Mr G Gordon v G Gigg and Sons Ltd: 8000188/2022 Mr G Gordon v G Gigg and Sons Ltd: 8000188/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000188/2022

Between

Mr G GordonClaimant

G. Grigg and Sons LimitedRespondent

Before

Employment Judge Smith

Mr K McGuire (instructed by Advocate) for respondent

Date 24 June 2024

JUDGMENT

[1]The Respondent’s application to strike out the Claimant’s claims for a failure to comply with an order of the Tribunal is refused.

[2]The Claimant’s claim of indirect disability discrimination is dismissed upon its withdrawal by him. ETZ4(WR)

[3]Reasons having been given orally at the hearing, written reasons will not be provided unless they were asked for at the hearing or are requested in writing within 14 days of the date of this judgment being sent to the parties.

[1]The claimant had the protected characteristic of disability by reason of the following conditions at the material time (being between 1 July 2020 and 16 November 2022), within the terms of section 6 Equality Act 2010: i. Anxiety and depression, and ii. Emphysema and silicosis.

[2]The urological condition suffered by the claimant did not amount to a disability for the purposes of section 6 Equality Act 2010 during the material time.

REASONS

[1]The claimant presented claims of disability discrimination and unfair dismissal. The respondent does not accept that the claimant was a disabled person during the material period. It was agreed that the material period was 1 July 2020 to 16 November 2022. A preliminary hearing was listed to determine whether the claimant was a disabled person during that period in terms of section 6 Equality Act 2010 (‘EA’). The claimant gave evidence on his account and was cross examined by the respondent. A joint bundle of documents was produced.

[2]The claimant relied upon three separate conditions as amounting to a disability which were:a. Anxiety and depression

b. Silicosis and emphysema, and

c. Persistent urinary tract infections.

[3]Having listened to the evidence, and submissions made by both parties and having considered the documentation to which reference was made, the Tribunal made the following findings in fact. Findings in fact

[4]The claimant is a 53-year-old man. He worked as a Stonemason for the respondent for around 13 years.

[5]The claimant was diagnosed with silicosis and emphysema around 2008. He has continued to suffer from these conditions since. He has been prescribed two inhalers since 2010, one which he uses daily and the other as required.

[6]He attends the Department of Respiratory Physiology at the Western Hospital annually for tests in relation to these conditions. His condition remains stable as was reported at 9 September 2022. These are progressive lifelong conditions which are likely to deteriorate over time and which impact his respiratory system.

[7]The claimant spent a period of five days in hospital around March 2018 as a consequence of pneumonia and was off work for two and a half months.

[8]These conditions cause the claimant to be tired during the day and affect his breathing. He struggles for breath if he exerts himself physically. He does no physical exercise. He can walk no more than 200 yards on a flat surface without stopping and a shorter distance if there is any incline. He struggles to walk upstairs or lift anything significant. He struggles to carry shopping upstairs. His sister generally does his shopping for him.

[9]The claimant could carry out his work duties carving stone but found it difficult to work off site. His workplace was a 10-15 minute walk from his house. He found climbing ladders very difficult which caused him to get out of breath.

[10]The claimant started having difficulties passing urine in 2018. He was prescribed medication for this but in July 2020 the difficulties worsened and the claimant was admitted to hospital where he was catharised. When he was released from hospital he had to wear a catheter for around 8 months. During this period he suffered from a series of urinary tract infections. He continues to suffer from these infections and is on long term antibiotics.

[11]The claimant was added to a waiting list for a procedure to address his difficulties called a TURP which was carried out in October 2022. Until then the claimant had to self-catheritise around five times a day to release urine. While the claimant stopped self catheritising for a period, he subsequently had to recommence and continues to have to self-catheritise twice a day and continues to develop UTIs.

[12]The claimant’s urological condition caused him anxiety, particular in relation to the ability access to clean toilet facilities at work.

[13]The claimant was required to shield during the beginnings of the COVID pandemic from 27 March until 1 August 2020. During that period the claimant’s sister did his shopping for him and he did not leave the house. He had no contact with anyone other than his sister during that period. The claimant had previously had issues with his mental health in 2010. The isolation during this period had a detrimental effect on the claimant’s mental health.

[14]The claimant attended his GP on 27 July 2020 complaining of depressed mood and difficulties sleeping. He was prescribed mirtazapine to ‘reduce anxiety/improve sleep pattern’.

[15]The claimant attends his GP regularly regarding his various conditions. He attended again on 19 October 2020 where he informed the GP that the mirtazapine was not assisting him. The notes also narrate ‘not enjoying much, struggling to sleep, really down, not got a great appetite, no energy, mind racing, ‘on the edge’ which reflected how the claimant was coping at that time. The claimant was prescribed citalopram.

[16]The claimant had a further consultation with his GP on 17 December 2020 where he reported no change in his mental health. The note records ‘ongoing difficulty sleeping – racing thoughts and wakes frequently through the night – this seems to be due to urinary frequency, eating – mostly ready meals, lack of social contact – was shielding for a long time. Prev saw sister at weekends but now she just drops of shopping for him. Not working due to current mood. No thoughts of suicidality or self-harm, no alcohol.’ The GP increased the claimant’s dose of citalopram to 30 mg.

[17]The claimant’s dose of citalopram was subsequently increased to 40 mg and he continued on that dose until summer of 2023 when his was prescribed a different medication.

[18]The claimant was informed on 12 October 2023 that he was now entitled to adult disability payment. This award was a standard rate Daily Living component and the claimant was not entitled to a mobility component.

[19]The claimant’s sick notes during the material period referred to low mood, and anxiety and depression.

[20]The claimant provided a disability impact statement to the Tribunal and the respondent on 18 May 2023.

[21]During the material period, the claimant suffered from anxiety and depression which impacted upon his ability to socialise; to prepare food for himself (he mainly ate ready meals provided by his sister); his ability to function during the day (he often spent the day with the television on or tried to sleep) and he found it difficult to concentrate. He relied on his sister to assist with his shopping and household tasks.

Relevant law

[22]Section 6 EA provides that a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day to day activities. Schedule 1 of the EA sets out further detail of the basis on which the issue of disability should be determined. Guidance on matters to be taken into account in determining questions relating to the definition of disability was also provided in 2011.

[23]The Tribunal was referred by Counsel to Goodwin v Patent Office

1999 ICR 302

, Morgan Stanley International v Posavec

UKEAT/209/13/BA

and Primaz v Carl Room Restaurants and others

EAT/137/20/JOJ

all of which were considered by the Tribunal in making its determination. Issues to determine

[24]Following the approach in Goodwin, the Tribunal is required to consider in relation to each of the conditions put forward by the claimant whether:a. They amounted to a physical or mental impairment;

b. Any impairment affected the claimant’s ability to carry out normal day to day activities;

c. Whether any adverse condition was substantial, and

d. whether any adverse condition was long-term.

[25]The respondent’s position appeared to be that they accepted that the claimant suffered from the respiratory and urinary tract infections conditions. They did not accept that the claimant suffered from anxiety and depression and appeared to suggest that as these conditions were self-reported, there was insufficient evidence to determine that the claimant did in fact suffer from these conditions. In any event it was said that any conditions or impairments the claimant did have did not have a substantial long-term adverse impact on his ability to perform normal day to day activities. The respondent’s position is that even if the claimant was a disabled person at the material time, it did not and could not reasonably have known that he was disabled. Discussion and decision Anxiety and depression

[26]The Tribunal accepted the claimant’s evidence that he suffered from anxiety and depression from around July 2020 and continues to suffer from this condition. The Tribunal was also conscious that he had been prescribed medication in relation to these conditions since that time. While it was noted that his fit notes sometimes referred to ‘low mood’ and sometimes ‘depression’, the Tribunal did not consider this to contradict the claimant’s evidence. The Tribunal also noted that the claimant’s medication was increased over a period to what was said to be the maximum dose. The anxiety and depression from which the claimant suffers is an impairment and has had a long-term impact on the claimant given that he continues to have this condition three years later. The Tribunal was also satisfied that the condition had a substantial impact on the claimant’s ability to perform normal day to day activities.

[27]In particular, the Tribunal accepted the claimant’s evidence that over this period he did not socialise with anyone other than his sister and indeed that he only saw her irregularly. He did not go out other than for a short walk. He only ate ready meals in the microwave which had been provided by his sister. His sister did his washing for him. He had difficulty sleeping. He felt worthless. While he had the television on most days when he was at home, the Tribunal accepted his evidence that this was different from actually watching it which he did not always do. He stayed in bed a lot of the time either trying to recover from a sleepless night or because he did not want to get up. As was recorded in his GP notes, he had no energy, his mind was racing and he felt ‘on the edge’. He had difficulty concentrating.

[28]The Tribunal should also take into account how the claimant might have been without medication. In the event, that was unnecessary, as the Tribunal was satisfied that even with medication, the condition of the claimant had a substantial adverse impact on the claimant’s ability to perform normal day to day activities. In those circumstances, the Tribunal finds that the claimant is a disabled person as result of the impairment of anxiety and depression amounted for the purposes of section 6 EA. Respiratory conditions

[29]Turning to the respiratory conditions suffered by the claimant, the respondent appeared to suggest that as there was a report in 2009 which stated that the condition was mild and reports in 2022 that the condition was stable, there had been no change in the condition between those years. That did not accord with the claimant’s evidence, accepted by the Tribunal, which was that his condition had become worse over the years. The report in 2009 made no reference to the claimant having been prescribed inhalers which it is reasonable to presume were subsequently provided because the claimant was struggling to cope without them. The Tribunal accepted the claimant’s evidence that his conditions caused him fatigue, and that he could only walk a short distance on the flat and less on an incline. He struggles to walk upstairs and has difficulty carrying shopping or any weight bearing activities. He did not do any physical exercise. The Tribunal noted that the claimant walked around a mile to work and that he used an inhaler once a day and then another when necessary. He was required to shield during COVID because of the risk to his health should he be infected with this.

[30]Taking all these factors into account the Tribunal was satisfied that the emphysema and silicosis from which the claimant suffers is an impairment, that it is long term and that it had a substantial adverse effect on the claimant’s ability to perform normal day to day activities during the material period. As such it also amounts to a disability for the purposes of section 6 EA. Urological condition

[31]The Tribunal then turned to consideration of the claimant’s condition in relation to urinary tract infections. The Tribunal accepted, and it was not in dispute, that the claimant suffered from difficulties which resulted in a requirement for cathertisation. There was also no dispute that the claimant regularly suffered from urinary tract infections. These infections have continued to recur over a number of years, despite intervention in terms of a medical procedure and the claimant being prescribed long term antibiotics.

[32]However, there was little evidence from the claimant as to how this condition impacted him on a daily basis. The Tribunal had no doubt that the condition must be uncomfortable and inconvenient and accepted that it caused him anxiety. However, it was not clear on what basis it affected his ability to perform normal day to day activities. The Tribunal accepted that the condition would have reasonably caused him anxiety about the ability to use toilet facilities which were hygienic and that no doubt the condition caused him pain.

[33]Notwithstanding this, the Tribunal was not satisfied that the condition had an adverse impact on his ability to perform normal day to day activities. While it may have contributed to the anxiety and depression from which he suffered it did not appear to the Tribunal that of itself it was an impairment which amounted to a disability for the purposes of section 6. Therefore, the Tribunal finds that this condition did not amount to a disability.

[34]In all these circumstances, the Tribunal was satisfied that the claimant was a disabled person by virtue of the impairments of anxiety and depression and the respiratory conditions from which he suffers.

[35]The case is listed for a final hearing and parties indicated that preparations were in the final stages for that hearing. Therefore, no further orders were required. It should be noted that the respondent indicated that it will continue to maintain that it did not have the requisite knowledge of the claimant’s disability status during the material period.

Introduction

[36]If so, were there steps that were not taken that could have been taken by the respondent to avoid any such disadvantage, including waiving the requirement in the claimant’s case?

[37]If so, would it have been reasonable for the respondent to have to take those steps at any relevant time? Remedy issues

[38]Would the claimant still have been dismissed at some relevant stage even if there had been no discrimination? If so, should a reduction be made to any award of compensation as a result. Findings in Fact

[39]This Judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to decide if the claim succeeds or fails. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues to be determined. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.

[40]The respondent is a building contractor, undertaking building, rough casting, plastering, slating and stone masonry.

[41]GB and LF are currently the sole directors of the respondent. GB deals with the day to day operational matters. He is a Quantity Surveyor. LF deals with administration, such as accounts, invoicing and wages. Up to 9 November 2022, there were two other directors. The consent of those directors was required for any major decisions, such as hiring or dismissing staff.

[42]The respondent has around 35 employees, including around 6 stonemasons. Whilst that it is the generic term, there are different types/specialities of stonemason, including Banker Masons and Fixer Masons. Each have their own specific set of skills and expertise, and each undertake differing roles. For example:a. Banker Masons are usually located in a workshop. They cut, carve and shape stone into the requisite size and shape for projects; and

b. Fixer Masons generally travel to and work on client sites. They fix the (often very large and heavy) stones, which have been prepared by the Banker Mason, onto buildings, as well as replace, repair and restore stonework that already exists on sites.

[43]The claimant is a highly skilled Banker Mason. He completed his apprenticeship as a Banker Mason and thereafter worked as a Banker Mason for over 10 years, in a firm which only conducted banker masonry (the stones then being passed to a separate firm for building/fixing). The claimant commenced employment with the respondent on 29 October 2001, as a Banker Mason. He was not given a Statement of Particulars of Employment at that stage, or a job description. The claimant worked exclusively as a Banker Mason for the respondent. While other stonemasons employed by the respondent occasionally assisted him, he was the only individual who worked solely as a Banker Mason. He worked almost exclusively in the respondent’s yard throughout his employment, only occasionally attending client sites, for example when required to take measurements/templates so that he could then cut/carve replacement stones in the yard. He was seen by the respondent as very gifted and highly skilled in carving stone - a specialist in a dying trade. The claimant himself took great pride in and satisfaction from his work. He often took photographs of stones he had carved and shared them with his family.

[44]Unlike other stonemasons employed by the respondent, the claimant was paid, not by reference to an hourly rate, but by reference to the amount of stone he carved, which was assessed on a weekly basis.

[45]In 2006 he signed, but was not given a copy of, a Statement of Particulars of Employment in relation to his employment with the respondent. This stated that he was a stonemason and that ‘the nature of your employment requires your place of work to be at any of the Company’s client sites to meet the needs of the business.’ He signed a further Statement of Employment Particulars, replicating these clauses, when the respondent became a limited company in 2010 and was provided with a copy of that document. He raised concerns, on being asked to sign the statement, stating that he was a Banker Mason, rather than a ‘stonemason’. He was assured that the company knew this and there would be no change to his duties. After signing the statement he continued to work exclusively as a Banker Mason for the respondent, based in the respondent’s yard.

[46]In around 2008, the claimant was diagnosed with emphysema (damage to the air sacs in the lungs) and silicosis (a long-term and progressive lung disease caused by inhaling silica dust - silica being naturally found in certain types of stone). These conditions impact the claimant’s breathing, particularly if he exerts himself physically. He finds climbing ladders and lifting heavy objects particularly difficult and this causes him to become breathless.

[47]Since 2008, the claimant has attended annual assessments at the Western General Hospital in Edinburgh in relation to these conditions. The respondent was aware of this, as he required to take time off work to do so and showed the respondent copies of his appointment letters, to secure the time off work which he required.

[48]The respondent engage the services of IOM Consulting Limited (IOM) to conduct health surveillance assessments on their employees on a regular basis, normally every 2 years. The claimant attended a health surveillance assessment with IOM in 2009, at which a chest x-ray was conducted. The xray confirmed that the claimant had mild silicosis and emphysema, but that there had been no significant change in the past year. They sent a letter to the claimant confirming this. Their letter also and stated ‘I have recommended that your employer arrange that you are further assessed by an occupational physician to assess whether or not you can safely continue to work with silica…In accordance with your consent I have advised management of my assessment and have recommended that you are seen by an occupational physician. This assessment would be to assist in identifying if you have a work related health problem and to provide advice about your fitness to work. Until that assessment has been completed, I am unable to provide a diagnosis or to advise about your fitness to work.’ The respondent was advised of this, as stated by IOM in their letter to the claimant.

[49]In 2013 the respondent received a further report from IOM, following a further health surveillance assessment, which again confirmed that the claimant had respiratory conditions, namely silicosis and emphysema.

[50]At no point did the respondent arrange any occupational health assessments in relation to the claimant.

[51]On three or four occasions during the claimant’s employment he was laid off due to lack of stone to carve in the yard. He, as the respondent’s only Banker Mason, was the only stonemason to be laid off. Other stonemasons, who were Fixer Masons, continued to work on client sites. The claimant was not asked to work on sites when there was no stone available: he was laid off.

[52]In around March 2018 the claimant developed pneumonia. He was hospitalised for 5 days and absent from work for 8 weeks.

[53]Prior to 2020, whenever the claimant was absent from work, for any reason, he returned to working in the yard, as a Banker Mason, following the period of absence.

[54]Given his health conditions, in March 2020 the claimant became extremely concerned about catching Covid-19. He raised this with GB, highlighting that he was at greater risk of developing serious complications if he caught covid, due to having silicosis and emphysema. Whilst 24 March 2020 was the first day of lockdown in Scotland, the respondent continued to operate, on the basis that they were providing essential services.

[55]GB informed employees that they could take time off if they were concerned about catching covid, but if they did they would receive statutory sick pay only, not furlough pay, as the respondent was continuing to operate and had decided not to furlough anyone.

[56]At the end of March 2020 claimant received a letter from the Scottish Government advising him to shield for 12 weeks. This was due to the fact that he had silicosis and emphysema and these respiratory conditions meant there was a significant risk of him becoming severely unwell if he caught covid. He decided to shield from 2 April 2023. DM visited the respondent’s premises and informed them of this.

[57]In the claimant’s absence another employee, JM, a Fixer Mason who previously worked on client sites but sometimes assisted the claimant, carried out the claimant’s duties. SK assisted him for a period of 8-10 weeks on a particular project which finished just before the trades holiday in July 2020.

[58]Towards the end of June 2020, the claimant decided he would be able to return to work the following month, shortly before the end of the 12 week shielding period. He needed to do so financially and felt it would be safe for him to do so, as he would be able to walk to work (it took him 10-15 minutes) and he felt his risk of catching covid would be low working in the yard, where he generally worked on his own.

[59]The claimant called LF. He informed her that his period shielding was coming to an end and he hoped to be able to return to work, after the trades holiday, on 20 July 2020. LF informed him that he would require to speak to GB about this and a meeting was arranged for a few days later, on 2 July 2020, which was the last working day before the respondent’s two week shutdown for the trades holiday.

[60]The claimant attended the meeting on the afternoon of 2 July 2020. GB and LF were present. GB explained the practices implemented by the respondent to seek to prevent the spread of covid and it was agreed that the claimant would return to work on 20 July 2020. At the end of the meeting GB stated that the claimant would, initially at least, be working on client sites, when he returned, not in the yard. The claimant was shocked at this. He asked what he would be doing. GB stated that he would be building stone (i.e. the work of a Fixer Mason). The claimant stated that he was a Banker Mason, had only ever been employed as that, was not qualified to work as a Fixer Mason and had no experience of doing so. He stated that being on site would increase the risk of him catching covid, as he would require to share transport and on site facilities. GB stated that if the claimant didn’t want to work on client sites, he could take more time off. GB refused to engage in further discussion stating ‘some of us have been working hard for the last 3 months and we would like to get home to enjoy the summer holidays’. The claimant left the meeting feeling shocked, upset and bewildered. He discussed matters with his family and concluded that he could not return to work on that basis.

[61]Had the claimant returned to work as a Fixer Mason, he would have been paid an hourly rate based on hours worked and this would have resulted in a decrease in his weekly take home pay.

[62]The claimant telephoned the respondent at approximately 08:15 on 20 July 2020 to inform them that he would not be returning to work and would continue to shield. With assistance from DM he then wrote a letter, dated 27 July 2020, to GB and LF, setting out his position – namely that he was a Banker Mason and could not do building work. He requested clarification of how long it would be before he could return to his role as a Banker Mason and requested that a meeting be arranged to discuss matters further, as he was looking forward to returning to work.

[63]GB responded on 3 August 2020 noting that the claimant was continuing to shield but that as Scottish Government guidelines state that shielding ended on 1 August 2020 he would no longer be paid SSP from that date. They highlighted that his Statement of Employment Particulars stated he was a ‘stonemason’ and the respondent could require him to work at any client site. They reiterated that he would be required to work on client sites when he returned and gave no timescale for when he would/could return to his role as Banker Mason, as the claimant had requested in his letter. The letter concluded by stating ‘Given our previous meeting with yourself and the points confirmed above we see no purpose in holding a further meeting with you to discuss any of the issues raised. We would welcome your return to work and request that when you feel you are in a position to do so you contact our office to agree a suitable date.’

[64]The claimant felt unable to return to work on the basis stated by the respondent. He had only ever worked as a Banker Mason. He had never worked as a Fixer Mason and did not have the skills and experience to do so. In addition, his medical conditions would prevent him doing so: firstly, as he could not climb ladders, as he would require to do in the course of working on sites building stone; and secondly, he was still at risk of becoming severely unwell if he caught covid and working on site (which would necessitate shared transport and facilities and involved contact with more people) significantly increased the risk of this.

[65]The claimant developed depression as a result of the respondent’s decision not to permit him to return to his role. He had been looking forward to returning to work and felt upset and worthless when the respondent would not allow him to do so. He also had financial concerns, as he had no income. He was certified as unfit to work as a result of depression by his doctor from 24 September 2020 to January 2021. Medical certificates confirming this were provided to the respondent every 28 days. From 5 January to 26 April 2021 the claimant was advised to shield again, during the second lockdown. He provided confirmation of this to the respondent by letter dated 8 January 2021.

[66]The respondent held a first welfare meeting with the claimant on 9 June 2021. This was the first contact they had had with him since the meeting on 2 July 2020 and subsequent letter of 3 August 2020. The claimant attended with his sister, DM. GB and LF were present for the respondent, together with VM. At the meeting there were some initial, limited, comments about the claimant’s health. GB then asked about the claimant’s thoughts about returning to work, making it clear that this would be a return to working on sites, not the yard. The discussion then focused on that, with GB repeatedly stating the claimant was a stonemason and could be asked to work anywhere, and the claimant stating that he had always been Banker Mason, he had worked in the yard for over 20 years, that he had not done, and could not do, building work and it would be more dangerous for him to work on sites. The claimant stated that he felt the company had taken umbrage at the fact that he had shielded. The respondent stated they would draw up a generic job description of a stonemason and provide a copy of this to the claimant for discussion. That was then sent to him on 24 June 2021.

[67]A further meeting took place on 6 August 2021, with the same attendees as before. There was no discussion about the claimant’s health. Instead, the meeting focused solely on the generic job description for a stonemason which had been drawn up and provided to the claimant. The claimant stated that it contained building work, which he had not done and could not do. It was reiterated that the claimant would require to work on sites when he returned to work and stated that, when he was ready to do so, an occupational health assessment would be undertaken. The claimant stated that, in the 20 years he had been employed, whenever he had been off and returned to work in the past, he had gone back to his role in the yard and he did not know why that could not be the case this time.

[68]On 28 September 2021, VM called the claimant. The claimant reiterated to her that he was fit to return to work in the yard as a Banker Mason, and would do so, but he could not work on sites. She stated that she would speak to GB and revert to the claimant, but she did not. The claimant received a letter from the respondent dated 30 September 2021, acknowledging his sick note from 7 September 2021 (for ‘low mood’ and a recent hospital admission), but then received no further contact from the respondent for over a year.

[69]On 1 February 2022, GB & LF requested the permission of the other two directors to terminate the claimant’s employment, stating that the claimant ‘chose not to continue working at the start of Covid despite us having in place Covid workplace practices which allowed us to continue working’. The relationship between GB & LF, on the one hand, and the other two directors, on the other, was acrimonious. The permission sought was not given. Instead, some clarification questions were asked in relation to the claimant’s position. Those questions were answered, with the GB & LF stating that ‘no valid reason had been provided for [the claimant’s] absence other than ‘low mood’. The other directors did not respond, or provide the permission sought, and the matter was not then pursued. On 9 November 2022, GB and LF became the sole directors of the respondent.

[70]By letter dated 16 November 2022, the claimant was invited to a meeting on 22 November 2022. The letter stated that the meeting was to discuss the claimant’s current medical condition, health and welfare and to assess options for the claimant returning to work. The letter stated that the discussions would include the matter of the claimant’s return into the role of stonemason and concerns the claimant had raised about his work location, as this was still a key matter relating to the claimant’s return to work. The claimant was informed that the meeting may result in the termination of his employment.

[71]The claimant had had an operation on 19 October 2022 and was certified as unfit to work until 30 December 2022 as a result. He remained willing to return to his role as Banker Mason at the end of that period.

[72]The meeting took place on 22 November 2022. The attendees of the meeting were the same as before. After a few introductory statements, GB asked the claimant if he was willing to return to work as a stonemason on sites. The claimant stated that he was a Banker Mason and only worked in the yard. He stated that he would come back to work in that role. The discussion continued regarding the parties’ respective positions, with no movement in either position. After a short adjournment, GB confirmed that the claimant’s employment was terminated due to the stalemate situation, caused by the claimant refusing to work as a stonemason on sites, according to his contract. VM stated that the claimant was not being dismissed on medical grounds or through disciplinary or redundancy, but due to his refusal to work on sites, which amounted to some other substantial reason for dismissal.

[73]The claimant’s dismissal was confirmed by letter dated 24 November 2022. He appealed against the decision to terminate his employment. An appeal meeting took place on 30 November 2022. The attendees were the same as the previous meetings. The claimant’s appeal was not upheld. He was informed of this on 1 December 2022.

[74]The claimant was extremely upset to have been dismissed from a role that he loved, particularly when he was ready, willing and able to return to it and had been for over two years. He has not sought, or undertaken, any work since his employment with the respondent ceased.

[75]When the claimant last worked, in March 2020, his average gross pay was £697.80 (net £528.66) per week. The respondent also contributed 2.5% of his gross pay to his pension.

[76]The claimant received universal credit from mid-May 2020.

[77]The claimant contacted Acas on 23 November 2022, the day after he was dismissed. He became aware at that point of the possibility of raising a claim in the Employment Tribunal. Early conciliation commenced on 23 November 2022 and continued to 8 December 2022. The claimant presented his claim form on 18 December 2022. He was not aware there were any time limits for presenting claims when he did so. Submissions

[78]The respondent produced a written submission, extending to 14 typed pages, which Mr O’Carroll spoke to. In summary, he submitted as follows:a. GB’s evidence should be preferred to that of the claimant;

b. The claimant was fairly dismissed for SOSR, which arose as a result of the claimant’s refusal to return to work, unless it was to work in the yard;

c. The claimant could have been dismissed for refusing to return to work on 20 July 2020, 9 June or 6 August 2021. Alternatively, the claimant contributed to his dismissal by his conduct. A 100% reduction should be made to any award;

d. The respondent did not know, and could not reasonably have been expected to know, that the claimant would be placed at a substantial disadvantage by a requirement to work on sites. Adjusting that requirement, so that the claimant did not require to do so, would not have been reasonable;

e. The complaints of direct discrimination, discrimination arising from disability and harassment have not been made out, particularly taking into account credibility; and

f. The discrimination complaints are timebarred.

[79]The claimant then made a brief oral submission. In summary, he stated that:a. The respondent was well aware of his medical conditions, from what he told them, his requirement to attend hospital appointments and the IOM reports;

b. He would still have been employed if he had been allowed to return to work in July 2020;

c. He could not have returned to work building stone however, due to his health issues and the fact that he has never done that type of work; and

d. He has suffered physically, mentally and financially as a result of the respondent’s treatment of him. Relevant Law Direct Discrimination

Relevant Law

[80]Section 13(1) EqA states: ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’

[81]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed

[2009] IRLR 884

the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council

[1990] IRLR 288

and

(ii) in Nagaragan v London Regional Transport

[1999] IRLR 572

. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not inherently discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another

[2009] UKSC 15

[82]For direct discrimination to occur, the relevant protected characteristic needs to be a cause of the less favourable treatment ‘but does not need to be the only or even the main cause’ (paragraph 3.11, EHRC: Code of Practice on Employment (2011)). The protected characteristic does however require to have a ‘significant influence on the outcome’ (Nagarajan v London Regional Transport

1999 ICR 877

). Discrimination arising from disability

[83]Section 15 EqA states: “(1) A person(a) (A) discriminates against a disabled person

(b) (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.”

[84]Guidance on how this section should be applied was given by the EAT in Pnaiser v NHS England

[2016] IRLR 170

, EAT, paragraph 31. In that case it is pointed out that ‘arising in consequence of’ could describe a range of causal links and there may be more than one link. It is a question of fact whether something can properly be said to arise in consequence of disability. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.

[85]There is no need for the alleged discriminator to know that the ‘something’ that causes the treatment arises in consequence of disability. The requirement for knowledge is of the disability only (City of York Council v Grosset

[2018] ICR 1492

, CA). Failure to make reasonable adjustments

[86]Section 20 EqA states: ‘Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.’

[87]The duty comprises three requirements. The first requirement is a ‘requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.’ The third requirement is a ‘requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid’.

[88]Section 21 EqA provides that a failure to comply with the first or third requirement is a failure to comply with a duty to make reasonable adjustments and that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

[89]Further provisions in Schedule 8, Part 3 EqA provide that the duty is not triggered if the employer did not know, or could not reasonably be expected to know that the claimant had a disability and that the provision, criteria or practice is likely to place the claimant at the identified substantial disadvantage. Harassment

[90]Section 26(1) EqA states: ‘(1) A person(a) (A) harasses another

(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’

[91]Section 26(4) EqA states: ‘(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;

(b) the other circumstances of the case;

[92]There are accordingly 3 essential elements of harassment claim under section 26(1), namely(i) unwanted conduct,

(ii) which relates to a relevant protected characteristic and

(iii) that has the proscribed purpose or effect.

[93]The Equality and Human Rights Commission: Code of Practice on Employment (2011) explains, at paragraphs 7.9-7.11, that ‘related to’ has a broad meaning. It occurs where there is a connection with the protected characteristic. Conduct does not have to be ‘because of’ the protected characteristic.

[94]In cases where disability related harassment is asserted, the mere fact that unwanted conduct occurs at a time when a claimant satisfies the definition of a disabled person does not mean that it is related to disability. Something more will be required to demonstrate this. As stated by His Honour Judge Taylor in the case of Worcestershire Health and Care NHS Trust v Mrs A Allen

[2024] EAT 40

‘It is important to note that it is the “conduct” that must be “related to” the protected characteristic. Thus, if it is asserted that a failure properly to investigate a grievance alleging discrimination constitutes harassment it is not sufficient that the grievance was related to the protected characteristic, the failure properly to investigate the grievance, which constitutes the conduct, must be related to the protected characteristic. Accordingly, it will generally be necessary to consider the mental process of the person who considered the grievance and decide whether the failure to investigate was related to the protected characteristic, such as if the person considered that protection of the protected characteristic is of no importance and so did not treat the grievance as seriously as other types of grievance would have been treated.’ Burden of proof

[95]Section 136 EqA provides: ‘If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.’

[96]There is accordingly a two-stage process in applying the burden of proof provisions in discrimination cases, explained in the authorities of Igen v Wong

[2005] IRLR 258

, and Madarassy v Nomura International Plc

[2007] IRLR 246

, both from the Court of Appeal. The claimant must first establish a first base or prima facie case of direct discrimination or harassment by reference to the facts made out. If the claimant does so, the burden of proof shifts to the respondent at the second stage to prove that they did not commit those unlawful acts. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the complaint should be upheld. If the explanation is adequate, that conclusion is not reached.

[97]In Madarassy, it was held that the burden of proof does not shift to the employer simply by a claimant establishing that they have a protected characteristic and that there was a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, of themselves, sufficient material on which the tribunal ‘could conclude’ that, on a balance of probabilities, the respondent had committed an unlawful act of discrimination. The Tribunal has, at the first stage, no regard to evidence as to the respondent’s explanation for its conduct, but the Tribunal must have regard to all other evidence relevant to the question of whether the alleged unlawful act occurred, it being immaterial whether the evidence is adduced by the claimant or the respondent, or whether it supports or contradicts the claimant’s case, as explained in Laing v Manchester City Council

[2006] IRLR 748

, an EAT authority approved by the Court of Appeal in Madarassy. Time Limits

[98]The time limit for a claim of discrimination is provided by section 123 EQA, which states: 1. ‘…proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable. 3. For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period;’ Unfair Dismissal

[99]S94 ERA provides that an employee has the right not to be unfairly dismissed.

[100]It is for the respondent to show the reason (or principal reason if more than one) for the dismissal (s98(1)(a) ERA). ‘Some other substantial reason’ is one of the permissible reasons for a fair dismissal (section 98(1)(b) (section 98(1)(b) ERA).

[101]If satisfied of the reason for dismissal, it is then for the Tribunal to determine, the burden of proof at this point being neutral, whether in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA). In applying s98(4) ERA the Tribunal must not substitute its own view for the matter for that of the employer, but must apply an objective test of whether dismissal was, in the circumstances, within the range of reasonable responses open to a reasonable employer (Iceland Frozen Foods Limited

[1982] IRLR 439

). Discussion & Decision Discrimination Arising from Disability

[102]In relation to the claims of discrimination arising from disability the Tribunal started by referring to section 15 EqA.

[103]Section 15(2) states that section 15(1) will not apply if the employer did not know, and could not reasonably have been expected to know, that the claimant had the disability. The Tribunal concluded that the respondent knew the claimant had silicosis and emphysema. GB accepted the respondent had received a report from IOM confirming this in 2013. In addition, the Tribunal concluded that the respondent had also received a report from IOM stating this in 2009 and that the claimant had informed them that he had these medical conditions: when he requested time off to attend annual hospital appointments; in the context of his concerns about the covid pandemic at the start of 2020; and, via his sister, when he started to shield.

[104]The Tribunal accepted that the claimant required to shield during the Covid19 pandemic, and that he required to do so as a result of the fact that he has silicosis and emphysema, both of which were previously found to constitute disabilities for the purposes of s6 EqA.

[105]The Tribunal then considered each asserted act of discrimination arising from disability with reference to the guidance in Pnaiser, considering whether the asserted treatment occurred, whether it amounted to unfavourable treatment (i.e. was it something about which a reasonable person would complain?) and, if so, whether the fact that the claimant required to shield significantly (i.e. more than trivially) influenced that treatment. The Tribunal reached the following conclusions:a. In March 2020 GB told the claimant ‘you can take time off if you want but you will not get furloughed’. The Tribunal concluded that this occurred and amounted to unfavourable treatment: it was something about which a reasonable person would complain. The Tribunal then considered the reason for the unfavourable treatment and whether the fact the claimant required to shield significantly influenced that treatment. The Tribunal concluded that it did not. The claimant had not started to shield at that point, or informed the respondent that he would be doing so. In addition, the Tribunal concluded that GB would have said this to anyone who wished to take time off at that time – whether due to shielding, self-isolating because they or someone in their household had caught covid, or simply because they had concerns about working at the start of the pandemic.

b. In a meeting on 2 July 2020 GB said to the claimant ‘some of us have been working hard for the last 3 months and we would like to get home to enjoy the summer holidays’. The Tribunal concluded, on balance, that this occurred and amounted to unfavourable treatment: it was something about which a reasonable person would complain. The Tribunal then considered the reason for the unfavourable treatment and whether the fact the claimant required to shield influenced that treatment. The Tribunal concluded that the first part of the comment, namely ‘some of us have been working hard for the last 3 months’ was significantly (more than trivially) influenced by the fact that the claimant had been shielding. The inference from the comment was that some had not been working hard throughout the period, namely the claimant, who had been at home shielding.

c. In the same meeting on 2 July 2020 GB and LF did not listen to the points raised by the claimant. The Tribunal concluded that this occurred. The claimant stated that he could not do building work on sites, had never done so. He stated that being on site would increase the risk of him catching covid, as he would require to share transport and on-site facilities. GB refused to listen to the claimant’s points, shutting down the conversation. The Tribunal concluded that this amounted to unfavourable treatment: it was something about which a reasonable person would complain. The Tribunal then considered the reason for the unfavourable treatment and whether the fact the claimant required to shield significantly influenced that treatment. The Tribunal concluded that it did not. Rather, the Tribunal concluded that, having made a decision as to what the claimant was to do on his return, GB was unhappy with the claimant seeking to challenge this and simply did not wish to engage in further discussion.

d. In the same meeting on 2 July 2020 GB and LF changed the claimant’s job description. The Tribunal concluded that the claimant’s job description was changed at the meeting. The claimant had commenced employment with the respondent, in 2001, as a Banker Mason. In that role he worked, almost exclusively, in the respondent’s yard. He had worked in that role for 20 years, since the commencement of his employment. Whilst he signed statements of Particulars of Employment in 2006 and 2010, both of which stated that his job title was ‘Stonemason’, doing so did not change the duties which he undertook on a day to day basis as a Banker Mason. # The claimant stated he had never carried out building work on site. GB stated he did, listing sites where he stated the had done so – 4 of which were during the 2000s and 4 of which were in the period from 2015-17. GB stated that, on each occasion, the claimant had worked on site for a few weeks, but otherwise worked solely in the yard as a Banker Mason. SK however stated that he was only aware of the claimant working on one site, 20 years ago, the details of which were, understandably, vague. The Tribunal preferred the evidence of the claimant and SK and found that, other than on very exceptional and rare occasions, the claimant worked solely as a Builder Mason in the yard. The Tribunal accepted SK evidence was that his role as Fixer Mason (which he had undertaken his apprenticeship in and had undertaken since) was quite different to the claimant’s role as Banker Mason and a Banker Mason could not simply start working as a Fixer Mason. Stating to the claimant that, on his return he would be required to instead carry out building work on client sites, the role of a Fixer Mason, constituted a fundamental change to the claimant’s role and, albeit that it had not been committed to writing previously, his job description. The Tribunal concluded that this amounted to unfavourable treatment: it was something about which a reasonable person would complain.

[106]The Tribunal then considered the reason for the unfavourable treatment and whether the fact the claimant required to shield significantly (more than trivially) influenced that treatment. The Tribunal noted that the claimant had always been permitted to return to his role as Banker Mason whenever he had been absent in the past. The only difference on this occasion was that he had been shielding. Whilst GB asserted in evidence that the individual covering the claimant’s role was involved in a significant long term project, which could not be guillotined, the Tribunal did not accept that this was the case as at 2 July 2020. Instead, the Tribunal accepted SK’s evidence that the particular project which he and JM had been working on while covering the claimant’s duties, was completed on or immediately prior to 2 July 2020. There was accordingly no reasonable basis demonstrated for the respondent’s refusal to permit the claimant to return to his role. Taking the lack of any credible explanation for changing the claimant’s role, GB’s comment at the meeting (as set out in paragraph 105.b. above), and the statement made in February 2022 that the claimant ‘chose not to continue working’, rather than requiring to shield, the Tribunal concluded that the fact that the claimant required to shield was the reason why the respondent changed the claimant’s role and indicated that he would not be permitted to return to his role as Banker Mason.

[107]The Tribunal then considered justification in relation to points b. & d. above, and whether the unfavourable treatment complained of was a proportionate means of achieving a legitimate aim, for the purposes of section 15(1)(b) EqA.

[108]The legitimate aim relied upon by the respondent was ‘to continue to operate its business profitably and to fulfil contracts which it had undertaken’. The Tribunal accepted that the respondent genuinely had that aim and that it was legitimate.

[109]In order to be proportionate the measure has to be both an appropriate means of achieving the legitimate aim and also reasonably necessary in order to do so (Homer v Chief Constable of West Yorkshire Police

[2012] IRLR 601

). The Tribunal requires to balance the reasonable needs of the respondent against the discriminatory effect on the claimant (Land Registry v Houghton and others

UKEAT/0149/14

). There is, in this context, no ‘margin of discretion’ or ‘band of reasonable responses’ afforded to respondents (Hardys & Hansons v Lax

[2005] IRLR 726

, CA).

[110]The Tribunal concluded that it was not an appropriate means of achieving the stated legitimate aim to make the comment stated at b., or to change the claimant’s job description, nor was it reasonably necessary to do so. Making the comment did not further the stated aim in any way. Changing the claimant’s role and job description, and requiring him to work as a Fixer Mason instead, did not further the stated aim. As indicated above, the project which had been covered by others in the claimant’s absence, had completed on or immediately prior to 2 July 2020. The claimant, a skilled and experienced Banker Mason, was able to pick up any other ongoing projects with little/no handover: he had done so before when returning to work and neither he, nor others such as SK (who had been covering some of the claimant’s duties) could foresee any difficulties in the claimant doing so on this occasion. Simply allowing the claimant to return to his role would have achieved the legitimate aim.

[111]The Tribunal accordingly concluded that the respondent has not discharged the burden on them to prove objective justification. The claimant’s complaints, of discrimination arising from disability in relation to points b. & d. above accordingly succeed. Direct Discrimination

[112]In relation to the asserted acts of direct discrimination, the Tribunal considered whether the alleged treatment occurred, whether it amounted to less favourable treatment and if so, what the reason for that treatment was: was it because of disability?a. In a meeting on 2 July 2020 GB said to the claimant ‘some of us have been working hard for the last 3 months and we would like to get home to enjoy the summer holidays’. As indicated in paragraph 105.b. above, the Tribunal concluded that this occurred. The Tribunal concluded however that GB would have said this to anyone who had been off for the 3 months prior to that date. The claimant accordingly did not demonstrate that he was treated less favourably than others would be treated in the same, or not materially different, circumstances. As he has not established less favourable treatment, the burden of proof did not shift to the respondent. Even if the burden of proof had shifted to the respondent, the Tribunal was satisfied that the comment was made because the claimant had been absent from work, not because the claimant had anxiety, depression, silicosis or emphysema. For these reasons, the claimant’s complaint of direct discrimination in relation to his does not succeed.

b. In the same meeting on 2 July 2020 GB and LF did not listen to the points raised by the claimant. As indicated in paragraph 105.c. above, the Tribunal concluded that this occurred. The Tribunal concluded that GB would have treated any other employee who was seeking to challenge his decision at that time in the same manner. The claimant accordingly did not demonstrate that he was treated less favourably than others would be treated in the same, or not materially different, circumstances. As he has not established less favourable treatment, the burden of proof did not shift to the respondent. Even if the burden of proof had shifted to the respondent, the Tribunal was satisfied that GB acted in this manner because, having made a decision as to what the claimant was to do on his return, GB was unhappy with the claimant seeking to challenge this. It was not because the claimant had anxiety, depression, silicosis or emphysema. For these reasons, the claimant’s complaint of direct discrimination in relation to his does not succeed.

c. In welfare meetings on 9 June 2021 and 6 August 2021 GB insisted that the claimant return to work, on sites. The Tribunal concluded that this occurred, but that GB would have treated any other employee who had taken 12 weeks off to shield in the same manner. The claimant accordingly did not demonstrate that he was treated less favourably than others would be treated in the same, or not materially different, circumstances. As he has not established less favourable treatment, the burden of proof did not shift to the respondent. Even if the burden of proof had shifted to the respondent, the Tribunal was satisfied that GB acted in this manner because the claimant had taken 12 weeks off shielding. It was not because the claimant had anxiety, depression, silicosis or emphysema. For these reasons, the claimant’s complaint of direct discrimination in relation to his does not succeed.

d. GB and LF dismissing the claimant on 22 November 2022. This conduct was established. The Tribunal concluded that GB & LF would have treated any other employee who was refusing to return to work to undertake the duties which GB directed them to do in the same way. The claimant accordingly did not demonstrate that he was treated less favourably than others would be treated in the same, or not materially different, circumstances. As he has not established less favourable treatment, the burden of proof did not shift to the respondent. Even if the burden of proof had shifted to the respondent, the Tribunal was satisfied that the claimant was dismissed because he was refusing to undertake the duties which GB directed him to undertake. It was not because the claimant had anxiety, depression, silicosis or emphysema. For these reasons, the claimant’s complaint of direct discrimination in relation to his does not succeed.

[113]Given these findings, the Tribunal concluded that the claimant’s complaint of direct discrimination does not succeed. Reasonable Adjustments

[114]The duty to make reasonable adjustments arises when an employer knows, or ought to know, that the employee had a disability and that the PCP is likely to place the employee at the identified substantial disadvantage.

[115]The Tribunal reached the following conclusions in relation to this complaint:a. The respondent applied the PCP asserted: they required employees, including the claimant, to work on sites;

b. For the reasons set out in paragraph 103 above, the respondent knew that the claimant had silicosis and emphysema;

c. The claimant was placed at a substantial disadvantage by the PCP: i. As a result of having silicosis and emphysema, he found it particularly difficult to climb ladders (which was required when working on client sites). Doing so caused him to become breathless; and ii. As a result of having silicosis and emphysema, he was likely to become severely unwell if he caught covid and the risk of him doing so was significantly increased by the PCP, as he would require to share transport and on-site facilities.

d. The respondent knew, or ought reasonably to have known, that the claimant was likely to be placed at this disadvantage: As set out in paragraph 103 above, they were aware he had silicosis and emphysema and that he had been shielding as a result, having been advised by the Scottish Government to do so. Had they referred the claimant to occupational health, as IOM recommended in 2009, or requested further details from the claimant or IOM in relation to the impact of these conditions on the claimant, they would have readily ascertained that the claimant had particular difficulties climbing ladders, which was required working on client sites as a Fixer Mason, and that he was likely to become severely unwell if he caught covid and the risk of him doing so was significantly increased if he required share transport client sites and onsite facilities.

e. Waiving the requirement for the claimant to work on client sites would have reduced or eliminated the disadvantage which the claimant suffered: the claimant did not require to climb ladders when working in the yard and his contact with others was minimal, so the risk of him catching covid was significantly reduced.

f. It was practicable for the respondent to allow the claimant to work solely in the yard. Doing so involved little/no disruption to the respondent and it would have cost nothing. It would have been reasonable for the respondent to have taken that step: the claimant’s role was Banker Mason, a role which was conducted in the yard, not on client sites; he was previously absent for significant periods (for example when he had pneumonia) and was able to return to his role without difficulty; as a skilled and experienced Banker Mason he would have been able to resume his duties with a minimal handover from the individual(s) who covered his role in his absence; and in July 2020 those covering the work in the yard had just completed a project, so in fact there was minimal handover required.

[116]For these reasons, the Tribunal concluded that the respondent failed in its obligation to make reasonable adjustments. Harassment

[117]The Tribunal then considered each allegation of harassment, considering whether there was unwanted conduct, whether it related to disability and, if so, whether the conduct had the proscribed purpose or effect. The Tribunal was mindful that, before the burden of proof can shift to the respondent, the claimant requires to establish, on the balance of probabilities, that he or she has been subjected to ‘unwanted conduct’ which has the proscribed purpose or effect and must also adduce some evidence to suggest that the conduct could be related to disability.

[118]The Tribunal reached the following findings in relation to each alleged act of harassment:a. In a meeting on 2 July 2020 GB said to the claimant “some of us have been working hard for the last 3 months and we would like to get home to enjoy the summer holidays” The Tribunal concluded that this occurred, amounted to unwanted conduct and, reasonably, had the proscribed effect. The Tribunal considered the reason for the unwanted conduct and whether it was related to disability. As indicated in paragraph 105.b. above, the Tribunal concluded that the comment was made because the claimant had been shielding, which was related to disability: namely the fact that the claimant had silicosis and emphysema. The claimant’s complaint of harassment in relation to this accordingly succeeds.

b. In the same meeting on 2 July 2020 GB and LF did not listen to the points raised by the claimant; The Tribunal concluded that this occurred, amounted to unwanted conduct and, reasonably, had the proscribed effect. It was not however related to disability. Rather, as set out in paragraph 105.c. above, the Tribunal concluded that GB’s approach was due to his dissatisfaction with the claimant seeking to challenge his decision. It did not therefore amount to harassment related to disability.

c. In the same meeting on 2 July 2020 GB and LF changed the claimant’s job description. As set out in paragraph 105.d. above, the Tribunal concluded that the claimant’s job description was changed at the meeting. The Tribunal accepted that this amounted to unwanted conduct and, reasonably, had the proscribed effect. The Tribunal considered the reason for the unwanted conduct and whether it was related to disability. As indicated in paragraph 105.d. above, the Tribunal concluded that respondent changed the claimant’s role because the claimant had been shielding, which was related to disability: namely the fact that the claimant had silicosis and emphysema. The claimant’s complaint of harassment in relation to this accordingly succeeds.

d. In welfare meetings on 9 June 2021 and 6 August 2021 GB insisted that the claimant return to work, on sites. The Tribunal accepted that this occurred, amounted to unwanted conduct and, reasonably, had the proscribed effect. The respondent’s conduct was, in effect, a re-statement of the decision made in July 2020, that the claimant’s role would be changed and he would not be permitted to return to work as a Banker Mason. That decision was related to disability for the reasons set out in paragraph 118.c. above. As the rationale had not changed, this conduct was also related to disability. The claimant’s complaint of harassment in relation to this accordingly also succeeds.

e. GB and LF dismissed the claimant on 22 November 2022. This conduct was not disputed. The Tribunal concluded that it amounted to unwanted conduct and, reasonably, had the proscribed effect. The decision was taken to dismiss the claimant because he would not agree to the change in his role. The decision to change his role was related to disability for the reasons set out in paragraph 118.c. above. The decision to terminate his employment, because he would not agree to that change, was also therefore related to disability. The claimant’s complaint of harassment in relation to this accordingly also succeeds.

[119]The Tribunal accordingly finds that the claimant was subjected to harassment related to disability. Jurisdiction - Discrimination

[120]In relation to time limits, the Tribunal noted that the complaints which had been established were as follows:a. Discrimination arising from disability, on 2 July 2020;

b. Failure to make reasonable adjustments on 2 July 2020; and

c. Harassment related to disability on 2 July 2020, 9 June and 6 August 2021 and 22 November 2022.

[121]The same individuals were involved in each act and all the complaints related to the decision to change the claimant’s role, which had created a continuing discriminatory state of affairs. Time accordingly started to run from the date of the last act. As the last act occurred on 22 November 2022, the claim form, which was presented on 18 December 2022, was lodged timeously.

[122]Even if the Tribunal had not reached this conclusion however, it would have found that it was just and equitable to extend the time limits. The Tribunal has a wide discretion to allow claims to proceed, notwithstanding the fact that they are not submitted within 3 months of the date of the act to which the complaint relates, where the Tribunal is satisfied that they are submitted within ‘such other period as the employment tribunal thinks just and equitable’ (s123(1)(b) EqA).

[123]The Tribunal noted that the claimant was attempting to resolve matters internally with the respondent and was unaware of the ability to bring an Employment Tribunal claim or the time limits for doing so. The Tribunal considered that and the prejudice each party would suffer as a result of allowing or refusing an extension of time. The Tribunal noted that the claimant would be denied a right of recourse, if time is not extended, and that the respondent was able to respond to each of the allegations levelled against them, notwithstanding the fact that they were raised outside the requisite time period. Taking into account the prejudice which each party would suffer as a result of refusing an extension of time, and having regard to all the circumstances, the Tribunal was satisfied that the complaints were raised within such other period as was just and equitable and it would, therefore, have jurisdiction to consider the complaints, even if it had not determined that the acts established formed part of conduct extending over a period. Unfair dismissal

[124]The Tribunal considered whether the respondent had shown that the reason for the claimant’s dismissal was a ‘substantial reason of a kind such as to justify the dismissal of an employee holding the position which the [claimant] held’, as stated in s98(1)(b) ERA. The Tribunal accepted that the respondent dismissed the claimant as he refused to return to work on sites. The Tribunal accepted that this was a substantial, and potentially fair, reason for dismissal.

[125]The Tribunal considered s98(4) ERA. The Tribunal had to determine whether the dismissal was fair or unfair, having regard to the reason shown by the respondent. The answer to that question depends on whether, in the circumstances (including the size and administrative resources the employer is undertaking) the respondent acted reasonably in treating the reason as a sufficient reason for dismissing the employee. This should be determined in accordance with equity and the substantial merits of the case. The Tribunal was mindful of the guidance given in cases such as Iceland Frozen Foods Limited

[1982] IRLR 439

that it must not substitute its own decision, as to what the right course to adopt would have been, for that of the respondent. There is a band of reasonableness within which one employer might reasonably dismiss the employee, whereas another would quite reasonably keep the employee on. If no reasonable employer would have dismissed, then dismissal is unfair, but if a reasonable employer might reasonably have dismissed, the dismissal is fair.

[126]The Tribunal found that the respondent’s decision to dismiss the claimant fell outside the band of reasonable responses open to them in the circumstances. No reasonable employer would have dismissed the claimant in these circumstances. In reaching a conclusion, the Tribunal took into account a range of factors, as follows:a. The claimant had worked for the respondent, for approximately 20 years, as a Banker Mason;

b. The respondent still required a Banker Mason;

c. The claimant was willing to return to that role from 20 July 2020 until he was dismissed on 22 November 2022;

d. The respondent would not permit the claimant to return to work as a Banker Mason and there was no reasonable basis that refusal. They could have permitted him to return to that role on 20 July 2020, at a time when the project which had been worked on in the claimant’s absence had just concluded, or at any point thereafter. As a highly skilled and very experienced Banker Mason, the claimant could have resumed his role as a Banker Mason with minimal handover, as he had done after absences in the past;

e. The respondent knew, or ought to have known, that the claimant could not work as a Fixer Mason on client sites. He had no experience of doing so and his medical conditions meant that he would find it extremely difficult, if not impossible, to do so. His refusal to return to work to undertake that role was reasonable in the circumstances;

f. GB made the decision that the claimant should not return to his role and should instead work on client sites as a Fixer Mason. He maintained that entrenched and intransigent position thereafter. At the point the claimant was dismissed there were alternatives to dismissal available, as there had been since July 2020, namely permitting the claimant to return to work in the role he had always undertaken for the respondent as a Banker Mason. He could either have simply returned to that role or, given the length of the claimant’s absence, the respondent could have considered allowing the claimant to gradually build up his hours on his return to work, gradually taking over new projects, while individual covering the role completed those which he had started. The respondent did not consider these options, maintaining their position that, if the claimant returned to work, he would be required to work on client sites.

[127]The Tribunal therefore concluded that the respondent did not act reasonably in treating the claimant’s refusal to return to work in a different role, as a sufficient reason for dismissal. His complaint of unfair dismissal accordingly succeeds. Remedy – Unfair Dismissal

[128]Having found that the claimant was unfairly dismissed, the Tribunal moved on to consider remedy.

[129]The Tribunal firstly considered whether it was appropriate to make any adjustments to the basic or compensatory award, and reached the following conclusions: Polkey

[130]Given that the Tribunal’s finding that the dismissal was unfair is not based on to procedural irregularities, a reduction in any compensation awarded on the basis of Polkey is not appropriate. Acas Code

[131]The Tribunal do not make any finding that either party unreasonably failed to comply with the Acas Code. No uplift/reduction in compensation is accordingly appropriate. Contribution

[132]The Tribunal then considered:a. whether the claimant’s conduct before the dismissal was such that it would be just and equitable to reduce the basic award (s122(2) ERA); and

b. whether the claimant’s dismissal was to any extent caused or contributed to by the actions of the claimant, such that it would be appropriate to reduce the compensatory award by a proportion which the Tribunal considers is just and equitable, having regard to that finding (s123(6) ERA).

[133]The Tribunal concluded that the claimant’s actions were not culpable or blameworthy in any respect and that no reduction should be made to any award on this basis. The Tribunal also concluded that there was it was not just and equitable to reduce the basic award. There was no conduct on the part of the claimant which would merit this. Basic Award

[134]Given the claimant’s age (52), service (21 years), weekly gross wage (£697.80) and the applicable gross weekly pay limit (£571), the basic award is £14,560.50. Compensatory Award

[135]The claimant received a payment in lieu of notice. He has not sought or secured alternative employment since the termination of his employment with the respondent. In these circumstances the Tribunal concluded that it was not just and equitable to make any award in relation to loss of earnings and make a compensatory award of £500 for loss of statutory rights only.

[136]For the avoidance of doubt, the Tribunal did not accept the respondent’s submission that the claimant could have been fairly dismissed for gross misconduct at some earlier point, for example on 20 July 2020 when he did not attend work: He telephoned the respondent at 08:15 on that day to indicate that he was continuing to shield in accordance with Government guidance. Similarly, his refusal to return to work on 9 June and 6 August 2021 was, the Tribunal concluded, reasonable in the circumstances: it did not amount to gross misconduct. Remedy - Discrimination & Harassment Financial Loss

[137]The claimant experienced financial losses as a result of the respondent’s decision to change his role (which constituted harassment and discrimination arising from disability) and failure to make reasonable adjustments to the new role, as he could not return to work. He could have returned to work on 20 July 2020, if the respondent had not changed his role, or had made reasonable adjustments. He would then have shielded again from 5 January to 26 April 2021. Thereafter, aside from a period in July 2021, where he was admitted to hospital and unable to work for 2 months, and his operation on 19 October 2022 which also rendered him unable to work for a short period, he would have continued working. There was therefore a total of 92.5 weeks where the claimant lost wages, up to the date he was ultimately dismissed, as a result of the respondent’s discriminatory decision to change his role and their failure to make reasonable adjustments.

[138]His weekly wage in that period would have been £528.66 net, plus an employer’s pension contribution of £17.45 per week. The claimant would therefore have received £50,515.17 in that period (92.5 x (£528.66 + £17.45)). He received universal credit payments in that period totalling £7,630.65 (taking into account the applicable rates), plus 2 weeks SSP in July 2020, totalling £191.70. His financial losses were accordingly £42,692.82.

[139]Interest of £9,516.40, from 11 September 2021 (the midpoint of the discriminatory acts) to date (1,017 days @ 8%) is also payable.

[140]For the reasons set out above, under ‘Compensatory Award’ the Tribunal concluded that the claimant has not demonstrated any financial loss as a result of the termination of his employment. It is therefore not just and equitable to make any award for financial loss in relation to that. Injury to Feelings

[141]The claimant gave oral evidence in relation to injury to feelings. The Tribunal’s findings in relation to this are set out at paragraphs 60, 65 & 75 above. He experienced depression as a result of the respondent’s actions and was ultimately dismissed, losing a job he loved, and was highly skilled at, after more than 20 years’ service.

[142]In the circumstances, the Tribunal was satisfied that an award at the lower of the middle Vento band was appropriate, namely £12,000. Interest of £2,674.85, from 11 September 2021 to date (1,017 days @ 8%) is also payable.