Mr G Allan v Caledonian MacBrayne Crewing (Guernsey) Ltd: 8000236/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000236/2023

Venue Glasgow

Hearing 26 October 2023

Between

Mr G AllanClaimant

Caledonian MacBrayne Crewing (Guernsey) LimitedRespondent

Before

Employment Judge M Kearns

Ms G Todd (instructed by Solicitor) for respondent

Date 17 June 2024

JUDGMENT

The Judgment of the Employment Tribunal following the Preliminary Hearing is that:(1) The claimant was disabled as defined in the Equality Act 2010 with effect from mid- January 2023, at the 12 month anniversary of the onset of his bursitis. Claims of disability discrimination in respect of acts or omissions prior to that date are dismissed.

(2) The claimant’s employment was terminated by seven weeks’ notice for the purposes of section 97(1)(a) Employment Rights Act 1996. The effective date of termination of employment was accordingly 3 March 2023 and the claim of unfair dismissal is in time.

(3) Acts of alleged disability discrimination prior to 25 January 2023 are time barred. Any issues in relation to conduct extending over a period or just and equitable extension of time are reserved for determination at the full hearing if appropriate.

(4) A full hearing of the remaining claims (merits and remedy – if appropriate) will be fixed. Date listing stencils will be sent out to parties for completion and return.

REASONS

[1]The claimant was employed by the respondent as a ship’s cook from 5 April 2017 until his dismissal for capability (ill health) in early 2023. On 24 April 2023, the claimant notified ACAS of proposed tribunal claims under the early conciliation rules. On 26 April 2023, he received an ACAS early conciliation certificate. On 23 May 2023, the claimant presented an application to the Employment Tribunal in which he claimed unfair dismissal and disability discrimination. Issues for determination at Preliminary Hearing

[2]Today’s Preliminary Hearing was listed to determine the following two preliminary issues:(i) whether the claimant is, and was at the material time, a person disabled within the meaning of section 6 of the Equality Act 2010; and

(ii) whether the tribunal has jurisdiction to hear any or all of the claimant 's claims, on the grounds of time bar.

[3]At the time of the acts of disability discrimination alleged in this case, the claimant was suffering from bursitis, a condition which affected his right hip. The respondent does not accept that the claimant was disabled as defined in the Equality Act 2010 at the relevant time.

[4]It was necessary to establish the dates of the acts complained of. From the ET1, the Note of the PH on 24 July 2023; the claimant’s further and better particulars and our discussions at the outset of this hearing, the claimant’s case involves the following claims. (The claimant confirmed the approximate dates of those claims in his evidence. For clarity, I have indicated here the result of the above Judgment for each head of claim.):(a) Direct discrimination under section 13 Equality Act 2010. The claimant stated that the less favourable treatment complained of was that set out at paragraph 11 of the Note of the PH on 24 July 2023, namely: (1) at first he was not allowed a phased return to work (August 2022); (2) when a phased return was granted to him, he was deployed on other vessels on which he did not wish to work, which he thought was unfair and due to his disability (14 September to mid-December 2022) and (3) he informed his manager Mr. Smith that though he had a disability he considered himself capable of working (12 January 2023). (This head of claim is affected by the claimant’s lack of disability status at the time of the acts complained of. It is therefore dismissed.)

(b) Discrimination arising from disability under section 15 Equality Act 2010. The claimant stated that the ‘unfavourable treatment’ was: (i) not being allowed a phased return to work on his own vessel and being required instead to carry out the phased return on other vessels with longer crossings with the result that he was never able to show the respondent he could do his job. (14 September 2022 to end December 2022). (This claim is also affected by the claimant’s lack of disability status at the time of the acts complained of and is dismissed.) (ii) In his ET1, the claimant raises his dismissal for a capability (ill health) reason and the refusal of his appeal on 20 March 2023. (The claimant was dismissed on 7 weeks’ notice which expired on 3 March 2023 – see below). The ‘something arising in consequence of his disability’ appeared to be the restrictions on his ENG1 certificate and his inability to have them lifted and demonstrate to the respondent that he could do his job. (This head of claim falls within the period when the claimant was disabled as defined. The claim is also in time. It can proceed to the full hearing.)

(c) Alleged breach of a duty to make reasonable adjustments contrary to sections 20 and 21 Equality Act 2010. The claimant stated that two PCPs had been applied to him by the respondent: (i) not allowing him to do a phased return on his own vessel with the ENG1 restrictions as adjustments (14 September 2022) (This head of claim is dismissed); and (ii) requiring him to remain in a seafaring role (14 September to 20 March 2023) (This claim will depend upon whether and if so, when any duty to make a reasonable adjustment arose and whether it was after mid-January 2023).

Evidence

[5]The parties lodged a joint bundle of documents ("J") and referred to them by page number. The claimant gave evidence on his own behalf. The respondent called Ms Natasha Kerr, HR Business Partner. Both the claimant and Ms Kerr impressed me as honest witnesses, who gave their evidence with care and readily made appropriate concessions. There were no real disputes about the facts of what happened. Findings in Fact

[6]For the purposes of determining the preliminary issues, the following material facts were admitted or found to be proved.

[7]The respondent is the employer of the crew-members who work aboard Caledonian MacBrayne ferries on the west coast of Scotland. The claimant was employed by the respondent from 5 April 2017 until early 2023 as a ship’s cook. Prior to 23 February 2022, he normally worked as a Chief Cook on the MV Argyle, which sails between Wemyss Bay on the Scottish mainland and Rothesay on the Isle of Bute.

[8]In or about mid-January 2022, the claimant began to experience a lot of pain in and around his right hip. He had never experienced this before. The claimant found it hard to sleep due to the pain and discomfort. He could not sit or stand for long periods but had to get up and walk around. If he went for a walk, he would have to stop every two hundred yards and take a rest. He was walking with a limp. On or about 17 February 2022, the claimant went to his GP, who diagnosed bursitis and told him that he ought to rest for three to four weeks. The GP gave the claimant a cortisone injection and told him it might take around four weeks to work. The claimant eventually found some improvement from the injection. On 23 February 2022 the claimant was signed off by his GP as unfit to work. His GP prescribed Naproxen 250mg (an anti-inflammatory drug) and Tramadol 10mg, which helped with the pain. The claimant is still taking these drugs. The claimant was referred to the respondent’s OH provider, who carried out a telephone consultation on 5 April and reported on 8 April 2022 (J74). The report stated that claimant had had a lot of pain in his right hip from bursitis. The report explained: “The bursa is a small fluidfilled sac which acts like a cushion between tendons and bone, and it is this that is currently inflamed and causing him a lot of pain and discomfort. He is currently struggling to sleep at night, due to discomfort. He is managing to walk short distances and explains that he has a bit of a limp.” The report recorded that the claimant was having steroid injections into his hip which was providing some relief along with weekly physiotherapy input. The report confirmed that the claimant was prescribed anti-inflammatories and oral pain relief medication which he was taking daily. The medical treatment (steroids, anti-inflammatories and pain relief) helped the claimant by relieving pain and reducing inflammation. But for the treatment, the effect of the impairment on the claimant’s ability to carry out day to day activities would have been more pronounced over the relevant period in terms of the effect on his ability to sleep, walk and bend down without excessive pain.

[9]The claimant remained off sick from 23 February until 14 September 2022. He was assessed by his GP on 8 July 2022 and certified (J68) as able to benefit from a phased return to work with effect from that date. On 15 August 2022, the respondent obtained a further occupational health report on the claimant’s condition. The report stated: “Mr. Allan has been diagnosed with Bursitis of his right hip and is experiencing severe pain in his right gluteal (buttock) muscles. He told me that he can walk however he cannot walk far distances and needs to take frequent rest breaks. He cannot stand for prolonged periods of time and has restricted movement due to the pain. He is currently under the care of his GP and has been prescribed medication to alleviate his symptoms of pain. Mr. Allen is also currently attending physiotherapy sessions and is following a home exercise programme. ……. He mentioned that his sleep is often interrupted as he experiences pain whilst lying on his right side.” The report stated that the claimant was not fit to return to his role but that management might want to consider temporary redeployment into an adjusted role with lighter duties. The report recommended a phased return. The following further adjustments were recommended: No prolonged standing or sitting tasks; allow regular rest breaks throughout the claimant’s shift; No repetitive bending or low floor work tasks; No heavy lifting or strenuous manual handling tasks; He can continue with his master duties; Regular management contact.

[10]At a capability review meeting on 18 August 2022 under the respondent’s absence policy, the claimant discussed the findings of the OH report with his manager, Mr Smith. The claimant told Mr Smith he wished to try returning to work on a phased basis. Mr Smith told the claimant that he would first need to obtain an ENG1 Seafarer Medical Certificate (issued by the Maritime and Coastguard Agency) confirming he was fit to return. The meeting was adjourned for this purpose. The claimant obtained an ENG1 certificate (J73) covering him for one year. The certificate stated he was fit for seafaring work subject to the following restrictions: No prolonged standing; regular breaks; no heavy lifting.

[11]The capability review meeting was reconvened on 8 September 2022 when the ENG1 was discussed. Mr Smith told the claimant that it would not be possible to accommodate many of the suggested OH adjustments in the claimant’s role of cook on the MV Argyle. The claimant’s phased return instead took place on a larger vessel in the role of senior catering ratings (“SCR”). The claimant had a period of medical suspension from 26 October to 22 November 2022. Otherwise, from 14 September until around mid-December 2022, the claimant undertook a phased return on various vessels.

[12]In or around November 2022, the claimant carried out a 4 week phased return on the MV Isle of Lewis. He was reassessed by the ENG1 doctor following this but the restrictions were not removed from his ENG1 certificate. The respondent invited the claimant to a capability review meeting on 12 January 2023. During the meeting, the claimant stated he wished to return to his role of Chief Cook regardless of the restrictions on his ENG1. Following an adjournment at the end of the meeting, Mr Smith delivered to the claimant the following outcome (J123): “We will be making a recommendation to Guernsey that your employment is terminated on grounds of capability. You will receive an outcome letter detailing the reasons for the decision. You will have the right to appeal…… Natasha confirmed payment details: 12 weeks pay as compensation for loss of earnings (non-taxable) a week’s pay for every year they have been in the business up to a maximum of 12 (taxable) any outstanding AL/call back”.

[13]The following day (13 January 2023) the claimant received a letter signed “Caledonian MacBrayne Crewing (Guernsey) Limited”. The letter was headed ‘Termination of Employment on Ill Health Grounds” (J124). It stated: “Further to your meeting on 12 January 2023 with Gordon Smith, Retail Development Manager of CalMac Ferries Limited, and Natasha Kerr, HR Business Partner of David MacBrayne HR (UK) Limited, I now write to confirm our decision to terminate your employment with Caledonian MacBrayne Crewing (Guernsey) Limited on grounds of capability.” The letter did not stipulate - in so many words - the date the termination was effective. It did not say that termination was effective immediately. Towards the end of the letter, after a narration of events, a paragraph stated: “After careful consideration of the above, the decision has been taken to terminate your employment on the grounds of capability due to your long term incapacity and due to the unlikelihood of your return in the foreseeable future.” There was then a section entitled: “Outstanding Leave and any other final payments”. The section stated: “Your final monies will include full pay up until 12 January 2023, any outstanding leave you may have accrued, 12 weeks compensation for loss of earnings (non-taxable) and 7 weeks payment in lieu of notice (taxable). Your final monies will be paid directly into your bank account on 28 January 2023. Your final pay slip and P45 will be sent to you as soon as possible after this date.”

[14]The claimant appealed against his dismissal on 21 January 2023. At the end of January 2023, the claimant received his normal salary into his bank account, together with a payslip (J134) showing that he had been paid his month’s salary as normal. There was no payment in lieu of notice, no final compensation payment, nor was he paid his annual leave. The claimant did not receive a P45. The claimant assumed that this was because he was still employed pending the respondent hearing and deciding his appeal. He telephoned his trade union representative and told him he was still getting a monthly wage. His representative said: “did you not get your 12 weeks?” The claimant said “No”. His representative told him: “Just leave it for now because we’re appealing anyway”.

REMEDY

[15]The claimant attended an appeal hearing on 21 February 2023 along with his trade union representative. During the appeal hearing, the claimant said he would be willing to drop down to an SCR grade with the restrictions still on his ENG1 in order to return to work. He was hopeful his appeal would succeed. At the end of February 2023, the claimant again received his pay as normal along with a pay slip for February (J133). He had still not received the monies described in the letter of 13 January, nor had he received a P45. He spoke to his trade union about it and asked whether they should be getting the Employment Tribunal forms. His union told him that if he was still being paid his wages, he could not bring a claim for unfair dismissal. He had to wait until the employment terminated.

[16]From the respondent’s perspective, what had happened was that when the claimant’s employment was terminated on 12 January 2023, the payroll cut off for the month had already passed (on 6 January). The claimant’s termination was not therefore processed that month. However, another mistake was also made in that the respondent omitted to action the claimant’s leaver form. The result of this was that the claimant’s salary continued to be paid to him as normal. However, no one contacted the claimant to inform him that this was a mistake and the claimant assumed that he was still employed pending the outcome of his appeal.

[17]The respondent wrote to the claimant on 20 March 2023 informing him that his appeal was not upheld (J129). They did not take the opportunity to explain to the claimant in that letter that a mistake had occurred in relation to his pay. At the end of March, the claimant received a final pay slip (J133). This showed the remainder of his notice pay (described as “cash in lieu”) and showed various adjustments. It also paid to the claimant money in respect of annual leave accrued but untaken. The claimant understood that his employment had terminated on 20 March 2023, when he received the letter from the respondent informing him that his appeal was not upheld. This understanding by the claimant was the effective cause of him notifying ACAS and presenting his claim when he did. The claimant received his P45 one or two weeks after 28 March 2023.

[18]When the claimant received the appeal outcome he was on holiday in Majorca. After he got home, around 24 March he telephoned the Employment Tribunal and asked could he take his employer to a tribunal. The person he spoke to asked if he had an ACAS certificate. He said no and they sent him a link.

[19]On 24 April, the claimant notified ACAS of proposed tribunal claims under the early conciliation rules. On 26 April 2023, he received an ACAS early conciliation certificate. The claimant drafted his ET1 tribunal claim form himself. He still understood he had 3 months less a day from 20 March to submit his claim. He googled disability discrimination and spoke to his wife about it. (The claimant’s wife is a schoolteacher.) The claimant did not find it straightforward to fill in the form and he tried to get advice about it. He talked to his union to see if they could help him. They told him to contact Acas and the employment tribunal and to get the forms and to “make sure he filled them in right”. The claimant and his wife filled in the ET1 form together as best they could. They had difficulty with the way some of it was worded and they spent time looking things up. On 23 May 2023, the claimant presented his application to the Employment Tribunal in which he claimed unfair dismissal and disability discrimination. He believed the time limit for his claims was three months less a day from the end of his employment on 20 March 2023. Although he put 13 January 2023 as the end date of his employment on his ET1 form and referred to that date in correspondence, he believed his employment had ended on 20 March 2023 when he lost his appeal, or at least that that was the date when time started to run. Indeed he continued to believe this until he received an email from the respondent’s solicitor in July 2023 suggesting that his tribunal claim was time barred.

[20]On 21 July 2023, in an email to the Employment Tribunal (J36), responding to the respondent’s solicitor’s suggestion that the claim was time barred, the claimant stated: “I am writing in response to the e-mail from the respondents representative with regards to the ACAS certificate and time constraint. I am presenting special circumstances, those are: I put in an appeal to the company on 21st January with regards to my employment being terminated on the 12th Jan. The appeal hearing was not heard until 21st February and I was advised I would hear their decision within 2 to 3 days. I was emailed again on the 1st March apologising about the delay to the response for the appeal and was advised I would have had a decision by the end of the following week. This did not happen, I finally received a response on the 20th March. During the time the appeal decision was taken I was still on full wages and my employment entitlements from my termination were not received until after the appeal hearing response (20th March). …………..As I was receiving full pay and the time the respondent took with the decision from the appeal, my understanding was that the 20th March was the time I was finally dismissed and I could then start the process for an employment tribunal and contract Acas.” Applicable Law Disability

Applicable Law

[21]Section 6(1) of the Equality Act 2010 is in the following terms: "6 Disability (1) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day to day activities.”

[22]Section 6 is supplemented by Schedule 1. Part 1 of that Schedule deals with the determination of disability and provides, so far as relevant as follows: "2. Long-term effects (1) The effect of an impairment is long-term if – (a) It has lasted for at least 12 months, (b) It is likely to last for at least 12 months, or (c) It is likely to last for the rest of the life of the person affected.”

[23]Section 6(5) Equality Act 2010 (“EqA”) empowers a Minster of the Crown to issue guidance on matters to take into account in deciding any question under subsection (1). In 2011 the Secretary of State issued 'Guidance on matters to be taken into account in determining questions relating to the definition of disability'. The Guidance does not impose any legal obligations in itself, nor is it an authoritative statement of the law. However, Schedule 1, paragraph 12 to the Act requires that a tribunal which is determining whether a person is disabled as defined must take into account any aspect of this Guidance which appears to it to be relevant. I therefore take it into account where relevant below. Time Bar

[24]Section 123(3)(a) Equality Act 2010 provides: “123 Time limits(1) Subject to section 140B, proceedings on a complaint within section 120 may not be brought after the end of – (a) The period of 3 months starting with the date of the act to which the complaint relates, or (b) Such other period as the employment tribunal thinks just and equitable.

(2) ….

(3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. ……………..

[25]Section 140B Equality Act 2010 provides so far as relevant as follows: “140B Extension of time limits to facilitate conciliation before institution of proceedings(1) This section applies where a time limit is set by section 123(1)(a)…...

(2) In this section – (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

(3) In working out when the time limit set by section 123(1)(a)……. expires, the period beginning with the day after Day A and ending with Day B is not to be counted.

(4) If the time limit set by section 123(1)(a)…… would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(5) The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section.”

[26]Section 97 of the Employment Rights Act 1996 (“ERA”) defines the effective date of termination as follows: “97 Effective date of termination (1) Subject to the following provisions of this section, in this Part ‘the effective date of termination’ – (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires, (b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect”

[27]Section 111(2) of the Employment Rights Act 1996 (“ERA”) states as follows: “Complaints to employment tribunal …………….. (2) Subject to subsection (3) an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal –(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.” Discussion and Decision Disability Status

[28]The onus is on the claimant to prove that he was disabled as defined in the Equality Act 2010 at the relevant time(s). The definition of disability in Section 6 of the Equality Act 2010 (as supplemented by Schedule 1) raises the following four questions:(1) Does the claimant have a physical or mental impairment?

(2) Does that impairment have an adverse effect on his ability to carry out normal day-to-day activities?

(3) Is the effect substantial?

(4) Is the effect long-term?

[29]Tribunals and courts are to give a purposive construction to the legislation, which is designed to confer protection rather than restrict it. I address each of these questions in turn. (1) Does the claimant have a physical or mental impairment?

[30]The onus is on the claimant to establish that he was suffering from a physical or mental impairment at the relevant time(s). As noted above, the ‘relevant time’ in this case differs from one head of claim to another over the period between 14 September 2022 and 20 March 2023. I accept the claimant’s evidence, supported by medical letters and OH and doctors’ reports that the claimant suffered from bursitis for the whole of the period from 14 September 2022 to 20 March 2023 and that this was a physical impairment. (2) Did that impairment have an adverse effect on his ability to carry out normal day- to-day activities?

[31]Paragraph A7 of the Guidance makes clear that "What it is important to consider is the effect of an impairment, not its cause." I accepted the claimant’s oral evidence that from mid-January 2022, his impairment had an adverse effect on his ability to carry out the normal day to day activities of sleeping, walking, sitting and bending down.

[32]In considering the effect of an impairment, is important to bear in mind the provisions of Schedule 1, paragraph 5(1) to the Equality Act 2010. This provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, 'likely' should be interpreted as meaning 'could well happen'. The practical effect of this provision is that, where a person is receiving treatment, the effect of the impairment on dayto-day activities is to be taken as that which the person would experience without the treatment or correction measures. Harvey on Industrial Relations and Employment Law at paragraph 167.04 describes the Tribunal’s task as follows: “Faced with evidence of medical treatment, the tribunal has to perform a difficult task. It must consider how the claimant's abilities had actually been affected at the material time, whilst being treated, and then to decide the effects which they think there would have been but for the treatment. The question is then whether the actual and deduced effects on the claimant's abilities to carry out normal day-today activities are clearly more than trivial (see Goodwin v The Patent Office

[1999] IRLR 4

[1999] ICR 302

, per Morison J).

[33]In relation to this issue, Ms Todd cited the case of Woodrup v London Borough of Southwark

[2003] IRLR 111

as authority for the proposition that it is not enough for a claimant to assert that he would be badly affected if treatment were to stop. Proof, preferably of an expert medical nature, is necessary. In considering the issue of disability, it is fair to observe that the courts have tended to place more insistence on expert medical evidence in mental impairment cases than in straightforward physical impairment cases like the present one. In Royal Bank of Scotland plc v Morris EAT 0436/10, the EAT observed: “The fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the Act, give a tribunal a sufficient evidential basis to make common-sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that it is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted.”

[34]Woodrup was a case involving psychotherapy treatment for “anxiety neurosis”. In the Court of Appeal, Simon Brown LJ held that the claimant had not done enough to prove the deduced effects of medical treatment for her mental condition, stating: “Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary”. The “present class of case” in Woodrup was the class of mental impairments in which the deduced effects of treatment (in Woodrup – psychotherapy) were in issue. It is easy to see that expert evidence would be necessary in such a case. By contrast, in a straightforward physical impairment case like the present, the effects of anti-inflammatory drugs and pain relief on a physical condition are within judicial knowledge – they reduce inflammation and relieve pain. (3) Is the effect substantial?

[35]"Substantial" is defined in Section 212(1) Equality Act 2010 as "more than minor or trivial". The Act does not create a spectrum. Rather, unless the adverse effect can be classified as "minor or trivial" it must be treated as substantial. That is a relatively low standard. I concluded that the effect was substantial during the relevant period in the sense that what the claimant could not do was not trivial or insubstantial. (4) Is the effect long term?

[36]As set out above, an impairment will have a long term effect only if:(a) "It has lasted for at least 12 months,

(b) It is likely to last for at least 12 months, or

[37]As submitted by Ms Todd, on the evidence before me the claimant's bursitis had not lasted 12 months at the beginning of the relevant time. The relevant period was 14 September 2022 to 20 March 2023. The claimant’s evidence, which I accepted was that the effect of his impairment on his ability to carry out normal day-to day activities had begun around mid-January 2022.

[38]In the absence of medical evidence, it was not possible to determine whether the claimant's symptoms, which began in mid-January 2022 were likely to last for at least 12 months as at the start of the relevant period (September 2022). As paragraph C3 of the Guidance makes clear, "likely" in this context should be interpreted as meaning that 'it could well happen'. However, the Guidance also states at C4: “C4. In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood.” (My emphasis).

[39]In determining whether the claimant was disabled at a date earlier than the twelve month anniversary of the onset of the substantial adverse effect of his impairment on day-to-day activities, it is not what actually later occurred but what could have been expected to occur which is to be judged. The fact that a condition has, since the date of the alleged discrimination, lasted for 12 months is - according to the law - not relevant to the question whether these eventualities were likely at the time of the alleged discrimination. A tribunal must determine the hypothetical question of what the prognosis would have been in the light of the information available at the time of the alleged act or acts of discrimination. Where a tribunal is asked to make a judgment of this nature, it needs an evidential basis for doing so, and medical evidence is usually required. As Ms Todd submitted, on 14 September, the effect had lasted less than 12 months (9 months). I am unable to determine whether the claimant’s condition, assessed at the earliest relevant date (14 September 2022) - or at any point up to the 12 month anniversary - would have been expected at that point to last longer than 12 months because no medical evidence was led on the matter. Thus it was only with effect from the 12 month anniversary of bursitis having a substantial adverse effect on the claimant’s ability to carry out day to day activities in around mid-January 2023 that that claimant was disabled as defined in the Equality Act 2010. Time Bar Unfair Dismissal Claim

[40]The respondent submits that the claimant’s claim for unfair dismissal is time barred. The first question to consider is the effective date of termination (“EDT”) of the claimant’s employment. Under section 97 ERA, that depends upon whether or not the employment was terminated by notice. If it was terminated by notice, section 97(1)(a) provides that the EDT is the date the notice expired. If it was terminated without notice, section 97(1)(b) provides that the EDT is the date on which the termination takes effect.

[41]Paragraph 705 of Harvey on Industrial Relations and Employment Law; (Division DI Unfair Dismissal; 5. Date of Dismissal and Effective date of Termination; B. Dismissal with notice; (2) Construing the notice of the dismissal) explains that “Where the employer terminates the contract, pays a sum of money to the employee to cover the notice period and dispenses with the employee's services for that period, the dismissal may take one of two forms. As the EAT pointed out in Adams v GKN Sankey Ltd

[1980] IRLR 416

, it may mean either that the employee is dismissed with notice but is given a payment in lieu of working out that notice, or that the employee is dismissed immediately with the payment being made in lieu of notice. If the dismissal falls into the former category, the EDT is the date when the notice expires; if it falls into the latter category then the EDT will be when the employment terminates (para [724] below). Where the termination is by letter, it is a matter of construction which form the dismissal takes. But often the letter is ambiguous.” For example, in the Adams case a letter was written in November stating 'you are given 12 weeks' notice of dismissal from this company with effect from 5.11.79. You will not be expected to work out your notice but will receive money in lieu of notice …' Despite this last phrase, the fact that the monies were paid gross without deduction of tax, and that pension rights were treated as ending on 5 November, the EAT held that the EDT was when the 12 weeks' notice had run its course.

[42]At paragraph 706 of Harvey, the learned authors state: “In Chapman v Letheby and Christopher Ltd

[1981] IRLR 440

the EAT held that the construction to be put on a dismissal letter should not be a technical one, 'but should reflect what an ordinary reasonable employee would understand by the words used'. It should be construed, moreover, in the light of the facts known to the employee at the date he received the letter. Consequently where there has been an oral notification followed by a written letter the oral and written words have to be construed together. It is not permissible to focus solely upon the letter, presumably even where its meaning is otherwise unambiguous (Leech v Preston Borough Council

[1985] IRLR 337

[1985] ICR 192

, following the approach adopted in the Chapman case). If the wording is still ambiguous when viewed in that context, the language should be construed against the person using it. So it will be for the employer to make his intentions clear if he wishes to rely upon a particular meaning.”

[43]I considered what the respondent had communicated to the claimant about his dismissal in this case and what a reasonable employee would have made of it.

[44]The claimant was employed by Caledonian MacBrayne Crewing (Guernsey) Limited. Mr Smith is retail development manager of Calmac Ferries Limited. My understanding of the relationship between them for present purposes is that Mr Smith did not have the power to carry out the termination of the claimant’s employment himself. For this reason, he stated at the end of the capability hearing: “We will be making a recommendation to Guernsey that your employment is terminated on grounds of capability. You will receive an outcome letter detailing the reasons for the decision. You will have the right to appeal”. Ms Kerr then orally confirmed payment details: “12 weeks pay as compensation for loss of earnings (non-taxable) a week’s pay for every year they have been in the business up to a maximum of 12 (taxable) any outstanding AL/call back”. It was not specifically stated to the claimant at the end of the meeting that his employment was being terminated immediately with a payment in lieu of notice.

[45]The claimant then received the promised outcome letter on 13 January (J124). That letter was headed ‘Termination of Employment on Ill Health Grounds”. The first paragraph was as follows: “Further to your meeting on 12 January 2023 with Gordon Smith, Retail Development Manager of CalMac Ferries Limited, and Natasha Kerr, HR Business Partner of David MacBrayne HR (UK) Limited, I now write to confirm our decision to terminate your employment with Caledonian MacBrayne Crewing (Guernsey) Limited on grounds of capability.” The letter did not stipulate - in so many words - the date the termination was effective. It did not say that termination was effective immediately. Towards the end of the letter, a paragraph stated: “After careful consideration of the above, the decision has been taken to terminate your employment on the grounds of capability due to your long term incapacity and due to the unlikelihood of your return in the foreseeable future.” There was then a section entitled: “Outstanding Leave and any other final payments”. The section stated: “Your final monies will include full pay up until 12 January 2023, any outstanding leave you may have accrued, 12 weeks compensation for loss of earnings (non-taxable) and 7 weeks payment in lieu of notice (taxable). Your final monies will be paid directly into your bank account on 28 January 2023. Your final pay slip and P45 will be sent to you as soon as possible after this date.”

[46]The question I have to decide is what an ordinary reasonable employee would understand by the words used, construing the oral notification at the end of the meeting and the letter together. Would he understand that he was being dismissed with notice but being given a payment in lieu of working out that notice (in the colloquial sense) or would he understand that he was being dismissed immediately with a payment being made in lieu of notice, to represent the equivalent of the damages a court would award for wrongful dismissal? Ms Todd submitted that the claimant admitted he knew he had been dismissed on 12 January and that he was told he would receive his final payments at the end of January. He had also appealed the decision. Furthermore, he put the [13] January date on his ET1 and he was not turning up to work. All of this is true. The claimant clearly was advised on 12 January and again in the letter of 13 January that the decision had been taken to terminate his employment. It was clear that that decision had been taken by Mr Smith on 12 January and by ‘Guernsey’ on 13th. However, the claimant was not advised when that decision would take effect. His understanding was that his contract was continuing and would terminate after the appeal if it did not succeed. Payment in lieu of notice was mentioned in the letter, but it was not clear in which sense. Neither the announced decision at the end of the meeting nor the letter stated that the termination was effective immediately, suggesting dismissal with notice, with the payment being made in lieu of working the notice out (which is more usual and appropriate for an ill health dismissal). Furthermore, whilst the “12 weeks’ compensation for loss of earnings” is described as “non-taxable” and as “compensation”, the “7 weeks’ payment in lieu of notice” is described as “taxable”, suggesting that it is pay rather than damages /compensation. Thus, on balance, and construing any ambiguity against the author, I concluded that a reasonable employee would understand that the term ‘payment in lieu’ was being used in the colloquial rather than the legal sense. If I am right to understand the oral remarks and the letter in this way, then the effective date of termination of the contract was accordingly when the seven weeks’ notice given to the claimant expired. Accordingly, the contract terminated on 3 March 2023 (seven weeks after 13 January 2023). This would mean the claimant had until 2 June 2023 to notify ACAS and that the unfair dismissal claim is accordingly in time.

[47]If I am wrong to construe the payment in lieu of notice colloquially rather than legally, and to conclude that the claim of unfair dismissal was presented in time, I would have concluded that in the circumstances of this case, it was not reasonably practicable for the claimant to have presented his claim in time and that it was presented within such further period as was reasonable in the circumstances for the following reasons.

[48]Despite the notification to the claimant that his final monies would be paid into his bank account on 28 January 2023 and that his final payslip and P45 would be sent to him as soon as possible thereafter, that was not what actually happened. The claimant’s final monies were not paid into his bank account on 28 January. The claimant did not receive payment in lieu of notice. Instead, he received his notice pay as pay in the ordinary sense at the end of each month accompanied by a pay slip. He did not know that this was a mistake because no one informed him of this at any point.

[49]Section 111(2) of the Employment Rights Act 1996 (“ERA) provides that an employment tribunal shall not consider a complaint of unfair dismissal unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination of employment, or, within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three month period.

[50]Time limits are strictly enforced in employment cases. The onus of proving that presentation in time was not reasonably practicable rests on the claimant. The claimant requires to show that it was not reasonably practicable, in the sense of not reasonably feasible for him to present the claim in time. Normally, it is necessary for a claimant to establish that there was some sort of impediment or hindrance to the presentation of the claim.

[51]I first considered the claimant’s explanation for notifying ACAS and presenting the claim when he did. The claimant understood that his employment had terminated on 20 March 2023, when he received the letter from the respondent informing him that his appeal was not upheld. This was the effective cause of him notifying ACAS and presenting his claim when he did. I considered whether, in light of this cause, it was not reasonably practicable for the claimant to notify ACAS within 3 months of 13 January (being the EDT contended for by the respondent) and to present his claim within one month thereafter. (The two are related because if the claimant had been correct that time started to run on 20 March, both actions would have been in time.) The issue here is a mistake as to fact on the part of the claimant about the date his employment terminated. The question is whether, in the light of the evidence about that mistake, it was not reasonably practicable for the claimant to present the complaint within the primary limitation period. Ms Todd referred me to the test articulated in the leading case of Wall’s Meat v Khan 1978 [IRLR] 499 in which the Court of Appeal held that: ''the impediment [to a timeous claim] may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable.''

[52]Ms Todd reminded me that in Wall’s Meat, the Court of Appeal held that mistaken belief will not be reasonable if it arises from the fault of an employee in not making such enquiries as he should have made. Ms Todd submitted that the claimant ought to have queried with the respondent why his final payment did not arrive in January and why his salary continued to be paid. She suggested that the claimant ought to have checked whether he was still employed. He had admitted he knew the decision to dismiss him had been taken in January and that he was not attending work. I considered this submission carefully. I concluded that the fact that the claimant was not attending work was neutral for present purposes, given the respondent’s position on the adjustments referred to in the claimant’s ENG1 certificate and the seven week notice period. Furthermore, although the letter the claimant received on 13 January stated that his employment was being terminated, it was not clear about the date of that termination. At some point prior to 20 March 2023, the respondent had realised that a mistake had been made in relation to the claimant’s final payments. However, they did not contact the claimant to inform him of their mistake. This allowed him to go on believing that the continuation of pay and the end of month payslips were intentional and that his employment had therefore continued until the outcome of his appeal. This was then reinforced when the claimant received his P45 one or two weeks after 28 March 2023. It seemed to me that where one party knows a mistake has been made and does not inform the other party, it is a bit rich for them to then submit that it is the ignorant party’s fault for not inquiring, especially given the respondent’s other mixed messages. I did not conclude that the claimant’s failure to inquire was unreasonable in the circumstances.

[53]Ms Todd submitted and I accepted that the existence of an internal appeal is not, on its own sufficient to justify a finding of fact that it was not reasonably practicable to present a claim within the limitation period. There must be some factor beyond the mere use of an internal appeals process which justifies the failure to meet the primary time limit. In this case, there are facts (outlined in detail above) in addition to the bare fact of the internal appeal process which, if the claim had been outside the primary limitation period, would have made it not reasonably practicable for the claimant to meet the time limit. The respondent was continuing to pay the claimant’s salary along with payslips as normal. The claimant testified and I accepted that he assumed from this that his dismissal had not yet taken effect and that his employment was continuing pending his appeal. He checked with his union and was told (correctly) that he could not bring a claim for unfair dismissal until his employment terminated. The respondent wrote to the claimant on 20 March 2023 informing him that his appeal was not upheld. They did not take the opportunity to clarify to the claimant in that letter (J129) that a mistake had occurred in relation to his pay. At the end of March, the claimant received a final pay slip (J133). This showed the remainder of his notice pay (described as “cash in lieu”) and showed various adjustments. It also paid to the claimant his annual leave accrued but untaken. His P45 followed.

[54]My primary conclusion is that the claim was in time. If, I am wrong about that and the EDT was 13 January, the claimant would have had to contact ACAS by no later than 12 April 2023 and to submit his claim by one month after the issue to him of the early conciliation certificate. This would have taken him to 13 May. ACAS were in fact notified on 24 April and the claim was submitted on 23 May 2023, so that the ACAS notification would have been 12 days late and the claim would have been approximately 10 days late. The claimant explained in evidence that the reason why he contacted ACAS and presented the claim when he did was that he believed that his employment had terminated on 20 March 2023. He continued to believe this until he received the respondent’s email in July 2023 stating that the claim was time barred. With regard to the time taken after the claimant was told that his appeal was unsuccessful, he had googled how to make a disability discrimination claim and had spoken to his wife about it. He knew he had three months less a day to bring the claim and understood that this time limit started to run on 20 March. However, he found the claim form very difficult to fill in because of the way some of the things were worded and he had to look things up. He spent some time trying to get advice from his trade union but they told him to contact ACAS and the Tribunal and to “make sure you fill the forms in right”. In all the circumstances, had the claim been presented outside the time limit in 111(2)(a), I would have concluded that it was submitted within such further period as was reasonable in the circumstances and I would have granted an extension of time for the claimant’s unfair dismissal claim under section 111(2)(b). Discrimination Claims

[55]The claimant has shown that he was disabled as defined in the EqA but only with effect from the 12 month anniversary of the date in January 2022 when his bursitis began to have a substantial adverse effect on his ability to carry out normal day to day activities. Disability claims prior to that date cannot succeed because the claimant has not shown he was disabled as defined in the EqA any earlier as explained above.

[56]With regard to the claims of alleged discrimination therefore, the only acts still in issue are the claimant’s capability dismissal and appeal. Time does not run in respect of an alleged discriminatory dismissal until the notice of dismissal expires and the employment ceases. British Gas Services Ltd v McCaull

[2001] IRLR 60

EAT. Thus, the finding that the claimant was dismissed on seven weeks’ notice and that the reference to payment in lieu of notice was to payment in lieu of working out the notice rather than to payment of damages for breach of the contractual notice term is also relevant to the discrimination claim. Thus, the date of the act complained of for the claim of allegedly discriminatory dismissal is also 3 March 2023.

[57]The claimant benefits from the early conciliation extension because he presented his ET1 tribunal claim on 23 May 2023, so within one month of the issue of the early conciliation certificate on 26 April 2023. Allowing for this and working three months less a day backwards from the date of notification of the claims to ACAS on 24 April 2023, acts of alleged discrimination prior to 25 January 2023 are out of time.

[58]During the period when the claimant was disabled as defined, the two acts of alleged discrimination arising from disability are his dismissal, effective 3 March 2023 and his appeal, effective 20 March 2023. Both are within the primary limitation period and therefore in time.

[59]In relation to any alternative time bar arguments about conduct extending over a period or a just and equitable extension, (if I am wrong about the payment in lieu of notice), these would require to be determined at the full hearing alongside the merits of the case. I therefore reserve them to that hearing.

[60]Date listing stencils will be sent out to parties for a full hearing to be fixed.

[61]The claimant may be able to seek legal advice without charge from the Faculty of Advocates Free Legal Service Unit or the following law clinics: Glasgow Caledonian University Law Clinic; University of Strathclyde Law Clinic; Aberdeen Law Project; The University of Edinburgh Free Legal Advice Centre; Edinburgh Napier Law Clinic; Or the law clinic at Robert Gordon University.

The Issues

[62]On 15 September a “return to work review” pro forma was completed (pages 146 to 148). It recorded his condition as the reason for his absence. It recorded that he was “still feeling some pain.”

[63]From 17 September the claimant’s entitlement to sick pay expired.

[64]Between 5 and 19 October the Claimant took pre-booked annual leave. He was paid his normal pay in the period of leave.

[65]On 21 October the Claimant was due to start his phased return as an SCR on the MV Caledonian Isles, working a shift pattern of 4 days out of 7 each week. The Caledonian Isles crossed from Ardrossan to Arran. It has capacity for up to 1000 passengers. It has a larger crew than the Isle of Arran vessel. When he arrived for that work, he met John Kerr, the vessel’s chief steward/head of catering. The claimant’s impression was that Mr Kerr was not expecting him. Mr Kerr noticed the claimant limping. He had been on board the vessel for a short period of time, less than 10 minutes. The claimant’s recollection was that Mr Kerr said to him “you’re no good to me, you’re not fit” or words to that effect. The claimant said “who are you to judge?” or words to that effect. The claimant’s view was that his fitness to work was a matter only for the captain of the vessel, and not for Mr Kerr. The claimant left the vessel. He was unhappy at not being permitted to work. He telephoned Mr Puczynski. The claimant understood that Mr Puczynski then called Mr Smith whose position was to support that of Mr Kerr.

[66]On Friday 21 October (09.41) Laura O’Neill within the respondent’s crew services emailed “Human Resources” and others including Mr Smith (page 158). Ms O’Neill said, “I’ve just had a call from John on the Cale Isles to say that he is not accepting George Allan on as part of his phased return. He has sent him home. He has said that George’s limitations are not suitable for a busy boat and that they cannot accept anyone who has been deemed as only capable of light duties. Please advise where you think we should go from here.” It appears that that email was forwarded on and seen by Ms Kerr by 13.52 that day. At that time she emailed Mr Smith (page 157) to say, “John Kerr, Leading Steward, called Caroline and advised George couldn’t even walk up the Gangway. He also said George had to stop 3 times walking to the office because he was in that much pain. John said he didn’t think George would manage a 12 hour shift and they both agreed he wouldn’t be capable. Let’s catch up next week.”

[67]At 15.12 on 21 October, an email was sent copied to the master of the MV Argyle (page 212). The sender and recipient’s email addresses are redacted. It does not contain a sign off block or a signature. It says, “As you know I've just come back to the vessel, so I'm not really sure what has been happening with George. That said as George is local then we would be happy for him to join and continue his phased return.”

[68]At 15.27 on 21 October Ms O’Neill emailed Ms Kerr (page 153). She said, “I’ve just called George to ask him about the possibility of him joining the Argyle this weekend as part of his phased return. I didn’t want him to think I had forgotten about him and didn’t have a plan. He mentioned that you had been in touch and told him to stay at home at the moment. From an HR perspective, would you rather I just left him until Gordon [Smith] returns on Monday?” Ms Kerr replied at 15.30. She said, “Sorry I should have emailed you after I called him. I called George from a welfare perspective as I knew he would have been disappointed after today. I told George that Gordon and I would have a discussion on Monday and get back in touch with him. I don’t believe he is fit to be at work from what information the Leading Steward on the Cale Isles has provided us with. Options I am going to discuss with Gordon is the possibility of doubling him up on the Argyle/Bute to see how he gets on – he keeps saying he won’t know until he tries. If not successful I would recommend he is medically stood down/back on to sickness as he is still technically unfit. I will keep you posted on Monday.”

[69]The claimant noted that on 21 October the Master of the MV Argyle said that he was happy to sign him on the boat to continue his phased return (page 221).

[70]On 24 October Mr Smith replied to Ms Kerr (page 157). He had been on holiday the previous week. He suggested that they speak “quickly”.

[71]On Wednesday 26 October the respondent wrote to the claimant (pages 159 to 161). By virtue of the letter he was medically suspended on full pay. The letter set out the background to that decision. That background was; the occupational health report of 15 August; the meeting on 8 September; the work on the MV Isle of Arran; his period of leave; and a future meeting to take place on or about 28 October. The letter said that he had been stood down on 21 October because of concerns about his fitness. It said that the respondent had received similar concerns from his time on the Isle of Arran. It said “ …we cannot accommodate the ENG1 restrictions within your current role on a permanent basis. This is due to the manning structure on the Clyde vessels, mv Argyle & mv Bute, which form part of the Clyde Collective Bargaining Agreement.” The letter asked the claimant not to “enter any company premises, make any contact with your colleagues (unless from a support perspective) or customers or attend any company funded training courses. The only exception will be if you are invited to attend a meeting.” It ended, “You are therefore medically suspended pending a review from your ENG1 Medical Doctor. We would therefore ask that you now make an appointment with your ENG1 doctor and update Gordon Smith on the date of this appointment. After your ENG1 has been reviewed, a meeting will be arranged with Gordon Smith, Retail Development Manager, with support from Natasha Kerr, HR Business Partner to discuss next steps. I must advise you that if you are unable to obtain an unrestricted ENG1 medical certificate that will allow you to carry out your role as Cook on the Clyde, you will be invited to a Contractual Review Meeting. A possible outcome of the Contractual Review Meeting may be dismissal on capability grounds but please be assured all other reasonable options will be considered and re-explored.” 27 October to 30 November

[72]On 28 October the claimant emailed Ms Kerr (page 162). He said that he had an ENG1 appointment for 3 November and would let her know how it went.

[73]The ENG1 certificate issued on 3 November contained the same restrictions as per the certificate from 7 September. Its life was also one year.

[74]On 11 November the claimant attended a meeting with Mr Smith. He was again represented by Mr Puczynski. Mr Smith was again accompanied by Ms Kerr. A typed note was prepared from it on a pro forma (pages 165 to 170). The note recorded; the fact that the claimant’s latest ENG1 contained the same restrictions and was again for one year; Mr Puczynski’s request that the claimant be permitted the phased return recommended by occupational health and Mr Smith’s reply that the respondent was “not willing to double people up - we couldn’t accommodate the phased return/the restrictions without doing this because George would be the lone position as cook”; the claimant’s view that on his work on the MV Isle of Arran he felt he needed more and was not in the galley; Mr Smith’s comment that the work on Arran was to accommodate the restrictions on the ENG1; a difference of opinion (Mr Puczynski and Mr Smith) on what constituted a phased return to work; a discussion on what had occurred on the MV Caledonian Isles; a discussion on what had occurred by way of phased return compared with what had been agreed; an exchange about the possible period of life of an ENG1; and Mr Puczynski’s discomfort about the meeting and “the way proceedings have been undertaken” to the point of suggesting the raising of a grievance against Mr Smith.

[75]On the question of the claimant’s phased return, Mr Puczynski said “my definition of a phased return is different from this table’s definition of a phased return. It is also not the definition I am getting from other departments. My definition is someone returning to the job they are employed to do – you put someone as a phased return and they get shadowed, that’s always how it’s been”; “there have been previous phased returns involving shadowing, tell me why other people aren’t afforded the same. There are people in your department that have been afforded it a double up phased return”; and the claimant’s “whole future is on the line and it is based on a phased return. Give him the chance to see if he can get on to Argyle and Bute and do this job. It is not a big ask considering his whole future is based on this. This man could lose his job because of this.” On the question Mr Smith said, “we said we would be unable to accommodate the phased return recommendations as it would encompass another crew member on board which is double the cost. We said at the last meeting unable to accommodate that as a business”; “unfortunately our position is we are not willing to accommodate a shadowing phased return”; “I am not denying it has been afforded in the past but the circumstances were different and the position has changed with regards to the cost and the increase in absence. I know it’s happened and I know the person you are referring to”.

[76]On the question of the claimant’s time on the MV Caledonian Isles the claimant said; he had not been on the vessel for even 30 minutes; Mr Kerr had “seen me with a wee limp. He told me what the hours would be and I said that’s fine. He said I see you have a limp and I said it doesn’t stop me from working. I told him I’m not happy and that I’m capable so you’ll need to call the company. I said you need to give me the chance”; he had to stop on the gangway because of passengers; and questioned Mr Kerr’s qualification to do with an ENG1. On the question Mr Smith said; he had spoken to Mr Kerr who had told him about his concerns watching the claimant walking in the car park and stopping “a couple of times getting up the gangway” and said that “he genuinely believed” the claimant was not fit for duty and having a duty of care for those joining the vessel he “didn’t feel comfortable”.

[77]On the question of the actuality of the claimant’s phased return, it appears that by 11 November he had worked two 4 day shifts on the MV Isle of Arran (see page 167). Ms Kerr reminded the meeting that the respondent “could accommodate the restrictions/reduced hours until the end of the summer timetable” so to 26 October.

[78]The precursor to Mr Puczynski’s discomfort was Mr Smith’s comment “So you have continued your exercises over a period of over 8 weeks, went back to your ENG1 doctor and you still have the same restrictions/time frame on restrictions. So essentially over that period of 8 weeks you have not gotten any further. You have been unable to carry out your role as Cook since February 2022 and we are now in November 2022. Unfortunately we can’t accommodate a phased return involving doubling you up. We are also unable to permanently accommodate the restrictions on your ENG1. Unfortunately there is no sign of you returning to your role in the foreseeable future and we will need to progress down the capability route.”

[79]On 22 November the respondent wrote to the claimant (pages 172 and 173). Amongst other things it said, “Since the meeting on 11 November 2022 you have been in contact with your ENG1 doctor who advised they would be able to reassess your fitness after a phased return with the hope to remove restrictions if good progress is made. With the ENG1 doctor’s confirmation that restrictions could be removed, instead of the restrictions lasting a year, we have investigated options we would be able to accommodate. As per recent discussions we are still unable to accommodate the recommended phased return from Occupational Health. We are however able to accommodate the restrictions on your ENG1 for a further period of four weeks in the hope that, at the end of this period, you will be able to get a full unrestricted ENG1.” It offered a 4-week roster working on a week on / week off basis on the MV Isle of Lewis. It was selected and offered because it is the respondent’s quietest vessel and “will provide the best opportunity for being able to build up your strength without the pressure of busy, short sailings”. The letter proposed that The first week would be as an SCR “in the hopes to build up your strength in bending, lifting, and carrying. The second week in the galley to further build up your strength and test your ability for further bending, lifting, and carrying.” The letter continued, “At the end of your 4 weeks you are required to re visit your ENG1 doctor … If, unfortunately, you do not achieve a full unrestricted ENG1, meaning you are still unable to carry out your contracted role as Cook, you will be invited to a Capability Meeting as per recent discussions.”

[80]In or around the end of November 2022, the claimant carried out a 4 week phased return on the MV Isle of Lewis. It has a crew of about 25. The claimant worked one week on one week off in that four week period.

[81]On 6 December Karin MacNair OSM (chief steward) on the Isle of Lewis reported to Mr Smith by email on the claimant (page 185). In it she said, “George has been performing well in Galley & keen to assist in any way he can. The first couple of days adjusting to sea swell & motion of weather last week, were taking their toll. George has been punctual and proactive in looking for tasks. Adjusting to sea state & five hour passage after being on shorter route. Discussed with George progress & recommend he brings steward & galley gear next shift.” It appears from that email that the claimant’s first shift was spent in the galley. In that shift he worked as “third man” in the galley. Third man worked “below” the chief cook and the second cook. The claimant described the role as mainly involving the preparation of vegetables. Early December to 13 January 2023

[82]On 22 December 2022 the claimant attended an ENG1 appointment. An ENG1 was issued that day. It contained the same restrictions. It had an expiry date of 21 December 2023.

[83]On 22 December the claimant was medically suspended on full pay.

[84]On 5 January the respondent invited the claimant to a “contractual review meeting”. It was fixed for 12 January at 10.00am. Its purpose was “to discuss the outcome of your recent ENG1 review and to discuss what options are available.” The letter told the claimant that the respondent was “keen to provide as much support as we can to get you back to work, however I must advise you as you have been unable to carry out your role since February 2022 and as you have a restricted ENG1 Medical Certificate meaning you have been deemed unfit for your contracted role for the foreseeable future, we may have to consider terminating your employment on ill health grounds. No action will be taken without full investigation into the matter and suitable alternative employment will be re-explored.”

[85]The claimant duly attended the meeting. A typed note of it was prepared (pages 175 to 181). Mr Puczynski was the claimant’s representative. Mr Smith and Ms Kerr represented the respondent. The note suggests that the meeting; started at 11.00; adjourned at 12.00; and reconvened at 12.20pm. The note records discussion on; feedback from the claimant’s work on the Isle of Lewis; the latest ENG1; alternative roles with the ENG1 restrictions; the likely actuality of working on MV Argyle with the restrictions; shore-based alternative work; and the meeting’s outcome.

[86]On Isle of Lewis feedback, the claimant asked if the respondent had received any. Mr Smith read out Ms Macnair’s email from 6 December, confirmed that he had received oral feedback on the second week and agreed that the feedback was positive. The claimant was “over the moon” about Ms Macnair’s feedback. He believed that it showed that he was capable of doing the job.

[87]The latest ENG1 was provided. Mr Smith noted that it showed no change on the restrictions. He noted that the restrictions would apply until 21 December 2023.

[88]Mr Puczynski raised the possibility of seafaring roles alternative to that of cook on the Argyle including as an SCR or steward on the Isle of Lewis. Both Mr Smith and Ms Kerr noted that the purpose of the temporary post on the Isle of Lewis was to be in a position to have the restrictions on the ENG1 removed. The discussion included reference to Muster list duties. While Mr Smith expressed the view that they involved heavy lifting he appeared to accept Mr Puczynski’s view that “the master would look at those restrictions and say ok George you are in charge of life jackets or you are in charge or escorting people to their muster stations”. Mr Smith said, “I take your point on the muster list and the Master making the decision.”

[89]On the claimant’s role on the MV Argyle, Mr Smith said that; the claimant was alone in the role; “I know people will help you out because that’s the kind of crew they are, but there will be times where maybe someone can’t help because they’re doing their core role”; “there’s stores, bending, lifting, carrying, prolonged standing etc. If we let you back in that role, knowing we can’t guarantee those restrictions are accommodated and something happens and you further damage yourself, did we put people first there? Those restrictions are not realistic for us to be able to accommodate. The very nature of your job is 12 hour straight shifts – how would that work with the no prolonged standing? It may not always be the case where you can just take a break. Or there may not always be the option where you don’t but is that always the case up sticks and take a break?”; and “most of your job is exactly what those restrictions say you shouldn’t be doing a lot of.” He recognised that the claimant’s condition “can and it could go away, but it also might not. It might get better and we hope it does, but at present those restrictions are in place for a year.” Mr Smith’s view was that by that time all he had to go on was the ENG1 with restrictions of a year to December 2023.

[90]The claimant advised that two Masters (on the Isle of Lewis and Ian Beaton, a relief Master on the Argyle and the Bute) would not have an issue signing him on (page 177).

[91]There was a discussion about alternative shore-based work. The claimant described it as impossible.

[92]After the adjournment, Mr Smith said that his recommendation to Guernsey that the employment be terminated on grounds of capability.

[93]On 13 January the respondent wrote to the claimant (pages 183 and 184). After setting out the history from the start of the claimant’s period of absence in February 2022 it said, “After careful consideration of the above, the decision has been taken to terminate your employment on the grounds of capability due to your long-term incapacity and due to the unlikelihood of your return in the foreseeable future.” It advised that “final monies will include full pay up until 12 January 2023, any outstanding leave you may have accrued, 12 weeks compensation for loss of earnings (non-taxable) and 7 weeks payment in lieu of notice (taxable).” The letter noted that “At the capability review meeting on 12 January 2023, it was re-iterated to you that the Company would be unable to support the ENG1 restrictions on a permanent basis, either within your current role, or within another role i.e. SCR, due to the nature and requirements of the role.”

[94]It advised of a right of appeal. 14 January to 20 March 2023

[95]By email on 21 January, the claimant sought to appeal the decision to terminate his employment (page187). His appeal reasons can be summarised in this way:a. His current medical condition was not taken into consideration; it was not terminal and would improve

b. the work he did with ENG1 restrictions indicated his capability in that he was given full duties including on a muster list

c. the reports from the vessels of his work indicated that he was “fully competent” and able to complete all tasks.

[96]He indicated that he believed the decision was biased and he was confused as to why, in light of his appeal reasons, he should have been dismissed.

[97]On 21 February an appeal meeting is held with the claimant, Gerry Puczynski, Finlay MacRae, Head of Operations, Brigit Hume, HR Business Partner, and Samantha Tapp, Guernsey Manager – Marine Services. A note of it was prepared (pages 191 and 192). It recorded the location as Gourock. It does not record Ms Tapp as attending. She joined the meeting remotely. Mr Puczynski spoke on the claimant’s behalf in setting out the grounds of appeal. The claimant explained that; he “worked fine” in the galley as third man; and alternative shore-based work was considered but not suitable. Mr Puczynski explained the reasons why an SCR role would be suitable.

[98]On 23 February in a redacted email (pages 218 and 219) the respondent discussed the claimant. It referred to the pros and cons of his case. It is clear that the pros were factors which favoured his retention as an employee. Within the pros the email noted “George‘s case is slightly different, George has no sick leave to take, so if he does go off within the next 12 months, the company will not need to pay him.”

[99]It also said, “We are fast approaching the summer season, so we will have lots of extra bodies employed within the western isles fleet, George could easily be slipped into a position where he could be monitored if necessary” and “You haye will have an experienced Cook! steward who is trying to prove to the company, that he is still capable of doing his job , in the capacity required of him ,so you would get 100% commitment out of him.”

[100]On 8 March Ms Hume emailed Ms Kerr and Mr Smith (page 196). It says “What's 'reasonable' will depend on each situation. Think about the following things” There then followed 7 bullet points. The first bullet is, “will it remove or reduce the disadvantage for the person with the disability?” Reference to “it” occurs in bullets two and three. It is not clear what “it” is.

[101]On 13 March Mr Smith replied (pages 193 to 196). He provided answers for both the claimant’s substantive role and the SCR role.

[102]On 14 March Ms Hume emailed Craig Ramsay the respondent’s Head of Marine (page 197). The heading is ENG1 restrictions. It appeared to attach the claimant’s latest ENG1. After setting out the context she said, “one of the points of their appeal is they believe these can be reasonably accommodated and they would be able to part of the muster list, as the Captains can tweak duties as needed, for example the employee could assemble life jackets etc.” The bold text is as per the email. She then sought “some guidance on whether they could reasonably be part of the muster list and/or if we could make reasonable adjustments to the muster list (as they have suggested above) and still be compliant.”

[103]Later that day Mr Ramsay replied (page 197). He said, “If I’m reading correctly the restrictions are no heavy lifting and no prolonged standing. Depending on the exact nature of their medical condition, and their training status, it is possible that they could take up certain muster list positions on some vessels. However, the restrictions would have a negative impact on their ability to undertake most other roles onboard.”

[104]On 20 March Mr MacRae wrote to the claimant with his appeal outcome (pages 199 to 201). He summarised the claimant’s grounds of appeal in 6 bullets. He made reference to “up to date” medical information and advice, specifically the occupational health report of August 2022 and the latest ENG1. The letter noted that “to be legally compliant to work on a CalMac ship, either in the role of Cook or SCR, these restrictions must be adhered to and would be in place until at least December 2023 and we had no indication as to when or if they may be lifted.” In relation to his role as cook it said, “prolonged standing, heavy lifting, and bending were a significant part of the role. This is due to this being a lone worker role, whereby the majority if not all duties could only be done standing up, there is a constant requirement for heavy lifting/carrying in that the Cook is required to move goods around the vessel and galley and finally there is a constant requirement for the Cook to bend, to access the fridge, oven and wash dishes.” The letter referenced adjustments. It said, “the only way this would be feasible, given everything that is expected of the Cooks role, in terms of service levels, safety requirements and so on, would be to have an additional head count working in the galley. Given the operation of the vessel, and that it would not be feasible for any colleagues (currently included in head count) to give the required support and assistance the only way this would be viable would be to recruit additional head count.” For cost reasons Mr MacRae’s view was that the adjustment was not reasonable. The letter noted the permanent Port Assistant role at Gourock and the reasons why the claimant did not apply for it. It referenced an alternative SCR role the duties expected of it and what might be done to accommodate the claimant in it. On that issue Mr MacRae concluded that “the only way this would be viable would be to recruit additional head count for the high season” and decided that for cost reasons “we … do not think we could reasonably make these adjustments to the role of SCR.” In the context of “process” Mr MacRae focussed on the phased return to work exercise. He said, “you were not afforded a phased return as recommended by Occupational Health. We believe you were afforded this, albeit in the role of SCR. It was also discussed that it was not practical or reasonable for your phased return to be carried out in your substantive role as Cook, but could be offered in the role of SCR. It was discussed at the outset that the purpose of the phased return in the SCR role was a temporary measure to allow you time to build up your strength, have the restrictions removed from your medical and return to your substantive role of Cook. It was not the case that this would become a permanent arrangement, particularly with the restrictions still on your medical for the reasons stated above.” The appeal was not upheld.

[105]Mr MacRae believed that he had seen a risk assessment which had been done relating to the claimant returning to his role as cook on the Argyle with ENG1 restrictions. No risk assessment was produced or referred to anywhere else in the evidence. Mr Smith believed that no such assessment had been carried out. It is more likely than not that no such risk assessment was done.

[106]The claimant’s effective date of termination was 3 March 2023.

[107]The claimant’s mental health was detrimentally impacted by his dismissal. It caused financial concerns for him. They in turn resulted in arguments with his wife. He was prescribed Amitriptyline by his doctor. It is ordinarily prescribed to treat low mood and depression. After 3 March 2023

[108]By 3 March 2023 his gross weekly wage from the respondent was £728.48. His net weekly pay was £586.88. The claimant was paid 12 weeks compensation for loss of earnings (non-taxable) (see page 184). He received Job Seekers Allowance (of £763.21) in the period between 11 July and 18 September.

[109]On 20 July 2023 the claimant was examined by an MCA approved doctor (pages 202 and 203). She issued an ENG1 that day. Its expiry date is 19 July 2025. It certifies the claimant as fit but subject to the restriction of working in UK Near Coastal waters only.

[110]On 18 September he began employment in the Care at Home service of the charity Carr Gomm. In that employment, his average weekly net earnings are £477.45.

[111]His evidence (in cross examination) was that between 3 March and 11 July he was looking and applying for work. He accepted that those attempts were not vouched by any material in the bundle. Comment on the evidence

[112]Both parties argued that on the question of credibility and reliability their evidence should be preferred over the other where there were disputes. But using(i) the agreed issues as the framework for identifying relevant evidence and

(ii) the contemporaneous documents as a primary point of reference, very little relevant oral evidence was in dispute. Of course there were discrepancies. But not to the extent of influencing our views on how to answer the issues.

[113]Three points from the evidence are worth commenting on here albeit they were not material to our decision. First was Mr Smith’s evidence that to “double up” the claimant with another cook on the MV Argyle in a phased return to work period would increase costs to the respondent. We found that difficult to reconcile with the position after 26 October when the claimant was suspended on full pay. By that time the respondent was already paying both the claimant and for a colleague to “cover” his work. On our analysis there would have been no additional cost; the claimant would have been working (and being paid) instead of being suspended (on full pay). Second, we had misgivings as to Mr MacRae’s role as appeal hearer. He accepted that the emailed answers to questions (pages 193 to 196) was akin to Mr Smith “marking his own homework”. Mr Smith’s decision was the subject of the appeal. He knew that the information which he provided was being considered in that context. It appears that Mr MacRae accepted what was being said without further engagement or enquiry. Third (and as the claimant ultimately accepted on 30 April) he was clearly mistaken in his belief that an ENG1 could not have a “life” of less than a year when account is taken of Regulation 9 of the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations 2010 which provides that for the claimant an ENG1 had a maximum life of two years “or such shorter period as is specified” in it. Submissions

[114]As per the amended timetable, the parties exchanged and lodged written submissions and lists of authorities prior to an oral hearing on 30 April. There was some overlap of the authorities. We mean no disservice to either party or their representatives in not repeating or summarising their submissions. To the extent necessary, we have referred to aspects of them below. We record our thanks to both for their work in preparing and presenting them.

The legal framework

[115]We have set out here what we consider to be the significant legal framework in the context of the issues which we had to decide. We have referred to other caselaw as necessary below.

[116]Section 98(1) of the Employment Rights Act 1996 provides that “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or” “some other substantial reason”. One reason with subsection (2) is at(a) and “relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do.” Subsection (3) then provides that “In subsection (2)(a) “capability” …. means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality.” Section 98(4) provides that “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

[117]An employment tribunal requires (in a claim of unfair dismissal where the dismissal was on capability grounds) “to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did” (Schenker Rail (UK) Ltd v Doolan

UKEATS/0053/09/BI

[118]At paragraph 23 of its judgment in the case of BS v Dundee City Council 2014 S.C. 254 the Inner House of the Court of Session said “We intend first to examine the two main authorities, Spencer v Paragon Wallpapers Ltd [

[1977] ICR 301

] and East Lindsey District Council v Daubney, [

[1977] ICR 566

] and then to consider how the principles established in those cases were applied to the present case.” At paragraph 27 it notes, “Three important themes emerge from the decisions in Spencer and Daubney. First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the question of whether the employer can be expected to wait longer. Secondly, there is a need to consult the employee and take his views into account. We would emphasise, however, that this is a factor that can operate both for and against dismissal. If the employee states that he is anxious to return to work as soon as he can and hopes that he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him. Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.” And at paragraph 34 it said, “the judgment of the ET was lacking in four respects. First, the tribunal did not expressly address the balancing exercise that the decision in Spencer v Paragon Wallpapers Ltd requires; in particular, they did not directly address the question of whether in all the circumstances of the case any reasonable employer would have waited longer before dismissing the appellant. … Secondly, the tribunal did not in our opinion give adequate weight to the appellant’s own views about his ability to return to work. As we have indicated, these are important, and the opinion expressed in [the doctor’s] report should have been weighed against them in deciding whether the respondent’s decision to dismiss was one that no reasonable employer could have reached. Thirdly, we are of opinion that the tribunal attached too much importance to the need to obtain a further medical opinion. In this respect they overlooked the fact that the obligation on a reasonable employer is only to carry out such medical investigations as are sensible in all the circumstances. They should accordingly have considered what, if anything, any further medical examination might reveal, and they should have considered whether a reasonable employer, having Dr Spencer’s report, the continuing note from the GP and the appellant’s own views, might have concluded on 23 September that the appellant was unlikely to return to work in the foreseeable future and might therefore reasonably be dismissed on account of ill-health. This issue is obviously closely related to the first issue that we have mentioned in this paragraph. Fourthly, the tribunal should have considered whether the appellant’s length of service was in fact relevant to the decision that the respondents had to make on 23 September and again at the appeal hearing on 28 October. In relation to all four of these issues, the discussion at paras 26 to 33 above is clearly relevant. We would emphasise that the critical question is ultimately the first, namely whether any reasonable employer would have waited longer before dismissing the appellant.”

[119]Section 15(1) of the Equality Act 2010 provides “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.”

[120]“To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.” (paragraph 22 of the judgment of Lady Hale in the case of Chief Constable of West Yorkshire Police and another v Homer [2012] I.C.R. 704.

[121]“The tribunal had adopted the “no more than necessary” test of proportionality from the Homer case

[2012] ICR 704

and can scarcely be criticised by this court for doing so” (paragraph 47 of judgment of the Supreme Court in the case of Essop and others v Home Office (UK Border Agency) Naeem v Secretary of State for Justice [2017] I.C.R. 640).

[122]Section 20(1) of the 2010 Act provides, “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.” The duty comprises the following three requirements.(subsection (2). The first requirement (of that three) “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.” Section 21(2) provides “A discriminates against a disabled person if A fails to comply with that duty in relation to that person” that duty being (in this case) a failure to comply with the first requirement. Discussion and decision

[123]It is a matter of agreement that the reason or principal reason for the claimant’s dismissal was capability (see the claimant’s submission at paragraph 3). That is consistent with the relevant contemporaneous evidence (dismissal letter of 13 January 2023 pages 183 and 184 and appeal outcome letter of 20 March 2023 pages 199 to 201). The respondent has shown that the reason for the claimant’s dismissal was capability within section 98(2)(b) of the 1996 Act. The respondent via the actings of those making recommendations to it (Mr Smith and Mr MacRae) genuinely believed that capability was the reason for the dismissal. We say that on the basis that there was no challenge by the claimant that the reason for dismissal (and on the appeal) of his employer was as per those recommendations. We answer the first issue “yes.”

[124]We found the dismissal to be unfair. It was not in accordance with the principles summarised by the Inner House of the Court of Session in the case of BS v Dundee City Council. One theme identified in it from the two earlier (named) main authorities was the need to take steps to discover the employee’s medical condition and his likely prognosis. The Court noted that that need “merely” required the obtaining of proper medical advice. What is required is to ensure that the correct question is asked and answered. What is not required is for the employer to pursue a detailed medical examination.

[125]In this case the respondent relied on the ENG1 form. In its written submission the respondent said that from September 2022 it was “the key medical evidence under consideration.” That is borne out by the evidence from mid-August 2022 until the appeal outcome. On 18 August 2022 at a capability review meeting Mr Smith said “We can’t sit and talk about phased returns etc when you don’t have an ENG1 – an ENG1 is the starting point of those discussions” (page 125). At the meeting he advised the claimant that not getting an ENG1 form was an example of circumstances in which the claimant’s employment may be terminated (page 126). At the meeting the claimant said that he believed that he would get his ENG1 (page 124). By that time the claimant did not have an ENG1 with restrictions on it. The stated aim of the claimant’s work on the Isle of Lewis vessel was that after it he “would revisit your ENG1 doctor who would remove the current restrictions on your ENG1” (page 177). In its letter of 5 January inviting him to the meeting on 12 January (page 174) the respondent said, “as you have a restricted ENG1 Medical Certificate meaning you have been deemed unfit for your contracted role for the foreseeable future.” Towards the end of the meeting on 12 January and in a discussion about the ENG1 Mr Smith said, “The reality we are talking about is whether we can accommodate the restrictions” on the certificate (page 180). The dismissal letter noted ““At the capability review meeting on 12 January 2023, it was re-iterated to you that the Company would be unable to support the ENG1 restrictions on a permanent basis, either within your current role, or within another role i.e. SCR, due to the nature and requirements of the role.” Mr MacRae’s letter of 20 March (pages 199 to 201) says, “Your ENG 1 doctor put the following restrictions on your medical until at least December 2023, no heavy lifting, no prolonged standing, and regular breaks. As you are aware, for you to be legally compliant to work on a CalMac ship, either in the role of Cook or SCR, these restrictions must be adhered to and would be in place until at least December 2023 and we had no indication as to when or if they may be lifted.” That letter referenced what Mr MacRae called “the available medical information”. That included, he said, the occupational health report from August 2022 and the ENG1 certificates.

[126]In its written submission, the respondent asserts that the Claimant’s ENG1 certificate indicated he was not fit to return to work without restrictions (paragraph 76). That is, strictly speaking, incorrect. It certified that he was fit with restrictions. The difference is subtle but important. The respondent appears to have assumed that the claimant was unfit to work unless and until the restrictions were removed. In fact the ENG1 says he is fit with the three restrictions accommodated. It is important to keep in mind the purpose of the ENG1. It is limited to recording the doctor’s opinion on the effect of “any medical condition” on one (or more than one) of three things. They are; is any medical condition(1) likely to be aggravated by service at sea

(2) rendering him unfit for such service (i.e. service at sea) or

(3) liable to endanger the health of other persons on board (see pages 139 and 202). It is not a means of discovering the claimant’s medical condition or his likely prognosis. The obligation on a reasonable employer is only to carry out such medical investigations as are sensible in all the circumstances. In our view a reasonable employer would have sought and obtained a report from its occupational health provider (or other medical advice) about the claimant’s medical condition and prognosis in January 2023 before any decision to dismiss him. Both previous occupational health reports indicated the probability of (or at least optimism about) an improvement in his condition. The report in April 2022 indicated that his condition in most cases were treated successfully and did not recur. The August report did not detract from that opinion. The claimant reported an improvement to Mr Smith in their meetings. His performance on the Isle of Lewis in November indicated an improvement in his health. The respondent knew that it was possible for the restrictions to be removed at any time during the life of any ENG1 and earlier than December 2023.

[127]Looked at in the context of section 98(2)(a) and (3) of the 1996 Act, the respondent did not have a reasonable basis on which to conclude that “by reference to skill, aptitude, health or any other physical or mental quality” the claimant was not capable of performing work of the kind which he was employed by the respondent to do. The ENG1 did not address those issues. A reasonable employer, having previously engaged occupational health professionals to advise on the claimant, would have sought advice from them before dismissing him. Given the improvements in the claimant’s condition and the fact that he had performed well in the galley of the Isle of Lewis in November, a further medical examination might have revealed that his prognosis for a recovery to the duties of his role in the foreseeable future and was probable much sooner than December 2023.

[128]Separately, no reasonable employer would have refused the claimant the opportunity of a phased return to work to his own role on the basis of the suggestions from its occupational health advisor. We considered issues 3i, 3 ii, and 3iii together. Our preliminary comments are; there was no evidence that the ENG1 doctor advised of a phased return; the core of the criticism of the respondent in the issues is that it did not afford a phased return to the role of cook on the MV Arygle; the reference in 3 ii is a reference to a phased return; and the respondent did not dispute that that type of phased return had been afforded in the past (see page 168).

[129]The first discussion about a phased return involving adjusted duties was on 18 August. The discussion took account of the opinion of the OH advisor’s suggestions. It thus took place before the ENG1 restrictions which were first made on 7 September. In the meeting on 18 August, the claimant said that he believed that he would “get an ENG1”. It is clear from the OH report and Mr Smith’s comments on 18 August that the phased return would involve the OH suggested adjustments being effected on a temporary basis. The OH report says the advisor was “hopeful that these adjustments will be temporary and only be required to help him manage his symptoms.” The exchange between Mr Smith and the claimant tends to suggest that the claimant could work with the adjustments but that Mr Smith did not agree. Mr Smith’s view was that on the claimant’s shift pattern (not 2 weeks on and 2 weeks off as OH believed) accommodating a phased return was more difficult. His position at that time was to ask crewing if it could be accommodated. It appears (from an email on 20 August page 208) that the respondent’s rationale for not accommodating the phased return recommended by occupational health was due to(i) cost and

(ii) the additional workload that this would place on the crewing officer/other Clyde retail crew. That rationale was further explained in the email. The vessel has a small amount of retail crew onboard; and there is “no slack” to accommodate the potential amount of regular rest breaks likely to be required.

[130]Ms Todd accepted (correctly in our view) that on the question of fairness of the claimant’s dismissal it was relevant for us to take into account whether the respondent’s commitment to the claimant on 10 August to explore all options including reasonable adjustments (page 119) had been met. We acknowledge that (as EJ Kearns decided) prior to mid-January 2023 the claimant was not “disabled”. Accordingly there could be no section 21 failure to comply with a section 20 duty prior to that point in time. Nonetheless the respondent made that commitment. The question in the context of issue 3 (i, ii, and iii) then becomes was it reasonable for the respondent not to afford the phased return to his duties on the MV Argyle as recommended by occupational health? Or was its decision outside the range of reasonable responses? By 20 August 2022, the respondent obviously had employed alternative cook cover on the MV Argyle. On 8 August the claimant’s GP (page 100) recommended a phased return on amended duties and altered hours.

[131]From 26 October the claimant was medically suspended on full pay. The question of a phased return was revisited at the meeting on 11 November. If the claimant returned on a phased basis as per the recommendations on his rota his work over 10 weeks would have been as follows: 1. (on) 50% = 6 hours of 12 2. (off) 3. (on) 50% =6 hours of 12 4. (off) 5. (on) 75% = 9 hours of 12 6. (off) 7. (on) 75% = 9 hours of 12 8. (off) 9. (on) 100% = 12 hours of 12 10. (off)

[132]On 21 October (see page 153) Ms Kerr planned to discuss with Mr Smith the possibility of doubling the claimant up on the Argyle/Bute to see how he got on. She referred to the claimant’s position being that he would not know if it would work unless it was tried.

[133]Mr Smith’s view was that “another crew member on board would be double the cost.” On any analysis that does not make sense in the circumstances. The respondent was already paying a cook on the MV Argyle covering the claimant’s role. The claimant as the “other” crew member on board would not double the cost. Indeed if he were paid per hour on the phased basis there would be a saving for part of the time compared with his full pay on suspension. Mr Smith said that the respondent “wouldn’t be able to accommodate doubling up.” The note does not record any further explanation of his view. But that does not stand up to scrutiny either. There was no reason why the claimant could not have gone on as “spare” (for his phased return hours). He had previously suggested it. It was, from that exchange, something which was possible. His unchallenged evidence was that the MV Argyle had a spare man.There was no reason why the claimant could not have worked the phased return (above) and done so as “spare” within the crew. We agree that the claimant’s dismissal was unfair taking account of issue 3 i, ii and iii.

[134]In its written submission, the respondent said, “The Claimant had been medically assessed in person by his ENG1 doctor who is a specialist in seagoing medical referrals and best placed to analyse his fitness for work.” Leaving aside the absence of any evidence as to the specialist nature of the doctor, that doctor is in our view not best placed to analyse the claimant’s fitness for his particular role. There is no evidence that the ENG1 doctor was aware of the claimant’s role other than the fact that he was in “catering”. In his letter (page 199) Mr MacRae said “for you to be legally compliant to work on a CalMac ship, either in the role of Cook or SCR, these restrictions must be adhered to.” This tends to suggest that the respondent’s focus was predominantly on legal compliance and less to do with the claimant’s medical condition and his likely prognosis. Indeed, its written submission quotes Regulation 6(6) of the Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations 2010 which provides that “No person may work as a seafarer on a ship to which these Regulations apply in breach of a condition of that person's medical fitness certificate” and refers to Regulation 18 which states that a breach of Regulation 6 is an offence. Legal compliance and avoiding the possibility of a criminal prosecution were clearly relevant to the respondent, a matter quite different from the claimant’s health and ability to perform his role. Indeed the respondent relied on Mr Smith being “clear in his evidence that the legal ramifications of ignoring ENG1 restrictions can be significant for the business. It is a criminal offence to have employed someone in a way that breaches their ENG1’s conditions.”

[135]Related to the claimant’s medical condition and his likely prognosis is the need (from BS v Dundee City Council) to consult with him and take his views into account. Those views include his ability to return to work. Throughout his period of absence the claimant consistently indicated his willingness to do so. In March 2022 he said that he did not want his sick line extended. In April he said he hoped his latest physiotherapy session would be his last before returning to work. His intention in arranging (and paying for) osteopath appointments was to speed up his recuperation. In late June he said that he was “trying to do everything to get fitter.” He sought a phased return to work on his own vessel. He undertook the work which was(i) asked of him and

(ii) permitted by the respondent. He believed that the feedback from the Isle of Lewis was positive and indicated that his condition was improving and he was capable of doing his job. The respondent does not appear to have taken the claimant’s views into account. In particular, it did not take into account the claimant’s enthusiasm to return to his role or his view on his (improving) health and abilities. In BS v Dundee City Council the Inner House emphasised that a critical question is whether any reasonable employer would have waited longer before dismissing the claimant. In our view a reasonable employer who had taken account of the claimant’s improving health, his performance on the Isle of Lewis, and his enthusiasm to return to his role and would have delayed his dismissal at least to the extent of obtaining a medical opinion on his health and prognosis. Two of the claimant’s appeal grounds were (i) he did not feel his current medical condition was taken into full consideration and (ii) his condition is not terminal and would improve, and he believed it is “already getting better” (page 187). Mr MacRae repeats them and looked at “the available medical information” being the OH report from August 2022 and the latest (December) ENG1 certificate (page 199). He did not take any steps to ascertain the claimant’s medical condition (by 20 March 2023). He did not expressly take account of the claimant’s opinion that his health was improving. In our view a reasonable employer, prompted by the grounds of appeal, would have sought a professional opinion on the claimant’s prevailing medical condition, prognosis, whether it was improving, and on the possibility of a recovery to his duties in the foreseeable future. By 23 February the respondent had recognised that any future absence would be on nil pay and the claimant could “easily” be found a position in the summer season. We therefore answer issue 3 v “yes”. The dismissal was unfair. It was premature.

[136]It is unnecessary for us to answer issues 2 i, 2 ii, or 3 iv.

[137]We answer issue 2 iii (was the dismissal within the band of reasonable responses?) “no” for the reasons set out above.

[138]Issue 4 is predicated on a finding that the dismissal was unfair on procedural grounds. The respondent sought a 100% reduction in any compensatory award (or such other reduction as we thought fit). It did so on the basis that the claimant would have been dismissed had a fair procedure been followed.

[139]“A “Polkey deduction” has these particular features. First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so? The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes. This is to recognise the uncertainties. A Tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done.” And “the Tribunal has to consider not a hypothetical fair employer but has to assess the actions of the employer who is before the Tribunal, on the assumption that the employer would this time have acted fairly, though it did not do so beforehand.” Hill v Governing Body of Great Tey Primary School

[2013] ICR 691

. “If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)” (see paragraph 54 of the report in the case of Software 2000 Ltd v Andrews

[2007] ICR page 825

. On a strict reading of the agreed issue (which is limited to procedural unfairness) the answer is “no”. But a tribunal should not rule out the making of a “Polkey” deduction because it has determined that the dismissal is substantively unfair (O'Dea v ISC Chemicals Ltd

[1995] IRLR 599

.) The respondent did not identify any evidence to support its proposition that “Even if the Claimant had not been dismissed when he was, he would have been dismissed in any case.” Applying what was said in Hill, we cannot say with any confidence at all that the respondent would have dismissed fairly. Indeed, in our view had the respondent acted fairly and obtained medical advice (certainly by 20 March as the claimant’s appeal sought) it may well have returned him to nil pay pending the removal of the ENG1 restrictions which in fact occurred by 20 July. By that date, the claimant could have returned to his role as cook on the MV Argyle. We are not persuaded that any reduction should be made for “Polkey”.

[140]On the claim of discrimination under section 15, in the case of City of York Council v Grosset

[2018] IRLR 746

the Court of Appeal said, “On its proper construction, section 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) "something"? and

(ii) did that "something" arise in consequence of B's disability. The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something".” “The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something””. The respondent accepts that (i) the restrictions on the Claimant’s ENG1 certificate and (ii) his inability to have them lifted and demonstrate that he could do his job were consequences of his disability. In our view they arose in consequence of his disability. We therefore answer issue 6 “yes”. The unfavourable treatment relied on is (i) the dismissal and (ii) the refusal of the appeal. The respondent accepts that the claimant was dismissed and his appeal was refused as a result of his incapability to carry out his role, and this incapability arose in consequence to his disability. In our view, the claimant was treated unfavourably (dismissed and appeal refused) because of the “things arising” from his disability. We answer issue 7 “yes”. We also answer issue 8 “yes” albeit there was no evidence as to the respondent’s state of knowledge. Neither party made any submission on that question. The battleground on section 15 was therefore on issue 9; had the respondent shown “that the treatment was nonetheless justified as a proportionate means of achieving a legitimate aim? The legitimate aim relied on by the respondent is maintaining a workforce capable of carrying out their duties.” Focussing that aim on the claimant’s situation meant the employment by the respondent of another cook on the MV Argyle performing those duties. The claimant argued that the respondent had failed to establish that there was a legitimate aim. We do not agree. There was no real challenge to the respondent’s (understandable) position that it needed a cook on the MV Argyle who in turn formed part of its overall workforce who were capable of carrying out their duties. The battleground then narrowed to the question; was the dismissal of the claimant a proportionate means of achieving it? There was no real dispute between the parties on the relevant law. We considered the question in the context of what was said in Homer and Naeem. On the respondent’s written case there must have been no “less harsh” alternative and argued that the only alternatives to dismissing him would have been to have kept him employed until the restrictions on his ENG1 were lifted, or to have moved him into an alternative role. In our view a less harsh alternative would indeed have been to retain him in employment with a view to an improvement in his health and having the restrictions removed from the ENG1. Two days after the claimant’s appeal hearing the respondent was aware of the fact that he had no sick leave to take, and thus if he was absent within the following 12 months, the respondent would not need to pay him (page 218). Retaining the claimant in employment beyond February 2023 would have not been a salary cost for the respondent. In the circumstances of an improvement in his health and him trying to prove he was still capable of doing his job (issues repeated in the email on page 218) a less harsh alternative would have been to do so. In our view therefore dismissal was not a proportionate means of achieving the stated aim. We answer issue 9 “no”.

[141]The first question on the allegation of a failure to make reasonable adjustments (issue 10) is; “Did the Respondent apply a PCP to the Claimant? The alleged PCP relied on by the Claimant is a requirement for the Claimant to remain in a seafaring role”. In his written submission the claim based on that requirement was withdrawn. The claim which proceeded on that basis is therefore dismissed as per order 3 of the judgment.

[142]At paragraph 8 of his written submission the claimant said he “had identified two PCPs with regard to his complaint in terms of Section 20 and 21 of the Equality Act 2010.(1) not allowing him to do a phased return on his own vessel with the ENG1 restrictions as adjustments (14 September 2022). This head of claim was dismissed by reason of the allegation being dated prior to the point at which she had found him to be disabled.

(2) the requirement to remain in a seafaring role (found to be ongoing between 22nd September and 20th March 2023). She determined that this claim would depend upon whether and if so, when a duty to make a reasonable adjustment arose and whether it was after mid-January 2023).” The second was withdrawn (as above). At paragraph 10 he said, “With regard to the first while the decision and the application of the PCP was found to pre-date the finding of disability, it is submitted that this was an ongoing state of affairs, and that this PCP continued to apply up to the time of dismissal and refusal of the appeal, and thus this claim of a failure to make reasonable adjustments is relevant to the Section 15 claim as set out above in so far had there been an adjustment to this PCP as at the date of dismissal this would have averted the dismissal and as such, goes to both reasonableness in terms of unfair dismissal and the Section 15 claim.” Ms Todd forcefully argued that this first PCP should not be considered and the claim based on it should fail. We agree. Two points are relevant. First, it was previously dismissed by EJ Kearns from which decision no appeal was made. Second, we took account of what was said by the Court of Appeal in the case of Parekh v The London Borough of Brent

[2012] EWCA Civ 1630

. “A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list of issues is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: see Land Rover v. Short Appeal No.

UKEAT/0496/10/RN

(6 October 2011) at [30] to [33]. As the ET that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence.” In our view the general view prevails in this case. We also took notice of what that Court said in Mervyn v BW Controls Ltd

[2020] IRLR 464

. Departure from an agreed list of issues while not exceptional is nonetheless unusual. It held that “An amendment before any evidence is called is quite different from a decision on liability or remedy which departs from the list of issues agreed at the start of the hearing.” What the claimant seeks to do (after this tribunal had heard all of the evidence) is to amend the list of issues to add in a claim which neither the respondent nor the tribunal anticipated or could have reasonably anticipated. To do so would not afford the respondent any opportunity to answer it. That is inherently unfair. The respondent was entitled to assume that (as per EJ Kearns’ judgment) the claim had been dismissed. On that analysis, the claim under section 20/21 does not succeed. It is sufficient that it is dismissed on it being withdrawn. It is not necessary for us to answer issues 11 to 14.

[143]In summary therefore we have found that the claimant was unfairly dismissed and that the dismissal was unfavourable treatment contrary to section 15 of the 2010 Act. The respondent thus discriminated against him, that discrimination arising from his disability.

Remedy

[144]Issues 15 and 16 focus on awards of compensation. Neither a declaration nor a recommendation is sought under section 124(2) of the 2010 Act. We do not make either.

[145]By his effective date of termination (3 March 2023) the claimant had 5 years’ continuous service. By that date he was 64 years of age. His agreed gross weekly wage was £728.48. His basic award is thus £4,282.50.

[146]Section 124(2)(b) of the 2010 Act provides that the tribunal may order the respondent to pay compensation which (as per subsection (6)) corresponds to the amount that could be awarded by the sheriff under section 119. That section (4) provides that damages may include compensation for injury to feelings.

[147]The claimant has lost earnings by virtue of discrimination. Loss of earnings is a relevant claim under section 124 of the 2010 Act. The payment in lieu of notice covered the period to 3 March 2023. His schedule of loss seeks loss of net weekly pay of £586.88. The schedule reflects the fact that the claimant was paid £8717.72. This was (as per page 184) compensation for loss of earnings. That amount equates with 14.85 weeks net pay. We have rounded it up to 15 weeks. Accordingly, the claimant has no loss of net pay (and thus no loss) in the period between 3 March and 16 June 2023. In that period (and beyond) he was looking for work. He received Job Seekers’ Allowance between 11 July and 18 September. On that latter date he began earning £477.45 per week.

[148]In the period 16 June to 18 September his losses were (13 weeks at £586.88 per week) £7,629.44. In the period 18 September 10 June 2024 his losses were (38 weeks x £109.43) £4,158.34. The claimant sought future loss to 19 July 2025. We consider that an appropriate period is 26 weeks. Future loss is therefore £2,845.18.

[149]The total award for loss of earnings is therefore £14,632.96. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 do not apply to compensation for discrimination.

[150]The respondent argued that the claimant had failed to mitigate his losses in the period between March and July 2023. Two points are relevant. On our analysis he had no loss in the period between 3 March and 16 June. Any period of alleged failure to mitigate is thus minimal. Second, “The burden of proof is on the wrongdoer; a Claimant does not have to prove that he has mitigated loss” (Cooper Contracting Limited v Lindsey

UKEAT/0184/15/JOJ

now reported at [2016] ICR D3 paragraph 16). The respondent has not shown that the claimant has not mitigated loss in that period.

[151]On the question of damages for injury to feelings we took account of what was said in Vento v Chief Constable of West Yorkshire Police

[2003] ICR 318

and the relevant Presidential Guidance for claims presented after 6 April 2023. The lower band is £1,100 to £11,200 (less serious cases); the middle band is £11,200 to £33,700 (cases that do not merit an award in the upper band); and upper band is £33,700 to £56,200. The claimant sought an award of £15,000, i.e. within the middle band. We disagree with that analysis. His evidence about the impact of his dismissal was (unsurprisingly) not challenged. But it was in very short compass. While he told us that his doctor had prescribed anti-depressant medication, we do not know when, or for how long. There was no evidence of the impact on him other than as a cause of friction at home. Again, we had no evidence to find the extent (impact or period of time) of that state of affairs. We decided that damages for the injury to feelings based on this evidence should be above the midpoint of the lower band. We award £8,000.

[152]Interest (at 8%) is due between 3 March 2023 and 14 June 2024 (the date of calculation) on the award for injury to feelings ( Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996). That sum is (£1.75 per day over 469 days) £820.75.

[153]Interest (at 8%) is due between 24 October 2023 (the mid-point of the date of the act of discrimination complained of and the date and 14 June) on damages for lost earnings. That sum is (£3.21 per day over 234 days) £751.14.

[154]Orders 5 and 6 reflect interest due on the awards. Employment Judge: R Bradley Date of Judgment: 17 June 2024 APPENDIX AGREED LIST OF ISSUES UNFAIR DISMISSAL

[1]Was the reason, or principal reason, for the dismissal one of the five potentially fair reasons set out in section 98(2) ERA, specifically capability?

[2]If so, did the Respondent act reasonably in treating that reason as sufficient to justify dismissal in terms of section 98(4) ERA? In particular:- i. Did the Respondent adopt a fair process prior to reaching the decision to dismiss? ii. Did the Respondent appropriately consider alternatives to dismissal? iii. Was dismissal within the band of reasonable responses?

[3]The Claimant alleges his dismissal was unfair for the following reasons: i. He was not afforded a phased return despite this being advised by his GP, OH and the ENG1 doctor; ii. The Claimant was not permitted to try a return to his substantive role in order to have his ENG1 restrictions removed; iii. The Claimant was not afforded the same phased return opportunities as other employees in the company doing the same role iv. The Respondent did not appropriately consider alternatives to dismissal i.e. the Claimant was not afforded the opportunity to return as a Chef and/or a Steward to an alternative vessel; v. The decision to dismiss was premature.

[4]If the Tribunal is minded to find the dismissal unfair for procedural reasons, would compliance with a fair procedure, on the balance of probabilities, have made a difference to whether or not the Claimant was dismissed? DISABILITY DISCRIMINATION

[5]The Claimant was disabled by reason of bursitis from mid-January 2023 onwards. Discrimination arising from disability (s15 EqA)

[6]What was the ‘something arising’ in consequence of the Claimant’s disability? The Claimant says that the restrictions on his ENG1 certificate and his inability to have them lifted and demonstrate to the Respondent that he could do his job were consequences of his disability.

[7]Was the Claimant treated unfavourably because of the ‘something arising’? The Claimant relies on his dismissal and the refusal of his appeal as acts of unfavourable treatment.

[8]If so, did the Respondent know, or could it reasonably have been expected to know, that the Claimant was disabled?

[9]If so, can the Respondent show that the treatment was nonetheless justified as a proportionate means of achieving a legitimate aim? The legitimate aim relied on by the Respondent is maintaining a workforce capable of carrying out their duties. Failure to make reasonable adjustments (ss20 and 21 EqA)

[10]Did the Respondent apply a PCP to the Claimant? The alleged PCP relied on by the Claimant is a requirement for the Claimant to remain in a seafaring role.

[11]If so, did the Claimant suffer a substantial disadvantage because of the PCP?

[12]If so, what adjustments could have reduced or removed the substantial disadvantage to the Claimant? The claimant relies on the following; “to shadow in the substantive (ship’s cook) role to be able to prove that he was able to fulfil the duties of that position.”

[13]Would any such adjustment have been reasonable in the circumstances?

[14]Did the Respondent make such adjustments as were reasonable to avoid the disadvantage?

Remedy

[15]If the Claimant is successful in whole or in part what level of compensation if any for losses should be awarded to the Claimant?

[16]What award for injury to feelings should be made if any?

[17]Did the Acas Code of Practice on Disciplinary and Grievance Procedures apply to the Claimant’s dismissal?

[18]If so, did the Respondent fail to follow the Code in dismissing the Claimant? Was any such failure unreasonable?

[20]If so, should any uplift of compensation be awarded?