Mr K MackayClaimantFortnum O&M (UK) LimitedRespondent
Before
Employment Judge S CowenDate 14 July 2025
JUDGMENT
[1]The Claimant’s application to revoke the judgment of dismissal with regard to the unlawful deduction from wages claim is dismissed.
REASONS
Issues
[1]The Claimant applied on 19 March 2025 for reconsideration of the decision to dismiss upon withdrawal the allegation of unlawful deduction from wages.[2]At the hearing on 23 January 2025 the Claimant informed the Tribunal that he no longer had an unpaid expenses claim, as this had been settled between the parties. The Respondent’s solicitor noted that this had also been raised at a previous hearing with EJ McCluskey on 4 December 2024, indicating then that there was no outstanding money owed and the claim would not proceed. The Respondent asked that the claim be formally dismissed from these proceedings.[3]A Judgment was given after the hearing, which included the formal dismissal of the claim from these proceedings, on the basis that the Claimant agreed that he was not alleging that there was an outstanding sum owed for expenses.[4]The formal dismissal is a procedural step taken when a Claimant confirms that there is a particular part of a case which they no longer wish the Tribunal to make any decision about.[5]The Claimant says in his application that this “is still part of my claim”. He has given no explanation what he meant by this, or what sum he was referring to, nor what had changed since the hearing on 23 January 2025.[6]On the basis that the Claimant was clear and unequivocal at the hearing, had been consistent about this from the previous hearing and confirmed there were no sums outstanding as the expenses claim had been settled, it was appropriate to make the Judgment. It remains appropriate as no evidence of a change in circumstances or error by the Tribunal has been highlighted.[1]The claimant (C) presented a claim which was treated as received on 19 August 2024. He was dismissed by the respondent (R) on 5 July 2024. He complains that his dismissal was because of his wife’s disability (cancer). It is not disputed that C was dismissed, or that his wife is and was at the material time a disabled person in consequence of her condition.[2]The issue for the Tribunal to decide is(i) Did R, because of C’s wife’s disability, treat C less favourably than it did treat or would have treated others by dismissing him?(ii) If so, what is the appropriate remedy?[3]C gave evidence on his behalf and R led evidence from its witnesses, Juha Suomi (JS), C’s line manager in the latter period of his employment, and Laura Tyrie (LT), HR Business Partner. Findings in fact[4]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities The facts found are those relevant and necessary to our determination of the issues. They are not intended to be a full chronology of events.[5]C was employed by R from early January 2024 until his dismissal on 5 July 2025 as a Contract and Stakeholder Manager.[6]Prior to the commencement of his employment, C was issued with a contract of employment signed by him and R respectively on 26 and 30 October 2023. The contract provided that C was to be employed as Contract and Stakeholder Manager and that his duties and responsibilities were set out in an attached job description. He was employed on a salary of £80,000 per annum with an additional car allowance of £6,500 per annum. The contract provided that C’s normal hours of work were ‘initially 37.5 hours per week’ but that the job may require different or longer hours as necessary to meet the needs of the business. The contract did not specify C’s place of work, but an earlier offer letter sent on 18 October 2023 had specified that ‘Your normal place of work will be a mix of home, site and office’.[7]The contract contained the following probation clause: “You are required to complete a probation period of six months to assess whether you are suitable for the role you have been employed to perform. The Company reserves the right to extend the probation period in order to further assess your suitability, where appropriate. During your probation period you will be assessed on your attendance, performance and conduct and you will be required to demonstrate that you have the necessary skills, experience and ability expected of you to allow you to satisfactory undertake the role. The Notice Period clause below sets out the notice period should either party wish to terminate the employment during or at the end of the probationary period. At the end of your probation period you will be informed in writing if you have successfully completed your probation.[8]The notice clause, so far as relevant, provided: ‘The first six months of your employment (subject to any subsequent extension by the Company) will be a probationary period during which the company may terminate the employment by serving 1 (one) week’s written notice.’[9]Although the contract referred to an attached job description, one was not annexed to the contract. However, C was sent a Job Description prior to the commencement of his employment. He did not, at the material time, rejects its terms or propose amendments. In it the purpose of the job was described as follows: “Fortum O&M UK (FOMUK) is responsible under the Management Service Agreement with Fortum Glasgow Limited (associated JV company owned by Fortum and Green Investment Group) to deliver the full management of the company. Separately, FOMUK also delivers project execution oversight.”[10]It had a section headed ‘Main Responsibilities’ as follows: Planning and Complexity - High level ability independently implements procurements of wide range of services (from power offtake agreements, IPC/ APCR handling, authority management etc - Support project execution with local stakeholder management, with special responsibility to manage relations and obligations with SEPA, National Grid, Scottish Power as well as with the landlords for the lay down areas. - Complex combination of commercial technical and legal aspects - Strong commercial drive with understanding of the various key commercial aspects of EfW plant management - Understanding of complex contract structure. - During the operational phase of the project, post commercial operation start date, role include to negotiate and manage commercial agreements for various utilities, materials and services that are not included in the scope of O&M contracts - Together with the waste supply manager manage the contract with O&M operator[11]It contained sections on ‘Accountability’ and ‘People Mgmnt & Relations’ as follows: ‘Accountability - Understand the contract set up - Liaise with project management to proactively identify and execute actions in relation to local stakeholders and landlords - Understand which services that needs to be secured and implement these - Relationship building with needed local stakeholders ‘People Mgmnt & Relations’ - Wide range of stakeholders, such as partners, customers and national and municipal governments stakeholders in the countries of focus - Various stakeholders, in different levels of management in business and project development within Fortum and GIG[12]It had a section headed ‘Other important information about the job:’ as follows: Leading and manage the JV in terms of following: Procurement of key utilities and services including power offtake arrangement Local and national authority and stakeholder management going forward Manage O&M contractor Manage disputes with third parties (not on construction)[13]C was initially line managed by Ola Hokstrand (Head of Waste Management Services UK) (OH). OH had been involved in C’s recruitment and C had informed OH, prior to commencing employment, that his wife had been diagnosed with cancer. C’s wife was diagnosed with cancer in October / November 2023. She underwent surgery at the end of November 2023. C’s employment at that time required travel and, during the recruitment process with R, he had stressed to OH his preference to be based at home on his appointment. In this context he had told OH about his wife’s illness. C’s wife began chemotherapy in January 2024, and her treatment was ongoing from then.[14]On or around 24 January 2024, C agreed with OH certain performance targets which C believed would be used during the review period. C wrote the document in consultation with OH who agreed its terms. It set out three targets as follows: Successful support to the construction of SCEC … Provide adequate influence, support, negotiation and conclusion of construction related agreements to support the water supply, connection to the grid and compliance with SEPA: Sub targets: Establish as SCEC Main point of contact for Scottish Water, SP Energy, SEPA and other key stakeholders. Resolve and progress limitations for the installation of the site water supply with landowners and supply agreements. Provide adequate communications to senior members of Fortum and the board to obtain the relevant consent and authority for these matters … Mobilisation related contracts and agreements Provide influence, support, negotiation and constructive development of key relationships and agreements for the active performance of the live facility: Sub targets: Develop relations and proposals with partners of the district heating network and facility. Work with internal stakeholders to demonstrate contract compliance for the capacity market, O+M direct agreement and environmental permit. Deliver on the variation and project changes to ensure all amendments are captured and agreement revisions are in place. … Stakeholder management … provide visibility influence and develop relations across the Fortum teams and investor relations to be a positive contributor to stakeholder manager and solutions provider.[15]C’s role was concerned with an ‘energy from waste’ project based in Glasgow. The joint venture company (JV) had been established for the purpose of this project on a 50/50 basis between R and Green Investment Group. In 2022, various funding agreements had been entered with the main suppliers, shareholders and lenders. At the time of C’s employment, the Glasgow site was under construction with the intention of completing construction of the biofuel plant and testing by November 2026. It is a multimillion-pound project. In 2022, alongside the other funding agreements, a management agreement had been entered between R and the JV company, Fortum Glasgow Ltd, in terms of which R agreed to provide services to the JV company via R’s own employees or externally resourced support. The JV company itself had no employees. C sat within the management services team within R which provided the services defined in the management services agreement to the JV. There were four people in the team, including C.[16]C was provided with no formal training in his role.[17]OH did not criticise C’s performance during his tenure as C’s manager or offer C any negative feedback on his performance. On a few occasions he praised C about specific tasks which C had carried out (for example C had challenged some shipping costs, leading to cost reductions for R and, on another occasion, he lauded the way in which C had conducted a stakeholder meeting with local residents). OH did not raise with C the issue of C’s probation while he remained C’s line manager. OH had monthly one to one contact with C, either face to face or by videoconferencing when they discussed the progress of the project. He also met with C and the rest of the team on a weekly Teams call to discuss the project.[18]OH ceased to be involved in the business and ceased his line management of C around the end of April 2024. C and his team were transferred to come under the management of Juha Suomi (JS) on or about 1 May 2024. At the material time, JS was Director of Strategy and Business Development. He took on OH’s responsibilities but retained responsibility for many other matters. JS was not based in the UK but in Finland. At the material time (between May and July 2024), Ilkka Toijala (IT) was employed as Director of UK Business. IT was based in the UK and was present in Glasgow more often than JS. When JS took over OH’s responsibilities, it was decided that JS did not need to live in the UK but could perform his oversight remotely with assistance and support from IT who had a more local presence. Although JS took over OH’s responsibility from early May 2024, this was not communicated to C until around mid-May.[19]JS only visited Glasgow around twice a month. C was also not generally office based but usually worked from his home in the borders. C and JS saw each other face to face only very occasionally after JS took over responsibility for C’s management. JS attended (remotely) weekly meetings with C and the rest of the management team, though sometimes, due to other commitments, JS did not join this meeting. JS did not engage with C on a one-to-one basis about the project or about C’s performance. IT was in Glasgow more often. IT met with C in Glasgow from time to time. Some meetings between C and IT were impromptu. The level of contact C had with IT and JS was less frequent and less structured than it had been with OH.[20]Although JS took over responsibility for the Glasgow project and C’s line management from 1 May 2024, he had familiarity with the project from before that date. From November 2023, he had been having almost daily communications with IT as well as having formal and informal meetings when the project was discussed.[21]JS was a task driven and results driven person and manager. When JS took over from OH in May 2024, JS had no familiarity with C on a personal level but had some concerns about the Glasgow project, based on the number of outstanding tasks and jobs against the project timeline. He was aware that the project faced challenges of time and that progress was needed on a number of critical items which were essential for successful completion. Based on discussions with OH and IT in April 2024, JS identified that C was in charge of three crucial issues:(i) land leases for neighbouring land to ensure adequate access during the construction period and the required extension of these;(ii) ensuring connection to mains and water supply; and(iii) renewal of site insurances. As at April 2024, JS had some concerns about how these matters were progressing.[22]On 1 May, when JS became C’s line manager, he wanted to understand C’s probation terms, given the concerns he had over the progress of the project. He also wanted to understand where C and the team’s contractual place of work was. A meeting took place between IT, JS and LT on or about 1 May. He asked Laura Tyrie, People Partner & HR Lead UK (LT) for this information. IT and JS mentioned concerns about C’s performance and behaviour at the meeting but did not go into detail. JS had a concern at the time about the manner in which information and evidence was being collated and presented to the board and steering group by C, though JS did not discuss the detail of this concern at the meeting.[23]On 2 May 2024, LT emailed JS back and said, “I have checked the contract for Kevin and can confirm that his probation period is 6 months, scheduled to end on July 3rd. The location for Kevin states a mixture of Home/Office and Site Based comma there is no mention of which office or say though”.[24]With respect to the leases, JS was concerned about the relationship between C and one of the landlords and how C was managing communications with this landlord. In early May 2024, JS was unhappy about C’s approach to dealing with this landlord and C involving himself in their internal decisionmaking. JS perceived this contributed to a deterioration in the relationship and he believed that this in turn caused or contributed to a decision on the part of that landlord to become litigious and intimate notice that it held R in breach of the lease terms. In the wake of the matter R had an investigation.[25]With respect to the water connection, there was a need to reroute the mains supply. As JS saw it, a critical task for C was to seek consents from the landowners through which the mains pipes would be connected. R had got to a point where all but one of the landowners were willing to agree and external legal advisors had drafted the agreements. Ultimately, because of the dissenting landowner, R required to look at alternative options of re-routing the pipes to avoid the land in question. JS was not familiar with the specifics of C’s communications with the dissenting landowner at the time when he took over from OH but his perspective was that the issue sat with C; that it was a crucial one; it wasn’t on track for successful completion; and he wasn’t reassured that there were plans or proposals being progressed to address the issue. The solution of rerouting, when eventually taken forward by others, took a long period of time to resolve (over a year) and would not have been achievable (in the sense of finalising the plans and works) in the 6 months of C’s probationary period.[26]With respect to the insurance renewal, this was critical because in May 2024, there was a need to agree extra time and budget for the project and to formalise this as well as insurance renewal terms. The terms needed to change because of changes in the value and timeline of the project. C’s task was to liaise with the broker to obtain the insurer’s proposed terms and to present this to the JV board for approval.[27]Neither IT nor JS gave C any feedback on his personal performance, positive or negative, during C’s employment until JS called him on 25 June 2025 on this subject as set out below. However, they felt frustration with aspects of C’s performance.[28]When JS took over from OH, neither OH nor anyone else within R told JS that C’s wife had cancer. LT was aware that C’s wife had cancer because C informed her of this early in C’s employment but she did not inform JS , IT or anyone else of this. She gave C advice about the availability of an Employee Assistance Program to C and his wife with telephone access to support. In the period until 17 June 2024, C did not have cause to ask R for time off or other support in connection with his wife’s illness. He did not update OH or, following OH’s departure, IT or JS of his wife’s ongoing treatment or progress. C didn’t consider it appropriate to do so because he did not feel it was impacting upon is work and he had no need to ask for additional support or flexibility from R during this period. Before he left, OH occasionally used to ask C after his wife. When he left, C didn’t discuss her circumstances with IT or JS at all. Neither IT nor JS were aware that C’s wife had cancer. C did not tell JS that his wife was having chemotherapy.[29]C’s wife was booked for planned surgery in June 2024. The procedure was a reverse stoma. When the operation was booked, her doctors advised that it was a routine procedure and that it was anticipated that she would spend one to two days in hospital after the operation with relatively quick convalescence.[30]On 3 June, C sent an email to JS, copying in others in his team, as follows: Hi Juha I have requested leave on Monday 17th as my wife is booked for an operation. I may may need more days but I will advise of progress. I will be contactable by phone as required[31]At some stage in the period between around 4th and 11th June 2024, JS and C had some discussion about the renewal of insurance for the site and about such information as had been received so far from the broker. They discussed the need for C to go back to the broker for further information.[32]On 12 June 2024, C emailed JS a short email about the premiums for insurance renewal for the site. The sums involved were substantial six figure sums. C’s email forwarded a chain of emails from the underwriter and the broker. His email to JS at the top of the chain said: Hi Juha Please see confirmation that the rate will be held based on the revised figures. Can you confirm if this is acceptable to proceed or if there is further governance required?[33]JS did not respond. However, JS felt frustration with C’s email and approach. JS did not speak to him on 12 or 13 June to ask C to compile the information into a presentable format to be digested by the board and to inform their decision making. JS did, however, feel irritated that C had not done so and that C did not appear to show the understanding he would expect of a manager of C’s seniority regarding how such matters should be progressed and prepared for board ‘consumption’.[34]On Friday 14 June, C, having received no response from JS, sent a WhatsApp to him about the insurance renewal on the team’s WhatsApp group. He said, “I am off Monday but contact by phone if needed. Can you check the insurance info @Juha Suomi and let me know if sufficient.”[35]On Monday 17 June 2024, C’s wife was admitted for her operation. Unfortunately, there were complications, and it was evident her recovery wouldn’t be as predicted. C sent JS a WhatsApp as follows: “Hi Juha, my wife had an operation today and all seems well but I will need another day's leave to help with things at home. I will book the days absence when I return if that's OK.” JS replied on 18 June: “Hi Kevin, glad to hear. Definitely fine with me and best wishes.” Later on Tuesday 18 June, C updated JS further. He said, “… Progress but sore and nauseous…so taking a bit of time to recover. Might need another day or two.” He went on to give the mobile number to reach him on if JS needed to discuss anything. JS replied the next morning and said, “Noted and take care”.[36]At some stage during C’s absence, JS prepared the insurance terms into a ‘package’ for the board’s consideration. He was unhappy to have to do this himself and that it had not been attended to by C before his absence.[37]On Friday 21 June, C updated JS again and told him it looked like his wife was going back for further surgery that day. JS replied the same day to say, “best wishes”. During none of these communications did C mention the specifics of his wife’s condition. The proposed further surgery did not proceed on Friday 21 June because C’s wife was diagnosed with sepsis and pneumonia. She was very poorly, and it was an extremely anxious and distressing time for C.[38]C returned to work (from home) on Monday 24 June 24. He tried to call JS that day to update him but did not manage to get him. JS messaged him acknowledging he’s missed C’s calls and asking how everything was.[39]On 25 June, JS, IT and LT had an early morning call to discuss C’s probation. C’s six-month probation period was due to come to an end the following week. JS and IT expressed concern about C’s performance and behaviours in the role but did not discuss this in any detail. It was they who initiated the call to LT to ask her about next steps. JS felt he had not had sufficient time to evaluate C’s suitability for the role, but at that time he did have full confidence in C based on the project progress and on what he saw as a lack of output in terms of ‘Board ready’ or ‘steering group ready’ plans and formal communications. He was, nevertheless, conscious that he had only been C’s line manager for two months. JS had at no time accessed the targets which C had agreed with OH to consider C’s performance against these specifically. So far as JS understood the matter, these targets were relevant to assessment for bonus purposes only and did not require to be taken into account for the purpose of assessing probation. He had, however, reviewed the job description for C’s role. The three discussed the matter and agreed to extend C’s probationary period by three months. They agreed that JS would call C to inform him of this.[40]On Tuesday 25 June, C was working from home when JS called him. He asked C how things were going and C told him his wife was still very ill and that he was taking care of the day-to-day domestic activities on his own (C has two children). JS went on to say that there was a need to have a discussion on C’s performance during his probation period, especially since the period was coming to an end. JS told C he was unhappy with C’s completion of certain tasks. JS declined to go into the details of his concerns about C’s performance. C pushed back on this and said he believed that all the tasks had been performed satisfactorily, and he referred to that having been the feedback of OH. JS then suggested to C that, rather than making an evaluation based on the 6 month period, he would like to suggest a threemonth extension. C declined this suggestion. He told JS that he had other options or alternatives in the market, if that was the way they wanted to go about it, or words to that effect.[41]During this conversation, JS did not tell C that it was inconvenient that C had to take time off. JS did not say, ‘that’s it, we will be terminating your employment’. C did not offer or suggest that R extend the probation period. As set out above, that offer was put forward by JS and rejected by C.[42]After the call on 25 June, JS sent an email to IT and LT to update them on what had happened during the call, including the fact that C objected to an extension. He ended with the observation: “The decision is now ours but unless we see added value offering him the three months probations extension option, we should make our internal decision tomorrow to either terminate the employment before the end of the original probation period or accept the current state going forward. From the business point of view I cannot see we continue as is.” JS believed C when he told him that he had other options in the market and, from JS’s perspective, he believed the call with C on 25 June had ended in a straightforward, business-like way.[43]On the morning of 26 June, there was a further call between IT, JS and LT. JS had made a decision to terminate C’s employment in light of C’s rejection of a probation extension. They agreed that JS would call C to inform him and that LT would prepare a draft letter confirming the termination. On 26 June 24, JS left C a voicemail asking him to call back. C did so and they had a brief call during which JS told C that the decision had been made to terminate his employment and that HR would send through the paperwork. At that stage, C suggested he would entertain an extension but by then JS was unwilling to extend.[44]Later on 26 June 2024, LT emailed C a letter giving notice of the termination of his employment in the following terms. In the covering email, LT explained that C would be placed on garden leave from close of business on 26 June until his employment ended on 5 July 2024. “Dear Kevin, Further to our discussion on Tuesday 25th June during which we discussed the concerns I have in relation to the completion of tasks and your overall performance during your probation period. I write to confirm that your employment will be terminated on 5th July. We discussed during this call that the company would like to extend your probation period by additional 3 months to allow you time to improve your performance based on the feedback given. At the suggestion of this extension, you objected to this and stated that you believed your performance to be acceptable and all tasks had been completed as per discussions you had with your previous line manager - Ola Hokstrand. Unfortunately as you are not in acceptance of this extension to your probation period or the concerns the company has in relation to the overall performance, I write to confirm that your employment with Fortum O&M UK as Contract and Stakeholder Manager will be terminated on Friday 5th July…[45]Later that afternoon, C sent a reply to LT which he copied to JS and IT. He also copied to LT’s boss and other more senior managers in the company. He said, so far as relevant: “Hi Laura … unfortunately I disagree with the process of termination and consider this a breach of my employment contract. … There are also clear terms “during your probationary period you will be assessed on your attendance, performance and conduct”. No such reviews have taken place and I have not had any 121s or review meetings with my manager Juha Suomi. I have documents supporting reviews with my previous manager... that demonstrated sufficient achievements of the work allocated tasks, performance and attendance. I have suggested an extension to the probationary to Juha Suomi today as an alternative to termination but this has clearly been declined but demonstrates a further breach of the terms of my employment under UK law. All indications from Fortum were positive for my performance up to the date of Monday 17th June when my wife was admitted to hospital for surgery for bowel cancer. I requested days leave and predicted I may need further days … I [sic] to extend the leave due to complications... My manager was advised of these developments but has taken exception to me taking this time off as he had to provide cover. Fortum were made aware of my wife's ongoing treatment prior to me joining and I was assured I would be supported appropriately. The phone call from Juha Suomi after my return to work has confirmed this was the reason he wants to terminate my contract. … There is clearly an opportunity for me to pursue a case against FGL under UK employment law and I reserve the right to refer this communication in previous FGL documentation and emails. Considering the board meeting planned for tomorrow, I am however open to an alternative more amicable departure that includes an NDA.[46]On 1 July 24, LT, following discussion with JS to confirm his account of matters, LT prepared a response to this email on JS’s behalf which JS reviewed and signed off before it was sent to C. The response refuted various points C made including his suggestion that his attendance had been raised as an issue during the call and that it had played any role in the decision making.[47]C was placed on garden leave from 26 June, as proposed, and his employment came to an end on 5 July pursuant to the written notice served by R. Between 5 July 2024 and October 2024, C searched for other work.[48]C’s monthly net pay with R at the time of the termination was £4,666.22. C secured work for another employer, Logan Energy from around October 2024 to January 2025. His annual salary with this employer was £71,000. During his employment he earned the following net sums paid at the end of each specified month: £1,998.45 (October); £6,309.09 (November); £3956.55 (December) and £2,489.39 (January). Since his employment with Logan Energy ended, C has been unavailable to seek further employment because his wife’s situation has deteriorated and he has been committed to caring for her. Observations on the evidence[49]There were a number of areas of factual dispute.[50]Before discussing the specifics of these, we make some general observations about the witness evidence. We found that both C and JS displayed unusually weak recollections of events and in particular of the nature, frequency and content of the personal interactions between themselves. Both showed a lack of recollection of what was said during their calls / meetings in the period prior to the critical interactions in June 2024, or (roughly) when or how those took place. We acknowledge that, by the time they were giving evidence, it was around a year or more after the events in question, but even allowing for the impact of fading memories, the lack of meaningful evidence from either witness when asked questions about their interactions before June 2024 was striking.[51]Both also showed a reluctance to give any account at all of how conversations went in circumstances where they could not (as the Tribunal would expect) provide a verbatim account of the interaction in question. Yet both witnesses were much more forthcoming with detail when it came to describing the work involved with the project. The impression was that, before 25 June 2024, their individual interactions on a one-to-one basis had been limited and that both witnesses were focused much less on personal interactions at work and much more on tasks and objectives to the extent that those personal interactions were retained far less distinctly in their minds.[52]This was not a feature of LT’s evidence who had an appreciably better grasp of the broad timeline and recall of the relevant interactions in which she had been involved. We found LT gave her account of matters in a straightforward way which was not self-serving. From the detail she provided, the Tribunal felt reassured her recollection of the interactions she described was genuine.[53]As to the specific factual conflicts, there was a dispute between the parties regarding whether JS proposed to C a three-month extension period during their call on 25 June 2024. C’s evidence was that JS did not do so, and indeed that, during the call on 25 June, JS told him ‘that’s it, we’re terminating your employment’ when C says he accused JS of not being specific about performance concerns. JS gave evidence that he offered a three-month extension which C declined and that C told him words to the effect that he had other options. JS’s position was that he did not intimate termination there and then; he was a little surprised by C’s reaction to the prospect of an extension but also accepted at face value that C had other prospects in the sector which he would prefer to pursue rather than be subject to an extended probation with Fortum.[54]We preferred JS’s account of the call. It was consistent with LT’s account of what was discussed and agreed with her and IT shortly before the call. It was likewise consistent with JS’s email to IT and LT soon after the call when he confirmed what had been discussed. It seemed to us implausible that JS would depart from the company’s agreed way forward, much less that he would deceive his colleagues by misleading them about what he put forward in the conversation. JS’s account of the matter was also consistent with what was recorded in the termination letter of 26 June which narrated his account of the discussion of the extension. C in his response to that email did not deny or dispute that account of the call on 25 June. More compellingly still, C, in his own ET1 lodged on 9 August 024, stated that on the 25th June, Juha Suomi called him to advise Fortum wanted to extend his probationary period (p.30 of the bundle). When the terms of the ET1 were put to C, he gave no meaningful explanation for the discrepancy. We regret to say that we found this and certain other evidence C gave about his earnings in subsequent employment (briefly outlined below), to be troubling.[55]Another disputed aspect of the content of the call on 25 June is C’s account that JS told him it was inconvenient that C had to take time off because of his wife’s illness. C gave evidence to this effect and had made this allegation in his ET1 where he says, “on the 25th of June Juha Suomi called me to advise Fortum wanted to extend …and he [JS] was concerned he had to be involved in some of my duties when I was on leave.” In his email to R on 26th June, C said: ”I [had] to extend the leave due to complications with my wife’s recovery as I was unable to focus on work during this time. My manager was advised of these developments but has taken exception to me taking this time off as he had to provide cover. Fortum were made aware of my wife’s ongoing treatment prior to me joining and I was assured I would be supported accordingly. The phone call from Juha Suomi after my return to work has confirmed this was the reason he wants to terminate the contract.”[56]JS’s evidence is that he never mentioned C’s wife’s illness or C’s absence during the call on 25 June. LT gave evidence that after discussion with JS to confirm his account, she drafted a response to C’s email of 26 June a few days later from JS which said: “Your attendance was not at any point raised as an issue during or after any of the discussions we had as this did not play any role in my decision-making…”[57]We preferred JS’s account that he did not raise the question of C’s wife’s absence as an issue during the call. We considered that for JS to have done so, would appear somewhat at odds with the tone and terms of the WhatsApp messages which JS had sent during C’s absence. JS’s account was also consistent with the letter sent to C on 1 July.[58]We noted that, in his email of 26 June, C did not assert that JS had told him in the call the previous day that JS was taking exception to having to provide cover during C’s time off. Rather, C’s assertion in his email about JS taking exception to his absence can be construed as based on C’s deduction and inference as opposed to an assertion this was explicitly said. If JS had said in terms that he was unhappy because he had to cover for C during his recent leave, it seems likely that C would have recorded as much in his email.[59]C suggested that JS knew about his wife’s disability. This assertion was made rather late in C’s evidence. During evidence in chief, C was asked by the Employment Judge (EJ) if he kept OH and IT up to date about his wife’s chemotherapy and C said he did not. He said it was ‘not appropriate’ as it was not impacting work. When the EJ asked if IT was aware of his wife’s disability, he said he was not sure. When asked generally about interactions with JS after he took over his management, C said that, when he became aware JS was his manager, he had very little interaction with him. At that point in his evidence in chief, when being asked about the period up to 17 June, C described no discussion with JS about his wife’s cancer.[60]During cross examination, C refused to be drawn on how many times he had met JS, saying he couldn’t remember. Eventually he committed to a position that ‘it wasn’t several’ and latterly he said “I’d say a maximum of two times”. When asked if it was in the Glasgow office, he didn’t appear able to answer because he asked Ms McColl which one, and commented that there were two. When she asked how many times he had met JS in each of the offices, he could not or would not answer. When matters were put to him about work related discussions he’d had with JS, he said he couldn’t remember.[61]Subsequently, during panel questions, the EJ asked C what his understanding was about whether JS was aware of the specifics of his wife’s condition, and C said he believed JS knew about it. He was asked for the basis of that belief and said it was based on a discussion between him and JS. He was asked what was said and he answered that his wife had been receiving chemo. When asked whether this discussion was before or after JS become his line manager, C said that LT also knew his wife had cancer.[62]Overall, we found C’s evidence about the alleged conversation with JS about his wife’s chemo prior to 17 June unconvincing. It was mentioned late in his evidence and C was unforthcoming with details of where or when the conversation had taken place or the context in which he chose to share this personal information. Earlier in his evidence, he had been clear that he had more frequent contact with both IT and OH, and a better relationship with OH, but that he had felt it ‘not appropriate’ to update these individuals on his wife’s treatment because it wasn’t impacting on his work.[63]A further factual conflict was the question of whether JS gave an instruction on 12 or 13 June that C should prepare the insurance renewal information in a format appropriate for the board. C said he did not do so. JS gave evidence that he did so, following receipt of C’s email of 12 June on the matter. He said he gave guidance to C on how to prepare a presentation for the board’s purposes. JS also gave evidence that in the same interaction he instructed C to go back to Marsh, the broker, for further information. C said that JS did not respond in any way to his email of 12 June. No email was produced from JS replying to C’s email. C’s WhatsApp of 14 June said, ‘Can you check the insurance info @juha Suomi and let me know if sufficient’. We preferred C’s account that there was no response of any kind from JS between his email of 12 June to JS and his follow up WhatsApp on 14 June 2024 chasing JS for a response. That seems to us to be consistent with the written communications of 12 and 14 June produced to us.[64]However, while we conclude JS’s evidence was inaccurate about the timing of any discussion, we accept on the balance of probabilities that there had indeed been some earlier discussion between C and JS about the matter of the insurance renewal. We accept that JS had discussed with C the need to go back to Marsh for further information. That appears consistent with JS’s evidence about the discussion relating to budget changes at the time and with the email chain between C and the Marsh contact, and particularly C’s email on 11 June to the broker when he said, “Apologies for the delay, there was some debate regarding the latest budget values so I suggested more accuracy is prudent to ensure compliance with the policy terms. My confirmed numbers as follows, can you review and revise…” On the evidence before us, it is not, however, established hat the earlier discussion extended to JS giving guidance on board presentation formats. We do accept, however, that JS felt a keen frustration with C, a senior employee, at what JS saw as a lack of understanding on C’s part about this aspect of the work he was employed to carry out.[65]We mention finally another aspect of C’s evidence. The matter related to the issue of remedy which, in the event, we do not require to decide. Nonetheless, we record the sequence around this because it concerned the panel and contributed to our assessment of C’s evidence more generally. C was ordered on 2 April 24 by EJ Campbell to provide information and documentation by 16 April 2024 about his income and benefits in subsequent employment with a firm called Logan Energy. C did not comply with this Order. He emailed the Tribunal on 2 April and asked if the documentation to be produced could be limited to payslips from Logan Energy. In the absence a response from the Tribunal, he did not provide any of the information or documents within he ambit of the order, including any payslips. The matter was raised by Ms McColl at the hearing. At that point, C had already given evidence to the Tribunal that his salary with Logan Energy was £60,000 per annum.[66]On 2 June, the Tribunal ordered C to send payslips with Logan Energy to the Tribunal and to R. C then objected that he did not have payslips notwithstanding the terms of his communication to the Tribunal on 2 April 2024. We ordered that, failing payslips, C should produce bank statements showing the income from this employer. The documentation produced showed that C’s earnings with Logan Energy were not based on a salary of £60,000 per annum as C had told the Tribunal but on a salary of £71,000. We were also taken by Ms McColl to an ET1 C had submitted against Logan Energy on 19 February 2025 where C had recorded that his salary with Logan Energy was £72,000. We found C’s approach and evidence on the sums earned in mitigation troubling. We regret to say that we had doubts that the disparity between the figure C gave the Tribunal and the correct figure was a matter of genuine error. Relevant Law Direct discrimination
Relevant Law
[67]Section 13 of the EA is concerned with direct discrimination and provides as follows: “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[68]According to section 23 EA, “on a comparison for the purposes of section 13, … there must be no material difference between the circumstances relating to each case”. The relevant “circumstances” are those factors which the respondent has taken into account in deciding to treat the claimant as it did, with the exception of the protected characteristic (here, the element of race) (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11). A person can be an appropriate comparator even if the situations compared are not precisely the same (Hewage v Grampian Health Board [2012] UKSC 37). The claimant does not need to point to an actual comparator at all and may rely only on a hypothetical comparison.[69]Very little direct discrimination today is overt, and it can be necessary to look for indicators from a time before or after a particular decision which may demonstrate that an ostensibly fair-minded decision was, or equally was not, affected by a discriminatory bias (Anya v University of Oxford [2001] IRLT 377, CA). Sometimes evidence is led of so-called ‘evidential comparators’. These are actual comparators but whose material circumstances in some way differ from those of the claimant. Their evidential value is variable and is inevitably weakened by the extent of the differences in material circumstances from the claimant’s (Shamoon).[70]For a direct discrimination complaint to succeed, it must be found that any less favourable treatment was because of the protected characteristic, though the discriminatory reason need not be the sole or even the principal reason for the respondent’s treatment. It must be an ‘effective cause’. In JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, CA, LJ Elias summarised the position as follows: “5 … This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial – must be the claimant’s disability. …”[71]The protected characteristic said to be the reason for the treatment complained of will usually relate to the personal circumstances of the claimant. However, section 13 does not require this; the protected characteristic can belong to another individual. What needs to be established is only that the treatment was because of that characteristic. This is sometimes referred to as ‘associative discrimination’.[72]The EHRC Employment Code states that this form of discrimination can occur in various ways. At paragraph 3.19, the Code gives the example of a father caring for a disabled son who needs to take time off work when his son is sick or has appointments. In the example, the father is eventually dismissed and the Code states “the dismissal may amount to direct disability discrimination against the worker”.[73]However, as is the case with a ‘standard’ or ‘non-associative’ claim of direct discrimination, what must be proved is that the protected characteristic of the other person was an effective cause of the less favourable treatment or, put another way, that the other person’s disability was the reason why the employer treated the worker less favourably.[74]Showing less favourable treatment ‘related to’ a disability does not suffice. The less favourable treatment must be because of the disability. The required comparison – be it based on an actual or hypothetical comparator – is between the treatment of the claimant and the treatment (or would be treatment of the comparator(s).[75]In High Quality Lifestyles Ltd v Watts [2006[ IRLR 850, EAT, the EAT ruled that the lower tribunal had erred in its construction of direct discrimination under s3A(5) of the former Disability Discrimination Act 1995 when it failed to construct a correct hypothetical comparator. The Claimant was an HIV positive care worker who was dismissed because of the risk of transmission of the virus to users of the Respondent's health care facilities.[76]The tribunal of first instance determined that the individual was directly discriminated against when his employer dismissed him on account of the risk of transmission of HIV to others. The employee was a support worker providing specialist services to people, some of whom, were prone to challenging behaviour. It was not unknown for support workers to be injured by service users with injuries drawing blood occasionally reported.[77]The EAT considered the attributes to be imputed to a hypothetical comparator. It said: “The error which the Tribunal made … was in failing to impute relevant circumstances to the hypothetical comparator. The circumstances were not, as the Tribunal found, that the comparator should have a communicable disease…. This attribute must carry the same risk of causing to others illness or injury of the same gravity, here serious and possibly fatal. If the Tribunal found that the comparator would have been dismissed, then the claimant has not been less favourably treated.”[78]In Stockton on Tees Borough Council v Aylott 2010 ICR 1278, CA, the Court of Appeal considered Watts. It observed that while a tribunal must attribute the same abilities and other relevant circumstances to the comparator, and that failure to do so may be an error of law, the comparator is not required to be a ‘clone’ of the claimant. Further, a failure to construct a hypothetical comparator does not necessarily lead to an error of law in the tribunal’s decision. In Aylott the Court of Appeal endorsed the Tribunal’s construction of the hypothetical comparator. In that case, the Tribunal had identified a comparator with a similar sickness absence record as the employee and had (correctly) ignored certain other circumstances which the CA found were not relevant for consideration (behavioural and performance difficulties which stemmed from his disability). Burden of Proof (EA claims)[79]Section 136 of EA deals with the burden of proof. It provides, so far as material, as follows: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to— (a) an employment tribunal; …”[80]The effect of section 136 is that, if C makes out a prima facie case of discrimination, it will be for R to show a non-discriminatory explanation.[81]There are two stages. Under Stage 1, C must show facts from which the Tribunal could decide there was discrimination. This means a ‘reasonable tribunal could properly conclude’ on the balance of probabilities that there was discrimination (Madarassy v Nomura International plc [2007] IRLR 246, CA). The Tribunal should take into account all facts and evidence available to it at Stage 1, not only those which C has adduced or proved. If there are disputed facts, the burden of proof is on C to prove those facts. R's explanation is to be left out of account in applying Stage 1. However, merely showing a protected characteristic plus less favourable treatment is not generally sufficient to shift the burden and progress to Stage 2. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed un unlawful act of discrimination or other prohibited conduct. ‘Something more’ is required (Madarassy).[82]Although, at Stage 1, a tribunal must exclude the substance of the employer’s explanation, it is not excluded from drawing inferences from the fact that there are inconsistencies in an employer’s explanation (Veolia Environmental Services UK v Gumbs EAT/0487/12/BA). If C shows facts from which the Tribunal could decide a discriminatory or other prohibited act has occurred, then, under Stage 2, R must prove on the balance of probabilities that the treatment was ‘in no sense whatsoever’ because of the protected characteristic or protected act (Igen v Wong [2005] IRLR 258).[83]There are cases where it is unnecessary to apply the burden of proof provisions. These provisions require careful attention where there is room for doubt as to the facts necessary to prove discrimination or other prohibited conduct but they have nothing to offer where the Tribunal is in a position to make positive findings one way or the other (Hewage). Submissions[84]Both C and Ms McColl gave oral submissions. The entire content of both submissions has been carefully considered and taken into account in making the decision in this judgment. Failure to mention any part of these submissions in the judgment does not reflect a lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, in which we set out where the submissions are accepted, where they are not, and the reasons for this. Discussion and Decision[85]We are in a position to make positive findings in this case about R’s reasons for dismissing C. We accept, on the balance of probabilities, that JS dismissed C because he was not persuaded of C’s capability to perform the role based upon his perception of C’s performance in the role during the probationary period and because C had been clear that he would not accept an extension of that probationary period .[86]We come to this conclusion based on the evidence of JS and LT. We accept that it was JS who made the decision to dismiss C and we find it established as a matter of fact that JS was not aware that C’s wife had cancer or more generally that she had a condition that amounted to a qualifying disability under the EA. We accepted the evidence of JS that he lacked confidence in C’s performance in relation to(i) his presentation of insurance and other information to the JV board,(ii) his approach to his relationship with one of the landlords whose lease R needed to extend, and(iii) his progress in relation to the objective of ensuring mains water supply to the site. We accepted that these genuinely held concerns caused him to reach the decision he did, and that C’s wife’s disability (of which we find JS was unaware) had no influence whatsoever on his decision-making.[87]We wish to be clear that we do not make a finding as to whether, objectively, C was performing well or poorly. It is not necessary to do so. We accept that JS’s genuinely held perception, whether fair or harsh, was that he was not satisfied by late June based on what he knew of the project progress that C had shown the necessary skill and ability to undertake the role. The role itself was evidently a senior and demanding one. We likewise make no finding regarding whether R’s management of C’s performance was in accordance with best HR practice or indeed whether it was ‘reasonable’. We acknowledge C’s understandable criticism that latterly in his employment there was a regrettable lack of feedback of a structured or even unstructured nature. However, the reasonableness or sophistication of R's probationary review process is not what we are charged with assessing in this case. Ultimately, we are satisfied that JS’s concerns, together with C’s refusal of his proposed three-month extension, was the reason why JS decided to terminate the employment.[88]Given our positive conclusions on R’s reasons for dismissing C, it is not necessary to apply the burden of proof provisions in this case (Hewage). However, for reasons explained below, based on all of the facts and circumstances of the case, we conclude that, had it been necessary, C would not in any event have discharged Stage 1.[89]Taking into account the totality of the evidence (but excluding from consideration R’s explanation for the dismissal) we are not persuaded an inference of disability discrimination can properly be drawn. In reaching that conclusion, we considered holistically the cumulative effect of all of the primary facts.[90]As we understood C’s submission, he invited us to draw an inference of discrimination based on the following matters:a. that R’s criticism of C’s performance was vague;b. that C had spent 35 years in the industry with an element of success;c. that JS failed to participate in meetings and calls with him to discuss his performance;d. that C had been off the week before the decision was made to spend time with his wife in hospital and attend to domestic tasks for their children;e. that there had been no discussion with C or probationary review before C took time off in the week commencing 17 June despite R knowing from 3 June that C had scheduled time off in that week because of wife having an operation.[91]We considered whether from these matters and the other facts and circumstances, the Tribunal could infer a direct link between C’s absence to care for his wife and the termination of his employment. We understand C’s case to be based on his contention that such an inference should be drawn. C also suggested in his submission that JS realised that C’s requirement for time off in connection with his wife would happen again and that such distractions could play a part in C not prioritising reporting to the JV board.[92]We leave out of account R’s explanation of JS’s concerns about C’s performance for the purposes of Stage 1. Ignoring that explanation, we are not satisfied that could reasonably and properly conclude that R dismissed C because of C’s wife’s cancer. We identified certain fundamental difficulties with C’s case. The first is that it is not established that the decision maker, JS, knew about his wife’s disability. That is one of the primary facts which we require to factor into our consideration at Stage 1, though we must exclude the reason R puts forward for the dismissal. It seems to us that this lack of awareness is fatal to C’s claim. However, even if we are wrong in that, a further matter which is highly problematic for C is the comparative assessment the Tribunal requires to make. At its highest, C’s case would seem to be that we should infer he was dismissed because of his absence which, he says, was in turn in consequence of his wife’s disability.[93]We doubt that would suffice to sustain a direct discrimination complaint on the facts and circumstances here (even if JS’s lack of knowledge is ignored). As set out in the relevant law section, in deciding whether there was ‘less favourable treatment’ than would be meted out to a hypothetical comparator, there must be ‘no material difference between the circumstances relating to each case’. We construct the hypothetical comparator in the context of this direct associative disability discrimination claim as another employee of R who:a. is seniorb. is under their probationary periodc. has taken time off to support their spouse (initially one day)d. does so in circumstances where their spouse is admitted to hospital for a planned operatione. requires to extend their time off to one week because the spouse develops complications following the operationf. the spouse is in hospital for surgery and is in very poor health following the development of complications but is not disabled for the purposes of s.6 of the EA.[94]Even if we found that JS dismissed C because he was frustrated at having to cover work in C’s absence to support his wife (which we do not), there is nothing in the evidence to sustain an inference that JS would have treated the hypothetical comparator any differently, had the absence been his motivation. Although, per Hewage, it has not been necessary to apply the burden of proof provisions, had we done so, the case would not have surmounted Stage 1 to shift the burden to R. If we are wrong in that, R would in any event have discharged that burden of showing a non-discriminatory explanation.[95]As explained, we have found on balance that (i) JS, the decision-maker, did not know that C’s wife was disabled, albeit he knew she was in hospital for surgery which resulted in complications; and (2) JS decided to dismiss C because C had declined to accept an extension of his probationary period and because JS was not satisfied on what he had seen of C’s performance that he was suitable for the senior post of Contract and Stakeholder Manager. The complaint of direct disability discrimination is, therefore, dismissed.
Relevant Law
[1]The claim for direct disability discrimination (by association) will be allowed to proceed, by way of amendment.[2]The claims for unlawful deduction from wages is dismissed upon withdrawal. Approved by: