying definitively whether night work could be avoided, but is raising the possibility that it might not be possible. We find that, as he was not the manager of that department, and given that he knew it was a smaller team, this was a reasonable position for him to take at that stage. Whilst the claimant had a flexible working arrangement and therefore could not be forced to work nights, equally if a new role could only be done on a basis that did include nights, then the respondent would potentially be within its rights to say that the claimant could not move to the role. So in reality there were two things that would need to be verified in relation to the rig and de-rig role: whether the claimant could do it bearing in mind his physical symptoms, and whether the role could be done without night work.[45]The discussion then reverted to whether or not the respondent would call the claimant's consultant and Ms Taylor said "that's not my responsibility". Whilst she was correct that she personally would not do it, one option would have been to seek Occupational Health advice (as Ms Mak had suggested) and for the Occupational Health practitioner to contact the consultant. That does not appear to have been suggested.[46]The meeting then came to an abrupt end and on the same day the claimant commenced a period of sick leave citing stress, which lasted until 28 April 2025. Events following the capability meeting[47]The respondent obtained an Occupational Health assessment following the claimant's sick leave (page 390) which was dated 17 July 2024. The report stated that the primary reason for it was because of his inability to work due to workplace stress: we therefore find that it was his sickness absence due to stress and not his physical health that prompted the report. The report does reference his physical health but it does not appear that his consultant has been contacted for any advice or prognosis. Mr Tasker accepted in evidence that he should have asked the doctor to do so.[48]We were shown a letter dated 19 July 2024 which gives the appearance of being an outcome to the capability meeting (page 394) however it was not clear from the evidence whether or not this was sent and it appears possible that this was a draft version (based on the contents of an email at page 393). In any event it was later superseded by the 22 August version to which we turn below. Both representatives confirmed that no issues were being raised in relation to this specific letter and therefore that we did not need to determine the point.[49]The claimant raised a grievance on 16 August 2024 (page 400) which he stated to be a grievance relating to alleged failure to make reasonable adjustments. This was a detailed grievance setting out a number of complaints, although as it post dates the issues in this claim we do not address them in detail save for some comments about the investigations below. Outcome letter dated 22 August in relation to capability meeting[50]Before the grievance was investigated, the claimant was sent a letter confirming the outcome of the July capability meeting, dated 22 August 2024 (page 404). This letter confirmed that the claimant had indicated that he did not foresee himself ever being able to work a full 9 hour shift, and raised concerns about his levels of attendance and ability to fulfil his contract of employment on an ongoing and sustainable basis. His absence levels were then set out in a table, indicating that the concern related not only to the issue about suitability of his role but also his absence levels more generally over an extended period back to the start of his employment.[51]The letter went onto conclude that the claimant was not capable of carrying out his contracted role and that there were no reasonable adjustments that could be made to enable him to do so. Given the claimant's acceptance that he would not be able to get back to full time hours in that particular role, and given that the respondent had accommodated 4 hours per day for an extended period since January 2024 without an end date being in sight, this was a reasonable conclusion to reach.[52]The letter then set out two options as a means of avoiding potential dismissal on capability grounds:a. The claimant varying his contract formally so that he stayed in his role but working only 4 hours per day, and only being paid for those 4 hours; orb. Redeployment into another role, with pay and benefits being aligned to the particular role.[53]As a broad concept, those options were reasonable: the respondent could not reasonably be expected to continue to accommodate part time working on full time pay in the claimant's role indefinitely with no clear end date.[54]The letter then went onto refer to the rig and de-rig role and stated that "there is an expectation, after a trial and if the position is deemed suitable by you and the business, that you would be required to follow the current shift pattern of this role which is a 3-shift rotating shift pattern including nights and on fulltime hours. While we appreciate you currently have a flexible working arrangement whereby you do not work a night shift, this was approved and agreed by the company based on your role as an Assembly Associate as it could be accommodated within a large team. The team in TA-543 is significantly smaller and would not be able to accommodate your current flexible working arrangements".[55]This is a shift in position from the capability meeting on 8 July: in that meeting Mr Tasker had indicated the possibility that night work might not be possible. Here, however, he is saying that it definitively is not. Some time later, in the grievance investigation process, at a meeting with Mr Stringer who ran the rig and de-rig team on 11 November 2024, Mr Stringer indicated that when a line walk was done on the rig and de-rig line, he could not recall night shifts being discussed. He also indicated that he did not know whether avoiding night shifts could be accommodated as this would need to be discussed with HR and go through the Plant Council (i.e. the employee representative body) (page 937). We therefore find, based on Mr Stringer clearly not having been aware of the night issue or having explored it when interviewed in November 2024 for the purposes of the grievance investigation, that Mr Tasker and/or Ms Taylor cannot have explored it with him prior to the 22 August 2024 letter. We accept Mr Stringer's position and that it was reasonable for him to have to have those discussions before he could determine the position, however Mr Tasker's letter indicated that it definitively could not be accommodated before those steps had been taken.[56]We would add that we do not consider that Mr Tasker had any malice or ill intention in saying this, and we accept his evidence that he put what he thought was right at the time in the letter, however we do find that the letter should have been phrased differently, so as to indicate that the role could be trialled but that separate consideration would need to be given to the position on night work - either before or after the trial - and that this would need to go through the Plant Council.[57]The letter then concluded by offering a trial on the rig and de-rig role, and asking the claimant to consider the options further, saying that if he did not wish to explore the two options on offer, then the respondent would need to determine whether to dismiss the claimant as a final outcome. The claimant’s grievance[58]Mr Watson was appointed to hear the claimant's grievance and during the course of October and November 2024 he carried out various investigations with various individuals, including the claimant. We do not repeat all of them here as the grievance process is not relevant to the issues nor is the subsequent appeal however we highlight a few relevant points made in those investigations:a. We have already highlighted the fact that Mr Stringer had not specifically considered the night work issue and the fact that Plant Council approval would be required.b. When Mr Tasker was interviewed (from page 902, at page 907) about the rig and de-rig role, he indicated that if they were to go down that route then they would need to speak to Stuart Stringer. This again supports our view that this had not as yet been done and that in reality Mr Tasker had therefore overstated the position in the letter of 22 August 2024 which should have indicated that the removal of night work may not be able to be accommodated, rather than would not be able to be accommodated.c. Laura Mak was interviewed (page 919) and she said that she had been expecting the respondent to contact Occupational Health and for them to request information from the claimant's GP / consultant. She also referred to having suggested a trial in Logistics but a green light not being given (by this we find she meant that the respondent did not give the green light for a trial of it).d. The process leader of the logistics team, Jaroslaw Brzuzy, was interviewed (page 927) and he said (at page 929) that he could not say for certain whether the claimant could do the role without an assessment, but he did comment that he was struggling to understand the physiotherapist saying it was a good fit given it was a physical role. This reflects Mr Tasker's concern that the claimant would not be capable of the role.[59]The grievance outcome was verbally delivered to the claimant on 12 November 2024 at a meeting (page 410) and sent in writing to the claimant on 18 November 2024 (page 422). His grievance was not upheld. However, it did recommend a workplace assessment be carried out on logistics. It also concluded (at page 413) that any work patterns (which would include potential night work or the avoidance thereof) would be assessed as part of the trial. The implication of this is that contrary to the wording in the 22 August 2024 letter, a final decision on night work had not been taken. This aligns to the fact that Mr Stringer had as yet not been consulted nor had the Plant Council.[60]The claimant appealed the grievance outcome on 25 November 2024 (page 428). Again, we do not repeat the content of the investigations into it as it is not relevant to the issues in the case, save that Diane Papworth (Leadership Partner) said when interviewed (page 949, at page 950) that communication could have been improved with the claimant and between HR. The appeal outcome was delivered verbally to the claimant on 6 March 2025 and in writing on 21 March 2025 (page 438). His appeal was not upheld however some recommendations were made to the HR team for process improvement and clarity on policy.[61]Whilst not relevant to the issues in this case, we are aware that the claimant returned to work on 28 April 2025 to the Logistics team, but was off sick at the time of the Tribunal hearing due to a hip issue. Law Discrimination arising from disability
Law
[62]Section 15 of the Equality Act provides that:(1) A person (A) discriminates against a disabled person (B) if – a) A treats B unfavourably because of something arising in consequence of B's disability, and b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[63]A comparator is not required. The EHRC Code equates unfavourable treatment to being "put at a disadvantage" (paragraph 5.7). An unjustified sense of grievance would not amount to a disadvantage. The question is whether the individual reasonably considers that they have suffered a disadvantage (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337, HL).[64]As set out in Sheikholeslami v The University of Edinburgh [2018] UKEAT, there are "two distinct causative issues:a. Did A treat B unfavourably because of an (identified) something? Andb. Did that something arise in consequence of B's disability?[65]In Pnaiser v NHS England and anor 2016 IRLR 170, EAT, Mrs Justice Simler summarised the approach to be taken to causation as follows:a. The first step is to identify whether there was unfavourable treatment and by whom;b. The next step is to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator;c. The third step is to establish whether the reason was something arising in consequence of the disability; andd. Finally, if so, whether the treatment was a proportionate means of achieving a legitimate aim.[66]In considering whether there was unfavourable treatment because of something, this involves consideration of the alleged discriminator's mental processes (both conscious and subconscious, although motive is not relevant). Consideration of whether that something arose in consequence of disability is an objective test. There must be a connection between the "something" and the disability, even if it arises from a series of links (iForce Ltd v Wood UKEAT/0167/18).[67]To amount to unfavourable treatment because of the "something" this must be more than a trivial part of the reason for the treatment, however it is not necessary for it to be the main or sole reason (Pnaiser v NHS England [2016] IRLR 170, EAT). It is insufficient for a claimant to show that "but for" their disability, they would not have been in a position that led to unfavourable treatment (Robinson v Department for Work and Pensions [2020] EWCA Civ 859).[68]It is for the respondent to show that the treatment amounts to a proportionate means of achieving a legitimate aim. In considering this, the Tribunal must strike "an objective balance" between the discriminatory effect and the reasonable needs of the party who carries out the treatment (Hampson v Department of Education and Science [1989] ICR 179). The treatment must be both an appropriate means of achieving the aim and reasonably necessary in order to do so (Homer v Chief Constable of West Yorkshire [2012] UKSC 15). This is stricter than the test for range of reasonable responses but the respondent does not need to show that there is no other possible proposal. The treatment will not be proportionate if there were less discriminatory measures that could have been taken to achieve the same objective.[69]A four stage justification was set out in the non-employment case of Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15:a. Is there a legitimate aim being pursued?b. Are the means rationally connected to that aim?c. Are the means no more than necessary to achieve that aim?d. Has a fair balance been struck between the need to accomplish the legitimate aim and the disadvantage thereby caused to the claimant? Burden of proof[70]Section 136 of the Equality Act states that:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
Conclusions
[71]We have re-ordered the List of Issues so as to consider the issues in the order suggested in Pnaiser (above). Has the claimant proved the respondent treated the claimant in one of the following ways?(a) On 27 June 2024 inviting the claimant to a capability meeting(b) The capability meeting that took place on 8 July 2024, including the outcome of it as ultimately communicated by way of letter dated 22 August 2024. If so, was that unfavourable treatment?[72]It is accepted that the claimant was invited to a capability meeting by letter dated 27 June 2024. It is also accepted that a capability meeting took place on 8 July 2024 and that an outcome to it was ultimately communicated to the claimant by letter dated 22 August 2024. We will come back to the content of the meeting and outcome letter later in these conclusions.[73]In relation to the fact of progressing through the capability process, the claimant’s position is, in effect, that it was premature to move to that step and that alternative roles should have been explored first and/or Occupational Health advice sought. The claimant suggests that this was the first step towards dismissal. The respondent’s position is that this was simply the next step in the process, the first capability meeting having taken place in May 2024 and Band L roles (i.e. roles within the claimant’s own department) having by that time been exhausted.[74]As to whether that amounted to unfavourable treatment, the question is whether the claimant reasonably considered that they had suffered a disadvantage. Even if an employer thinks that they are acting in an employee’s best interests, that can nevertheless constitute unfavourable treatment.[75]We conclude that the aim of the process (including the invite letter, holding the meeting and delivering an outcome to it) was not to dismiss the claimant, but rather to move to the next stage in trying to find alternative work for him. Whilst some might argue that this was a positive step, we do nevertheless conclude (as supported by Mr Tasker’s own evidence when he said words to the effect that it would not be nice to receive such an invite letter) that the claimant reasonably considered that he had suffered a disadvantage through the procedure being followed. It was made clear to him throughout, and would have been known to him through the policy itself, that if no resolution was found, the ultimate outcome might be dismissal. That amounts to unfavourable treatment.[76]We now address whether the claimant was treated unfavourably through the contents of the documentation and/or what was said at the capability meeting. It was made clear to the claimant that dismissal was a possible ultimate outcome, which would amount to unfavourable treatment for the same reasons as already concluded. In addition, the invite letter referred to Band V and Logistics being unsuitable for him, which again is unfavourable. At the meeting the claimant was informed that the respondent would not contact his consultant for him, and he was told that the rig and de-rig role may not be able to accommodate no night work despite his flexible working arrangements. That was clearly unfavourable treatment. The outcome letter raised various concerns about the claimant’s absences, ability to do his role, concluded that he could not do his role and said that unless one of the two options came to fruition then dismissal would be considered. It also specifically said that he was not able to avoid night work on the rig and de-rig line. Again this was clearly unfavourable treatment.[77]The treatment as alleged in the List of Issues did therefore occur and amounted to unfavourable treatment. Did one of the following “something(s)” arise as a consequence of the disability?(a) His inability to work more than 4 hour shifts and(b) His inability to work nights. Did the unfavourable treatment arise as a consequence of “the something”?[78]The next step is to decide what caused that unfavourable treatment, focussing on the reason in the mind of the alleged discriminator. Here, the alleged discriminator was Mr Tasker: whilst Miss Taylor was also involved in the process, Mr Tasker was the decision maker. We have considered what was in Mr Tasker’s mind, both consciously and subconsciously, although we recognise that his motive is not relevant. The “something” need not be the sole or main reason but must have a more than trivial influence on the unfavourable treatment, so as to be an effective cause of it.[79]We conclude that the claimant was unable to work more than 4 hour shifts (in his contracted role) and also that he was unable to work nights. We also conclude that these arose in consequence of his disability: in relation to the length of shifts, he could not sustain more than four hours in one shift due to his disabilities. In relation to night work, whilst there was an element of childcare related to this, the evidence we saw was clear that the claimant’s medication (which he took because of his disability) meant that he was unable to work nights at that time.[80]We now turn to the reason for the unfavourable treatment. We focus first of all on the procedural steps of inviting the claimant to the capability meeting, holding the meeting and issuing an outcome. Here the reason for moving for moving to stage two in the capability process was because stage one had already been invoked at the point when Band L roles had been exhausted (in May 2024). The output of that stage one meeting was that the respondent asked the claimant to get more information from his doctors, and the respondent was to do a workplace assessment on Band V. That workplace assessment had been carried out and a number of weeks had passed, and therefore the respondent decided to move to the next step in the process.[81]The reason for the underlying process was that the claimant had been working only 4 hour shifts since January. Whilst he was unable to work nights, that was not the reason for the process, the process was because he was unable to increase his hours in his contracted role.[82]Moving then to whether that reason was something arising in consequence of the claimant's disability (this being the third Pnaiser step). As pointed out by the claimant’s representative, we recognise that the wording in the List of Issues does not exactly mirror the statutory test under section 15 of the Equality Act, and the issue is whether the unfavourable treatment is because of the something arising in consequence of disability.[83]There are two pleaded "somethings". The second, in relation to his ability to work nights, was not the reason why the treatment arose. However, the inability to work more than 4 hour shifts was the reason why the capability process was progressed. Therefore, in relation to the procedure, there was unfavourable treatment because of something arising as a consequence of the claimant's disability.[84]We turn next to the content of the documentation and what was said in the meeting (as opposed to the pure procedural decisions to move to stage two of the process), and consider what caused that treatment. Again we consider what was in Mr Tasker's mind, both consciously and subconsciously, but not his motive. Here, the question is whether the unfavourable treatment of what occurred at the capability meeting and in the outcome letter to it was because the claimant was not able to work more than 4 hour shifts and/or because he could not work nights (we have already concluded that those things did arises in consequence of his disabilities).[85]In relation to the communications about the possible removal of the night shift exemption in the rig and de-rig role, we have analysed what was said in detail and compared it to what was said in evidence and in various other documents (e.g. in the grievance process). What was said at the meeting on 8 July was factually accurate (in that Mr Tasker did not know and the potential new role was a smaller team therefore there could be difficulties with this). In relation to the 22 August 2024 outcome letter however, the stated position on night shifts was incorrect in that it said that the claimant definitively could not avoid night shifts on the rig and de-rig role (we say incorrect because at that time it had not been investigated: we are not saying that it could or could not have been done, simply that Mr Tasker did not know at that stage).[86]The question is as to whether the unfavourable treatment of communicating that position arose as a consequence of the claimant not being able to work more than 4 hour shifts, and/or as a consequence of the claimant not being able to work nights. It arose in practical terms as a consequence of the claimant having identified a possible alternative role and Mr Tasker wanting to manage the claimant’s expectations before the claimant did a trial in that role. To arise as a consequence of the "something" it does not have to be the sole reason and there may be a series of links. However it does need to have a significant (more than trivial) influence on the unfavourable treatment.[87]The only reason nights were mentioned (in both the meeting and the outcome letter) is because the claimant cannot work nights: had he not already had an exemption from working nights then we consider that Mr Tasker would not have specifically referenced the point). The unfavourable treatment is telling him that the role may not be able to (at the meeting) and/or cannot (in the outcome letter) accommodate an exemption from night shifts. The reason he was given for this was that the team was smaller and might not be able to sustain it. However the question is then whether the information was considered relevant to pass to him because he cannot work nights. The paragraph in the outcome letter refers specifically to his flexible working arrangement and therefore had in mind the fact that the claimant was unable to work nights. It did arise because of his inability to work nights, which was in consequence of disability.[88]Turning to the other content of the meeting on 8 July 2024 and/or outcome letter dated 22 August 2024, the respondent informed the claimant of its concerns about his absence levels, ability to perform his role and of the possibility of dismissal because he was unable to perform his current contractual role. The reason that he was unable to do so was that he was unable to work more than four hour shifts. This unfavourable treatment was therefore because of something arising in consequence of his disability.[89]As to the claimant being informed that Band V and logistics were not suitable for him, this did not occur because of the claimant’s inability to work more than four hour shifts and/or because of his inability to work nights. Those things occurred because of Mr Tasker’s view that the claimant would be unable to perform those other roles because of the physical issues that the claimant had with the movements involved in those roles. This aspect of the claimant’s complaint fails.[90]As to the claimant being informed that the respondent would not contact his consultant for him, whilst we have found that this could have been done through Occupational Health, we have not found that the reason why the comment was made was because of his inability to work more than four hours and/or his inability to work night shifts. This aspect of the claimant’s complaint fails. Does the respondent show that the treatment was a proportionate (that is reasonable and necessary) means of achieving a legitimate aim namely(a) The effective organisation and safety of the workforce(b) The effective and safe running of the production line(c) Appropriate management of the claimant’s employment contract(d) Maintaining operational and business efficiency, and/or(e) Proper planning of business activities, manpower and resources[91]The final question is whether the treatment can be justified as a proportionate means of achieving a legitimate aim. The burden of proof here sits with the respondent to show justification. The claimant accepts that the five listed aims are legitimate aims, and the Tribunal agrees.[92]As to proportionality, we address first the procedural steps of inviting the claimant to the meeting, holding the meeting and delivering an outcome. These were steps that were taken in connection with the legitimate aims, in particular as a way of trying to progress finding a solution that would enable the claimant to return to full efficiency, thereby supporting the effective organisation and safety of the workplace, the effective and safe running of the production line, appropriate management of the employment contract, operational and business efficiency and proper planning of business activities, manpower and resources.[93]Turning next to whether they were no more than necessary to achieve that aim, and whether a fair balance had been struck, the claimant suggests that other things could have been done instead which he says would have been less discriminatory, specifically:a. Exploring and/or trialling roles in rig and de-rig, logistics and/or V Line (or other potential roles) first, including Ms Mak assessing the logistics role from a physiotherapy perspective;b. Referral to Occupational Health;[94]At this stage, the advice from the physiotherapist on a number of occasions was that the claimant would not be able to carry out a role that involved the kinds of repetitive / prolonged bending and overhead work.[95]In relation to exploring and trialling roles, at this stage it was clear that the claimant was not going to be able to get back to his contracted role on a full time basis any time soon and he had confirmed that he did not intend to do so. Other Band L roles had been investigated and ruled out by this stage.[96]The next stage is, as the claimant suggests, to explore other roles in other areas and the claimant is right that this should be looked at. However, having exhausted the claimant's own department and the roles within Mr Tasker's remit it was appropriate and reasonably necessary to progress to the formal policy and the search for other roles in other departments would be done under that policy. The poor performance and capability process is a four stage process, with dismissal only taking place at stage 4. If there were a requirement to conclude investigations into alternative roles before invoking the process, then there would in effect be little point to having a four stage process. It was appropriate to start the process at a point where consideration would then be given to other alternative roles and we accept Mr Tasker's evidence that this would be done under the formal policy.[97]We acknowledge that Mr Tasker accepted in evidence that he could have asked Laura Mak to assess logistics first, trial V line and/or write to the claimant’s consultant (through Occupational Health). However the employer does not have to demonstrate that no other proposal is possible and in our view this comment by Mr Tasker in evidence does not align with his other evidence, which we have accepted, that the formal process would be invoked when all roles within that Band had been exhausted (as they had).[98]It was reasonably necessary to move to that stage at that point in time, with a view to then conducting further investigations into potential alternatives under the policy.[99]In relation to the potential referral to Occupational Health, we do conclude that the respondent should have sought that advice, with a view to Occupational Health contacting the claimant's GP and/or consultant. However, we consider this to be distinct from the decision to hold a capability meeting with the claimant, as we conclude that this was an appropriate step to take during the capability process rather than before invoking it. Whilst it should have been done, we conclude that it should have been done alongside the next stage of the capability process.[100]For the avoidance of doubt, we also consider that the respondent could and should, through the process, have explored logistics and not simply relied on Mr Tasker's personal assessment of that area, however we conclude those steps are steps that it would be appropriate and reasonably necessary to take at the same time as the capability process was ongoing and not before invoking it.[101]Therefore, in relation to the procedural steps of inviting the claimant to the meeting, holding the meeting, and issuing an outcome, the claimant’s claim fails as this process amounted to a proportionate means of achieving a legitimate aim.[102]Turning next to the substance of what was said in the meeting and/or in the outcome letter:a. In relation to the communication during the meeting about the possibility that the rig and de-rig role might not be able to accommodate an exemption from night work, at this stage it had not been investigated and given the smaller size of that department, it was reasonable for Mr Tasker to want to address it. We have not found that the claimant was entitled to automatically be moved into this role without night work if that could not be accommodated: in that scenario whilst he could not be forced to do night work given his disabilities, the position might be that the rig and de-rig role would therefore not be suitable for him as a result of the need for night work. Telling the claimant about this possibility was connected to the legitimate aims identified by the respondent, and we conclude was no more than necessary to achieve that aim. It was important that the claimant understood the possibility that the adjustment might not be able to be accommodated and in raising that possibility this was a fair balance between the need to accomplish the legitimate aim and the disadvantage caused to the claimant).b. In relation to the communication in the outcome letter that said definitively that it would not be possible to exempt the claimant from night work in the rig and de-rig role, we have concluded that this was not factually correct. It cannot be appropriate and reasonably necessary to communicate that the claimant cannot work nights in that role when that had not at that point been assessed and/or taken to the Plant Council. There was a less discriminatory course of action available: to communicate, as was done on 8 July 2024, that there was a possibility that night work may not be able to be accommodated and to set out a proposal for how that would be assessed. Balancing the needs of the claimant and the respondent, whilst it was proportionate to manage the claimant’s expectations and set out the potential concern as to whether night work could be exempted, it was not proportionate to indicate that it definitively could not be at that stage. The claimant’s claim succeeds in this regard.c. In relation to the other content of the meeting on 8 July 2024 and/or outcome letter dated 22 August 2024, it was appropriate and reasonably necessary in the context of a capability process to inform the claimant of the respondent’s concerns about his absence levels, ability to perform his role and the possibility of dismissal. In fact, had the respondent not informed the claimant of this then it could have been criticised for failing to provide that information to him. This was merely stage two in a four stage process and further consideration would be given to alternative employment before any final decisions were taken. The information was provided to the claimant in the context of pursuing the legitimate aims, and we conclude that the means used were no more than necessary in circumstances where the claimant accepts that he could not perform his role and a search for alternative roles in Band L had been exhausted. Balancing the needs of the claimant and the respondent, this was a proportionate means of achieving a legitimate aim.[103]The claimant’s claim therefore succeeds solely in relation to the complaint that he was treated unfavourably because of his inability to work nights (which arose in consequence of his disability), in respect specifically to the content of the letter dated 22 August 2024 (and not for the avoidance of doubt in relation to what was said to him at the 8 July 2024 meeting).[104]A remedy hearing has been listed for 5 February 2026 and a Notice of Hearing has already been sent to the parties (it was listed at the end of the liability hearing on the basis that it would be vacated should the claimant be unsuccessful in his claims). That hearing will now go ahead. The parties are encouraged to consider whether that hearing is required, or whether they are able to agree what award should be paid to the claimant. This is particularly so given that the claimant seeks only a lower Vento band award for injury to feelings and a bonus payment. Should the parties agree the appropriate figure, they should write to the Tribunal to request that the hearing be vacated (or if settled through ACAS that fact). Approved by: