Disability Discrimination Claim Against an Online Retailer Dismissed by Employment Tribunal

OUTCOME: Dismissed

Case Number: 1805742/2023 1805743/2023 1805745/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted]

(2) Mr [NAME]

(3) Ms [NAME]

AT A HEARING

Heard at: Leeds and by CVP (online) – a hybrid hearing

On: 12th, 13th & 14th January 2026

Before: Employment Judge Lancaster Members: PC Langman

N Arshad-Mathers

Representation Claimant: [redacted] Respondents: [redacted]

JUDGMENT having been sent to the parties on 16 January 2026 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the Tribunal find provide the following:

REASONS

1. In addition to the initial request for written reasons on 18th January 2026 the claimant has followed that up with a repeated request dated 5th February 2026. In that second email he also refers to his having allegedly already made a request for reconsideration. This will not, however, be treated at this stage as any reconsideration request under rules 69 and 70 of the Employment Tribunal Rules of Procedure 2024. That is because to do so may disadvantage the claimant under rule 70 (2) should he subsequently wish to submit a substantive request once these written reasons have been provided.

Case Number: 1805742/2023 1805743/2023 1805745/2023

2 Issues 2. There is a helpful list of issues prepared by Ms [NAME]. This has been a difficult case to identify what is in issue. The claim forms of which there are three currently outstanding -all other claims having been dismissed- are not detailed.

3. There was a discussion at the preliminary hearing on 20th February 2025 in front of Employment Judge Morgan KC and he then required the claimant to provide further information. But that was only ordered to be sent to the respondent, so the Tribunal did not see it until the start of this hearing: that is, however, effectively treated as additional information about his claim. And from those three sources of information Ms [NAME] has helpfully prepared a summary, which is now agreed by the Claimant.

4. We say at the outset that the claimant has impressed us as frank and we have no doubt that he genuinely considers he has been badly treated in the course of his former employment, but we are only looking at the legal and factual issues we have to decide. Section 6 Equality Act 2010 5. The first of those is whether or not the claimant in fact meets the definition of disability within the Equality Act 2010.

6. In relation to the disability the only impairment relied upon is the fact that the claimant had suffered testicular pain. The medical evidence shows that that started on around 28 April 2022 and he went to his doctor five days later and reported that. All subsequent GP records relate back to a period of experiencing symptoms that ties in with that start date of around April 2022.

7. That was a condition that obviously fluctuated and the discomfort got worse. It is not correct however to say that pathologically it is what qualifies as a progressive condition, that is a genetic issue that although giving rise to no substantive impairment at the time is known that it will do so in the future.

8. As of April 2022, clearly at that stage when first reporting it, it could not be said that this problem, however uncomfortable, was having a substantial adverse effect on the claimant’s ability to carry out normal day to day activities. But we consider that as from around July 2022 that would have been the case. We take that day because that is the first time he went back to his doctor and sought a fit note to remove him from heavier duties at work. That was repeated in August and in September he reported again to his doctor that although symptoms came and went they were now getting worse. And certainly by the end of employment on 28th December 2022 the claimant has given an account in his further information that clearly suggests how this did then substantially affect him in terms of mobility, his ability to sleep and various other aspects.

9. As from July 2022 we accept that the claimant’s impairment was having a substantial adverse effect upon his normal day to day activities, but the issue has always been therefore whether or not this was a long-term condition. At the point of dismissal the claimant had been experiencing these issues for some seven months and the substantial adverse effect was only some four or five months.

10. There is simply no evidence from which we could conclude that at any stage it was then likely that this condition would last for 12 months from July of 2022. There is no medical evidence. We do not know the current position. All the indications are

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3 that this would be expected to be a problem that would be resolved, possibly requiring treatment as and when the issues were fully identified.

11. But even if the claimant was disabled, which we find he was not, the claims would not succeed. Sections 20 and 21 Equality Act 2010 12. There is a claim of a failure to make reasonable adjustments. The provision, criterion or practice relied upon as identified in Judge Morgan’s Order was the application of the respondent’s punctuality attendance and disability policy. It is clear that the respondent did apply such a policy and ultimately dismissed the claimant for persistent lateness.

13. However, even if the respondent knew that the claimant was suffering with these particular health issues (and they did know that from shortly after he first went to his doctor where he described that he was on medication), at that point he could not have met the definition of disability. That is because there was not at a substantial adverse effect until around July. It is only after that date that the knowledge of his condition may be material.

14. However, on a reasonable adjustments claim it is also an issue as to whether the respondent could reasonably have known that the claimant was placed at a substantial disadvantage by the way they were applying their policies. They can only rely on what they are told. The claimant, at a grievance meeting which was interposed in the final disciplinary process, told Mr [NAME] that he considered a five minute leeway would be sufficient to account for his late attendance to take account of his condition. So that was what was applied when the matter then returned to Ms [APPELLANT] under the disciplinary process. If the claimant was saying only “my physical condition means that I should be given this amount of extra time”, the respondent is not under a duty to make further adjustments where they can identify, as they did, that there were still a substantive number of occasions when he was well outside that requested five minutes grace period in being late for work.

15. In any event the application of the respondent’s punctuality and attendance policies did not in fact disadvantage the claimant as a purportedly disabled person. When he started work in 2018 there was very soon an issue with his lateness. He was given an informal counselling in 2019, a first written warning in 2020, a further written warning in April of 2022, a first final written warning at the end of May of 2022 and then -even though there was repetition of late arrivals - he was issued a second final written warning in September 2022. Only then was he subjected to the dismissal in December, but as we have already commented the process had also been paused to allow consideration of the claimant’s most recent grievance.

16. Within that process at the time of the first final written warning at the end of May, which was when the claimant first alerted the respondent to the fact he thought some of his lateness may be attributable to drowsiness because of the medication he was then on, adjustments were therefore made to his start times. That was so that he would not start on the 8.00 o’clock shift but at 9.00 o’clock or later. That appears then to have been the case consistently, apart from one recorded instance in August when he did start or was supposed to start at 8.00.

17. Also, within that same period from July, when the GP had identified that he should not be engaged in heavy lifting, adjustments were also made. And as we have noted, on the first occasion when the claimant was in breach of the requirement to

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4 improve his attendance although he was already on a final written warning, he was not dismissed but the final written warning was extended.

18. Throughout the whole of the application of these processes he was in fact accommodated. So even if he had met the definition of disability at any material time, he would not have succeeded in that claim of failure to make reasonable adjustments where it suggested the adjustment would have been “to investigate his medical condition”. Investigation of a condition is not, though, of itself the making of adjustment that would remove any disadvantage. But as we have said, in any event there were steps taken to try and identify the issues he was facing and it would not have been reasonable to apply a lesser disciplinary sanction if that simply meant discounting every single time the claimant was late arriving for work whatever the reason.

Section 13 Equality Act 2010 19. The other potential disability discrimination claim is one of direct discrimination in relation to failing to engage with the claimant’s grievances and the matters complained of within those. Within this chronology, only one of those grievance processes, the last, could possibly amount to disability discrimination as well as potentially race discrimination. That is the grievance we have alluded to that was interposed in the course of the final disciplinary process. But it is clear within that that Mr [NAME], who conducted that process, did not fail to engage with the claimant’s grievances. He analysed them methodically and dealt with all the issues and gave him the opportunity to matters. And in terms of disability he clearly was concerned to explore the underlying concerns. That is why, when he identified the five minute leeway the claimant was contending for, he also raised the possibility of a referral to [NAME] where the claimant had previously not taken up that opportunity. Mr [APPELLANT] did not subject the claimant to the alleged detriment, and it was not less favourable treatment than would – had the claimant in fact been disabled - have been afforded to a non-disabled person in the same circumstances.

20. The claimant also alleges race discrimination in relation to all of those grievances. There were three grievances raised, the claimant as we have said was genuinely concerned that he had not been sufficiently progressed in work. He had initially taken work on a part time basis on a limited number of guaranteed hours to accommodate his being a student. However over time he obviously wished to increase those hours if appropriate and also to progress from simply working as a sales assistant and to undertake further training, and he feels he was held back. But the terms of his grievances, the first two were also -and we have seen the records - methodical and thorough and did seek to address the claimant’s issues. In particular there was a systematic analysis of the claimant’s working patterns ove the periods in question and the hours afforded to him. And he frankly accepted in the course of cross-examination that his real concern was that he disagreed with the eventual outcome. We understand that, but that is not to say that he was therefore treated less favourably because either of his race, British Caribbean, or disability. In relation to the first two grievances we repeat they could not have anything to do with disability because it long pre-dated the onset of any testicular pain that he experienced from 2022.

Case Number: 1805742/2023 1805743/2023 1805745/2023

5 Section 136 Equality Act 2010 21. It is for the claimant to show facts from which we could in the absence of any other explanation conclude that the reason why the respondent, through their various managers, addressed the grievances in this way and came to a conclusion that was not the one that he wanted was because of his race. There is quite simply no evidence whatsoever put before us from which we could draw that conclusion. The claimant appears to rely on an argument that because he says there is an underrepresentation of black people within the workplace it must indicate a discriminatory approach. From this he concludes that the alleged failure to engage with his grievances must also be because of his race.

22. That is not sufficient to show that there was any disparity of treatment, certainly not with any actual comparator, and not even with any hypothetical one. We do note that the respondent has produced evidence before us that there was a significant representation of those who self-identified as black and certainly one of those is shown as having been promoted and, in the claimant’s own evidence, one other was working at [NAME] level.

23. The other direct race discrimination allegations are on the face of it (and this is part of the problem we have identified as to how the claims came to be formulated) only apparently brought against the named individual respondent, that is Ms [RESPONDENT] and not the company. That is in relation to a refusal of the requests for training in November and December of 2021. But on the evidence we are satisfied that the reason why those requests were refused, was that this was coming up to the busy Christmas period and also Black Friday. The claimant had given to him an explanation, which is entirely plausible, that it was not possible to train him on the tills at a time when he was needed on the shop floor. Also, subsequently it was clearly pointed out to him that because of the persistent lateness problems that issue would have to be addressed before he could be considered for any further training.

24. There is no evidence whatsoever that Ms [APPELLANT] was influenced in making those decisions by the claimant’s race. In any event we accept her explanation of a non- discriminatory reason. Those complaints are also substantially out of time and there is no good reason as to why it is said we should extend time in these circumstances.: applying section 123 of the Equality Act 2010 25. A further allegation is of rejected job applications without interview in April and June 2019, November and December 2021 and in January 2022.. This too is brought against Ms [NAME] but there is no indication she was in any way involved in those decisions. All we have are a number of instances where the claimant applied for various posts and there are proforma rejections. There is no indication of any circumstances surrounding those applications that could give rise to an inference of discrimination. Once again the last of those is said to be January 2022, so again on the face of it substantially out of time.

26. On all of these allegations of direct race discrimination they only arose in the course of these proceedings. It is noted that the claimant had brought an earlier set of proceedings which were disposed of at the end of 2021 where he did reference the very first of the grievances which he now says is race discrimination. But at that time he did not identify that complaint before the Tribunal. There was no final adjudication on the facts because effectively the claimant simply withdrew an allegation of disability discrimination in relation to those events. So we do not

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6 consider that it is properly within the [NAME] v [NAME] principle, such that the claimant is debarred from bringing a complaint that he could and should have had determined within the earlier proceedings. But it is nonetheless highly significant that at that point the claimant was not alleging any form of less favourable treatment because of his race, and indeed he did not make any such allegations in the course of any of the grievances which he now relies upon.

27. Only if the final hearing of the grievance by Mr [NAME] at the end of 2022 were an act of race discrimination could it possibly bring any earlier matters in time. It is not and it does not. Section 98 Employment Rights Act 1996 28. n terms of the unfair dismissal claim the respondent has very clearly demonstrated that the reason for dismissal was related to conduct which is potentially fair. That is persistent lateness, and this was an issue that pre-dated the onset of any possible disability. The respondent adjusted the start times after the issue of the first final written warning at the end of May to allow for the possible effects of medication on an earlier start. During the process leading to the second final written warning they discounted those occasions when the claimant although late at the start of his shift had made up the time later. However, they still found a significant number of instances where he was late. And finally, following the grievance, they also allowed the five minute leeway the claimant said should have accommodated any adverse effects of his health at that stage. But then on a full review of all the absences throughout January to December 2022, Ms [NAME] identified in total seventy relevant instances of lateness having isolated those that could not possibly be discounted in favour of the claimant under the “5 minute allowance”. Given that he was already on the second final written warning and there had been repeated occasions where he could not attend, it is quite clearly within the band of reasonable responses to treat that as sufficient reason to dismiss. The respondent had ample evidence of the occasions when he had been late and they had carried out a full and thorough investigation, including allowing the claimant to make representations at a grievance hearing in relation to his concerns about the way he had been treated, whether that had impacted upon his lateness and the impact of his health at that stage.

29. For those reasons all these claims that are currently still identified as being live before the Tribunal are necessarily dismissed.

Approved by Employment Judge Lancaster

Date 18th February 2026

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Cases: 1805742/2023, 1805743/2023 & 1805745/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted]

(2) Mr [NAME]

(3) Ms [NAME] [NAME]

AT A HEARING

Heard at: Leeds and by CVP (online) – a hybrid hearing

On: 12th, 13th & 14th January 2026

Before: Employment Judge Lancaster Members: PC Langman

N Arshad-Mathers

Representation Claimant: [redacted] Respondents: [redacted]

JUDGMENT

1. The claim of having suffered a detriment because of having made a protected qualifying disclosure is dismissed upon withdrawal.

2. All other complaints are dismissed. .

EMPLOYMENT JU DGE LANCASTER

DATE 14th January 2026

Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions

Cases: 1805742/2023, 1805743/2023 & 1805745/2023

2 Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

Case No: 1805742/2023 1805743/2023 1805745/2023 11.6C Judgment – Reconsideration refused – claimant - rule 72

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted]

(2) Mr [APPELLANT]

(3) Ms [APPELLANT] [NAME]

The claimant’s application dated 21st April 2026 for reconsideration of the judgment where written reasons were sent to the parties on 14th April 2026 is refused. REASONS

There is no reasonable prospect of the original decision being varied or revoked, because

1. The actual claims were agreed to be only those as set out in the list of issues, taken from the 3 outstanding ET1s and the additional information.

2. These claims, which were solely of failure to make reasonable adjustments, of direct race or disability discrimination, and of unfair dismissal were fully considered on the available disclosed evidence.

3. The decision was unanimous.

4. The claimant now appears to be seeking to rely on new evidence, particularly medical evidence (in his request for written reason of 5th February 2026 he specifically says this is “new”), but there is no reason to admit this where t would have been available at the time and there had already been a 3 year preparation period before trial.

5. As set out in the judgment, even if the claimant had been disabled at the material time his claim would not have succeeded.

6. There is therefore no real prospect of the Tribunal, if reconvened, coming to any different decision.

_____________________________

Employment Judge Lancaster

Date 21st April 2026

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted]

(2) Mr [APPELLANT]

(3) Ms [APPELLANT] [NAME]

The claimant’s application dated 23rd April 2026 for reconsideration of the judgment where written reasons were sent to the parties on 14th April 2026 is refused.

REASONS

There is no reasonable prospect of the original decision being varied or revoked, because this is substantially the same application that was made on 21st April 2026 and was refused for the following reasons. The enclosed copy medical documents from shortly after the onset of testicular pain in April 20202 do not add anything to the evidence that was before the final hearing’

3. The decision was unanimous.

_____________________________

Employment Judge Lancaster

Date 12th May 2026

Under rule 65 of the Employment Tribunal Rules of Procedure 2024 (as amended) this second refusal of reconsideration does not have to be entered on the register.