Unfair Dismissal Claim Succeeds at Employment Tribunal

OUTCOME: Allowed

Case Number: 1804326/2023 & 1804327/2023

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

[NAME] (2)

Respondent: [redacted]

[NAME] (2)

Heard at:

Leeds Employment Tribunal On:

23rd-30th April 2025

19th May 2025 (panel in chambers)

23rd July 2025

Before:

Employment Judge [NAME] (non-legal member)

[NAME] (non-legal member)

Representation Claimant: [redacted] Respondent: [redacted]

JUDGMENT

1. The First Claimant’s claim for unfair dismissal is well-founded and succeeds

2. The First Claimant’s claim for failure to provide written particulars of employment is well-founded and succeeds.

3. The First Claimant’s claims for disability discrimination are not well- founded and are dismissed.

4. The First Claimant’s claims for unlawful deduction from wages are not well-founded and are dismissed.

5. The [NAME] Claimant’s claims for unfair dismissal are not well-founded and are dismissed.

6. The [NAME] Claimant’s claim for discrimination on the grounds of marital status and not well-founded and are dismissed.

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7. The [NAME] Claimant’s claim for failure to provide written particulars of employment is not well-founded and is dismissed.

8. There will be a separate remedy hearing to determine the damages payable to the First Claimant.

REASONS

Background to request for written reasons

1. The original judgment was delivered orally at the hearing on the 23rd July 2025. A short form judgment was sent out on that day. Neither party requested full written reasons within the time frame set out in the rule 60 of the Employment Tribunal Rules of Procedure.

2. A remedy hearing was due to take place on the 25th and 26th February 2026. Prior to that hearing the parties requested a preliminary hearing to provide some clarity as to what they could make representations on, given that there were no full written reasons. Due to administrative issues, a preliminary hearing could not take place before the 25th February and so the remedy hearing was converted to a preliminary hearing.

3. At the preliminary hearing the parties raised that the original judgment had not dealt with the issues of contributory conduct or a [NAME] reduction as it had been intended that that would be dealt with at the remedy hearing. However the parties acknowledged that findings were made in the oral judgment that would go to both those issues.

4. Regrettably, neither party had taken good notes of the oral judgment. The Claimants were now represented by [NAME] and the [NAME] had taken only brief notes. As such the parties did not have, in their opinion, sufficient detail of the findings made in the oral judgment.

5. Both parties seemed to think the other would request full written reasons but neither had done so.

6. At the preliminary hearing on the 25th February 2026, it was agreed that I would extend the time for the parties to request written reasons, as that was in my power to do so, and provide written reasons based on my notes of the oral judgment given in July 2025.

Overview of the Claimants’ claims

1. The hearing in this case was to determine the claims of 2 Claimants, Mr [RESPONDENT] and his wife Mrs [RESPONDENT].

2. The first Respondent in this case was a company, [RESPONDENT[COMPANY].

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3. The [NAME] Respondent was [NAME] [RESPONDENT[NAME], one of the Directors of the company. [NAME[NAME] is also [NAME] cousin.

4. The company is a family business which has passed through multiple generations. [NAME] and [NAME[NAME] represent separate sides of the family.

5. [RESPONDENT] worked as an employee of the Respondent and then later as a director who was also an employee. [NAME[NAME] was also a director at the same level as [NAME].

6. [NAME] claims were primarily about his dismissal from the company.

7. In the first instance [NAME] denied that he had actually been dismissed. He challenged the authority of [NAME[NAME] to dismiss him and argued he was still employed and still entitled to remuneration and claimed unpaid wages.

8. In the alternative, he argued that his dismissal was unfair. The Respondents argued that there was a dismissal and that it was a fair dismissal.

9. [NAME] also argued that he had suffered disability discrimination. He relied on 3 conditions- Anxiety and Depression, ADHD and Trigeminal Neuralgia.

10. [NAME] argued that he had suffered discrimination by the Respondents deciding to dismiss him whilst he was absent from work due to his disabilities.

11. The Respondents argued that the reason for [NAME] absence was his drug use and that he was attending rehabilitation, and thus the reason for dismissal was not connected to the disabilities.

12. [NAME] was also claiming unfair dismissal. The Respondents argued that [NAME] had not been an employee and therefore could not have been dismissed.

13. [NAME] also argued that her dismissal was discriminatory on the grounds of marital status. She argued that she had only been dismissed because she was married to [NAME] and that if she had been his girlfriend or partner, she would not have been treated the same way. The Respondents denied this.

The claims and issues

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14. The claims and issues were set out by [NAME] in a preliminary hearing on 13th December 2023. His order was at page 86 of the bundle.

15. Some points to note from [NAME] order comments are as follows;

16. In respect of the disability issue

“The first Claimant is on notice that he may be expected to evidence any linkage between disability impairments and those dependencies”

“The burden is on the Claimant to prove disability status and “arising from”

17. And in respect of the dismissal “There may be an issue as to the extent an employment tribunal can go behind and potentially nullify company appointments”

The hearing

18. The hearing took place over 6 days between the 23rd and 30th April 2025 at Leeds Employment Tribunal. The case was heard by a full tribunal panel.

19. The Tribunal heard witness evidence from [NAME[NAME] and [NAME] for the Respondents and [NAME] and [NAME] for the Claimants.

20. [NAME] is [RESPONDENT] father and a former director of the Respondent. [RESPONDENT] was a counsellor from [NAME], the facility [NAME] attended for [NAME] treatment. All witnesses attended the hearing, except [NAME] who gave evidence via CVP link.

21. The Tribunal was provided with a 927-page bundle as well as a supplemental bundle of a further 151 pages. There was also a “disability bundle”. That contained academic papers providing information about the conditions [NAME] relied upon. The Respondents raised whether it had been disadvantaged by the fact that there had been no orders regarding expert evidence in this case and yet it appeared that purported expert evidence supporting [NAME] disabilities was being allowed to be submitted without being challenged or tested.

22. The ET decided that those documents in the disability bundle would not be given the weight of expert evidence. It was noted the test for disability was focused not on the medical diagnosis but the actual impact of any impairment on the Claimant’s day-to-day activities. The papers would therefore appear to be of limited usefulness then. The Claimants’ counsel accepted they carried little weight and suggested they were dealt with in submissions if necessary.

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23. There were several other documents provided as the hearing progressed, but it is not necessary to go into detail about their inclusion.

24. Despite the parties being given a timetable to work to with regards to witness evidence and submissions, matters ran over and so it was not possible to deliberate and deliver a decision within those 6 days.

25. The tribunal panel therefore met on the 19th May 2025 to continue deliberations. The parties asked for judgment to be delivered orally on a separate date and then a remedy hearing after that on a further date, if necessary.

The law

Employment status

26. There is no clear statutory guidance as to determining whether someone is an employee or not. Instead, there are a variety of factors drawn from case law. The tribunal must look at the facts before it and weigh up the facts that go towards the individual being an employee and those that go against it.

27. The list of relevant factors is not exhaustive but certain elements are considered to be the bare minimum requirements for there to be an employer-employee relationship.

28. One of those factors is control. The employer must have some degree of control of the employee’s work. That may not mean scrutinising and overseeing everything they do, but at the very least they must be giving the employee some sort of instruction and the employee must be following those.

29. Similarly there must be a mutuality of obligations. The employee must be obliged to turn up to work (and actually do it) and the employer is obliged to provide work to the employee.

30. Pay is also a relevant factor. The employee must receive remuneration for the work they do.

31. If the employer is responsible for tax and paying national insurance contributions for the individual, that can also be indicative of the person being an employee rather than self-employed.

Discrimination on the basis of marital status

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32. Discrimination on the basis of being married is prohibited in the Equality Act 2010.

33. As with any direct discrimination claim, the Claimant must compare themselves to a comparator. That would be someone who is in the same circumstances and has no material differences, save that they are not married.

34. [NAME] v Neath Borough Council ET Case No.7257/90 looked at whether the identity of the person they are married to can be a relevant factor. That is, can the Claimant say that they were discriminated against because they were married to a particular person or does the tribunal instead need to consider that the identity is not relevant and instead the fact they are married rather than in any other type of relationship is the important factor.

35. In the above case, the tribunal found that the question that had to be asked was: ‘Have the respondents treated the applicant less favourably than they would have treated an unmarried person who had a close relationship with another person, of whatever sex, in the same section of the employer’s establishment?’.

36. It is our reasoning that the marital status rather than who that relationship is with must be the reason for the treatment.

Unfair dismissal

37. In order to claim unfair dismissal under section 94 of the Employment Rights Act 1996, the Claimant must have been dismissed by the employer (or constructively dismissed if they resigned).

38. The burden of proof falls on the employee and the test is one of a “balance of probabilities”.

39. If there is a dispute as to whether or not there has been a dismissal, the conduct of the parties and surrounding circumstances should be taken into account to determine the reality of the situation.

40. In Kirklees Metropolitan Council v [NAME] 2009 ICR 1244, CA, removing the employee from the payroll was seen as a clear statement that the employer intended to terminate the employee’s employment.

41. The employee’s conduct is also relevant as seen in the case of [NAME] v [COMPANY] 1972 ITR 188, NIRC. In that case, Sir [NAME] said:

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‘Where an employee so conducts himself as to lead a reasonable employer to believe that the employee has terminated the contract of employment, the contract is then terminated.’

42. If a dismissal is established, the tribunal needs to then consider the reason for the dismissal and whether that is a potentially fair one. The burden of proof here is on the employer.

43. Conduct, capability and some other substantial reason are all potentially fair reasons under the Employment Rights Act. Each has a different test for fairness however.

44. In a conduct dismissal, the prevalent test is set out in [COMPANY] v [NAME] 1980 ICR 303, EAT. The employer must show that they had a genuine belief of the misconduct, that they had reasonable grounds to sustain that belief and that they carried out sufficient investigation.

45. In relation to a capability dismissal, it would be reasonable for an employer to set out the standards asked of the employee to them and then give them time to improve. It would also be reasonable to provide them with any support and training they ask for.

46. As Lord [NAME] MR put it in [COMPANY] v [NAME] 1978 ICR 445, CA: ‘Whenever a [NAME] is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the [NAME] is incapable or incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent.’

47. In a dismissal for SOSR, the employer must also be able to show that they made reasonable enquiries so that the dismissal can be justified.

48. In all three cases then, it is clear that the employer must make some enquiries of the situation in order for the dismissal to be fair. It is unlikely to be reasonable for the employer to make an assertion of the employee’s conduct or performance and then dismiss without giving the employee an opportunity to respond. Even if cases where the evidence is unequivocal or overwhelming, the employee would at least be given an opportunity to plead some sort of defence.

Disability discrimination

49. The Equality Act 2010 defines a disability as a physical or mental impairment which has a long-term substantial adverse effect on a person’s ability to carry out normal day-to-day activities.

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50. “Substantial” is defined in S.212(1) of the Equality Act 2010 as meaning ‘more than minor or trivial’. This is quite a low threshold to meet. However, there must be some effect of the condition on normal day to day activities.

51. When considering the adverse effect, a tribunal should ignore any medical treatment or therapy. The tribunal should look at what the adverse effect would be if the individual was not having such treatment.

52. In [NAME] v [NAME] the EAT said that there was no need to specify what constitutes a day-to-day activity because while it is difficult to define, it is easily recognised. The EAT stressed that a tribunal should focus on normal daily activities, not on particular circumstances.

53. Long term means that the effect either has lasted for at least 12 months or likely to last for 12 months.

54. This definition of the word ‘likely’ reflects the House of Lords’ decision in [NAME] v [COMPANY] (Equality and Human Rights Commission intervening) 2009 ICR 1056, HL. In that case, the industrial tribunal found that the Claimant suffered from a physical impairment and that, but for coping strategies which she used in her daily life, it was ‘more likely than not’ that the substantial adverse effect of the impairment would have continued.

Discrimination arising from disability

55. Section 15 of the Equality Act 2010 states that discrimination can occur if the individual is subjected to unfavourable treatment because of something that arises in consequence of their disability.

56. The use of the word “unfavourable” rather than “less favourable” makes it clear that there is no need for the Claimant to compare themselves to a comparator.

57. The Claimant must establish that the “something arising” is in fact a result or consequence of their disability. They must also establish that the “something arising” is the cause of the unfavourable treatment.

Failure to make reasonable adjustments

58. Section 20 of the Equality Act 2010 establishes the duty on employers to make reasonable adjustments for disabled employees.

59. The duty arises if there is a provision, criterion or practice that is applied by the employer to everyone, but which places the individual at a substantial disadvantage because of their disability. In such circumstances

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the employer is then placed under an obligation to make reasonable adjustments to avoid the disadvantage.

60. Paragraph 20(1)(b) of schedule 8 of the Equality Act 2010 states that if the employer does not have knowledge of the disability, it will not be liable to make reasonable adjustments.

61. In [COMPANY] v [NAME] 2009 IRLR 429, EAT, the EAT also extended that to knowledge of the disadvantage. That can only be right- if an employer does not know or be expected to know that the employee is struggling with something, how can they be under a duty to put things right.

62. The employer can have actual knowledge or constructive knowledge (“be expected to know”- para 20 of schedule 8). The question whether the employer had, or ought to have had, knowledge of the disability is a question of fact for the tribunal and will only be interfered with when unsupported by the evidence (DWP v [NAME])

63. The Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’) states that the term ‘Provision, Criterion or Practice’ should be “construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions”.

64. Where a disabled person claims that a ‘practice’ (as opposed to a provision or criterion) puts him or her at a substantial disadvantage, the EAT has held that the alleged practice must have an element of repetition about it and be applicable to both the disabled person and the non- disabled comparators.

65. In [COMPANY] v Harvey EAT 0032/12, the EAT decided that the tribunal had erred by identifying the one-off application of a flawed disciplinary process to the Claimant as something that constituted a ‘practice’ falling within the definition of a PCP. There was no evidence to show that the employer in that case routinely conducted its disciplinary procedure in this way.

66. In London Borough of [NAME] v [NAME] 0248/18, the EAT decided that a flawed following of the correct procedure of an employer was not a practice. The decision might be different however if the Claimant can show that the employer routinely fails to follow its specified procedures.

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67. Similarly, the one-off act of dismissal itself has been held not to be capable of amounting to a ‘practice’ as seen in Fox v [COMPANY] 0315/14 where Her Honour Judge Eady observed that ‘the claimant’s case is counter-intuitive: an individual dismissal would not seem to amount to a policy, criterion or practice, rather than the result of the application of a particular PCP’.

Findings

68. These written reasons were based on the notes of the oral judgment that was given last year. As in that oral judgment we have not gone into minute detail about each factual point and what we have decided about them.

69. There were a number of factual points in dispute, particularly around the work that [NAME] was carrying out as part of his employment, whether he was fulfilling his duties and whether he was guilty of any of the allegations made against him in the dismissal letter sent in February 2023.

70. The tribunal decided that those matters only became relevant if we were to find there was actually a dismissal first. Only then would we need to decide whether the dismissal was a fair one. If we found it was a procedurally unfair dismissal, those issues about the Claimant’s performance became relevant at the remedy stage when considering contributary conduct or a [NAME] deduction from any damages.

71. The tribunal therefore looked at the circumstances of [NAME] dismissal first. If there was a finding that there was no dismissal, then the conduct and capability issues did not become relevant.

72. If we found there was a dismissal and that dismissal was unfair, we would leave the contributory conduct and [NAME] arguments to be made by the parties at the remedy hearing.

[NAME]

73. In relation to [NAME], much of the evidence focused on the purported “work” that [NAME] argued that she was doing.

74. In relation to the trade shows that [NAME] attended, we felt it was not necessary to look at whether this constituted work by way of analysing what [NAME] was doing at those trade shows, nor how often they occurred. It was not for this tribunal to decide whether someone’s purported work is difficult enough to constitute work. That is not one of the tests for employment status.

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75. Instead, we focused on the more established factors such as mutuality of obligation, control and pay.

76. It is accepted that from at least 2006 [RESPONDENT] was involved with the First Respondent, in that she attended trade shows with [RESPONDENT[NAME] and [NAME].

77. It is not accepted that [RESPONDENT] was asked to take on projects for the Respondent from 2008 or at any other time. We accept there were occasions where [NAME[NAME] asked for advice or input from [NAME] on design issues, but we did not consider this to be “work”. This was done, in our finding, in the capacity of a relative or friend.

78. [NAME] says that from around 2010 she established a commitment to working at the various trade shows in Paris and UK. We do not accept that there was any such “commitment” or obligation on [NAME] to attend these.

79. There examples in the bundle of [NAME[NAME] asking [NAME] if she was able to attend. On at least one occasion, [NAME] says that she is unable to because of childcare commitments.

80. [NAME] was asked if she felt she was able to decline a request from the Respondent to attend the trade shows. [RESPONDENT] responded by saying that she felt obligated, however it was our finding from the evidence that Mrs [NAME] gave, that this obligation was due to her personal relationship with [NAME[NAME] rather than because [NAME] felt this was an order or command from a superior or someone who was her employer.

81. She was asked in re-examination what responses she could have given to a request from [NAME[NAME] (using one from 28th July 2024 as an example-page 211) and she accepted that “no” was as possible response. She was asked when she could have said no, and [NAME] said if she had childcare issues, however she specified that these had normally been sorted so she was able to attend. We find that this would not have been the response we would expect from someone who considers themselves to be in an employment relationship. In that relationship the employee would normally understand that refusing an employer’s order or request is the exception rather than a choice.

82. There was an email from [NAME[NAME] on the 12th October 2010 where [NAME[NAME] lists the dates of the trade shows and asks people to avoid booking leave. [NAME] is only copied into that email which we found to mean that she wasn’t being required to attend or avoid taking any leave but being copied in for her own information in case she wished to attend. It was clear she was being treated differently and separately to the

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employees of the company, who were being commanded or ordered to attend.

83. Although that email is from 2010, we saw no evidence that anything changed after that date. We were presented with no emails where [NAME] is ordered to attend or required to avoid taking leave. Our finding was then that even after 2010, attendance at Trade Shows was voluntary to Mrs [NAME]. There was no mutuality of obligation in relation to those.

84. We also do not accept that [RESPONDENT] was doing any other work for the First Respondent. She never attended the First Respondent premises for work or had any day-to-day responsibilities or duties.

85. On that basis we find that [RESPONDENT] was not an employee of the First Respondent. There was no mutuality of obligation. The First Respondent was not obliged to provide her with work and did not do so. The only “work” she was doing was attending trade shows which she accepted she did because she enjoyed going to them. The shows involved traveling to a different country, staying at a hotel and eating at nice restaurants, as well as being at the show itself. We found that she did these for her own enjoyment rather than because she saw this as one of her duties.

86. There was no evidence of control. [NAME] was never tasked to carry out any duties whether at the trade shows or otherwise. There was no evidence provided of instructions or orders being given that she was required to carry out in a specified way.

87. She was also not obligated to take on any work offered to by the First Respondent. We find that she was free to refuse to attend the shows and there was no evidence of any outcome if she did not want to attend.

88. We accept that [RESPONDENT] was receiving pay from the Respondent. However, this was clearly a tax avoidance arrangement for her husband [NAME].

89. The evidence we were presented with showed that [NAME] had a discussion (page 150) with his accountant 4th Feb 2011 where it is advised that [NAME] should be “employed” so that her personal tax allowance can be used and the tax on [NAME] salary is reduced. [NAME] then voluntarily reduces his salary.

90. [NAME] salary was entirely made up by the amount that [NAME] reduction in salary. It was not a payment made to her for work that she was doing, but a way of spreading his salary around so as he paid less tax.

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91. There were no other elements that we found established an employment relationship.

92. On that basis, we do not accept that [NAME] was an employee and therefore her claim for unfair dismissal would fail.

93. In relation to her termination, [NAME] argues that the reason for it was because she was married. [NAME] argues that this was Marriage Discrimination.

94. As we have found she was not an employee we would also find that she was not “dismissed”.

95. However, we accept that stopping payments to [NAME] could be less favourable treatment and so it is necessary to see if this could be direct discrimination because of the protected characteristic of marital status.

96. We find that what happened was the First Respondent stopped paying her any salary. The reason for this was based on how those payments came about- that is because [NAME] wanted to spread his salary around to avoid tax. As he was not getting any salary, there was no reason to continue paying anything of his salary to [NAME].

97. We do not accept that the reason for this was because she was married to [NAME] and if she had been his partner in any other form she would have continued to receive pay from the Respondent. Whatever the nature of her relationship with [RESPONDENT], the Respondent, we find, would have stopped paying her when they stopped paying him.

98. The comparator for this direct discrimination claim would be someone in [NAME] circumstances but who was not married. We find that such a person would not have been treated more favourably than she was.

99. Further, the reason for any detrimental treatment is not marital status but the tax arrangement that was in place. Any claim for marriage discrimination therefore fails.

[NAME]

100. [RESPONDENT] was appointed a statutory director by the First Respondent from 2007. He was not given a contract or statement of particulars when he started.

101. [NAME[NAME] was appointed a statutory director by the First Respondent prior to [RESPONDENT] (in around 2005). We accept that they were effectively on the same level as far as the First Respondent structure is concerned

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102. As stated, we have not gone into the minutiae of what Mr [RESPONDENT] was doing during his time with the Respondent and instead focused on the purported dismissal.

Timeline of dismissal

103. In 2022 [RESPONDENT] involvement in the First Respondent business began to deteriorate. There is conflicting evidence of how much work [NAME] was doing prior to then, but certainly it is accepted by Respondents and Claimant that things declined significantly in 2022.

104. Things came to a head in October 2022 when [NAME] left his family home and relocated to a different part of the country. The Respondents believed he had gone into [NAME], but he had not. [NAME] said that he needed to be away from his normal surroundings and had intended to go into [NAME] but had not at that stage.

105. Whatever the reason, it is clear from October 2022, [RESPONDENT] was not doing any work for the First Respondent.

106. The evidence that we heard from [RESPONDENT] who was involved in the [COMPANY] that Mr [NAME] had attended was that [NAME] had been a drug user for several years. [NAME] tried to argue that it was only 1 or 2 years, but we found no reason that [NAME] would have given false evidence about this and we therefore accepted his evidence that the drug issues had been going on for a number of years, certainly more than 2 or 3.

107. On 29th July 2022 (page 372) [NAME] parents wrote to him about concerns they had about [NAME] activities as director of one of their businesses.

108. In mid-November 2022 [NAME[NAME] met with [NAME] parents and discussed concerns about [NAME]. In that meeting we find that [NAME] parents tell [NAME[NAME] about the concerns they raised in their previous email to him.

109. [NAME[NAME] asked [NAME] father if he would support her if she wanted to removed [NAME] as a director and he says he would. We found that at that stage Mr [NAME] supported the notion of removing [RESPONDENT] as a director of First Respondent.

110. We also find that [RESPONDENT[NAME]’s intention to remove [NAME] as a director was manifest from at least November 2022. No one included [RESPONDENT], who was still involved in the first Respondent business at

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that stage, raised an issue about [NAME[NAME] being able to take that decision on her own in November 2022.

111. On 21st December 2022 (page 888) the First Respondent appoint solicitors to take steps to have [RESPONDENT] removed. The solicitors send a letter to [NAME[NAME] setting out the details of the instructions they had received. At that stage it appears that [NAME] was still supporting that idea. He was also copied into that letter. Again, he raised no issue about the letter, or the proposal to remove [NAME], or the process that was going to be followed, at that time.

112. The solicitors recommend firstly inviting [NAME] to resign and if he refuses, to then remove him, pursuant to the procedure in the Companies Act. The advice letter makes clear the firm is not giving employment law advice about the fairness of the dismissal. All they are advising on is the steps required for the removal of a director under company law.

113. They do not say in that letter that [NAME] cannot be removed by any process at all. This must be right as no director has an absolute position which makes them untouchable.

114. This letter of instruction must have gone out after the Respondent actually appointed the firm to act for them and them writing to [NAME]. We see an email from [NAME] on the 20th Dec 2022 (page 884) in which he is responding to a request from the [NAME] to reply within 7 days. We assume from our reading of the email that this was the letter where [NAME] was being asked by the [NAME] to confirm his voluntary resignation.

115. In response to that letter, [NAME] asks for more time to make a decision about resigning. He asks for 28 days.

116. On the 4th Jan 2023 he then asks to have until the 9th Jan 2023. Our finding is that the First Respondent was going through a process to remove [RESPONDENT] at that stage by asking him to resign.

117. On the 5th Jan (page 882) [NAME] write to say that they have drafted a resolution (which we take to be a resolution to remove [NAME] as a director) and have sent it to [NAME] and [NAME] ([NAME] mother) for approval. This was being sent as they were shareholders of the First Respondent.

118. On the 12th Jan (page 904) however, [RESPONDENT] changes his mind. He says in an email that now that [NAME] is getting medical treatment, he thinks it should be left to [NAME] and [NAME[NAME] to

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sort out the future of First Respondent between themselves, without their (that is [RESPONDENT] and [NAME]) involvement.

119. On the 17th Jan 2023 (page 579) [NAME[NAME] states that she is appointing [NAME] as an additional director. She stated in evidence that the reason for doing so was because the First Respondent needed at least 2 directors and she believed that [NAME] hadn’t been functioning as a director for some time.

120. She refers to the fact [NAME] has been on sick leave since October 2022. Although she believed that he was due to start [NAME] imminently, [NAME[NAME] knew that this would be for at least 28 days and may be longer. It is our finding that at that stage [NAME[NAME] did not know when [NAME] would be fit to return. She believed this would be at least 28 days and also believed it would likely be much longer. We found that she therefore had reasonable ground to decided that it necessary that another director is appointed for the business to run smoothly.

121. An additional document provided to the ET during the course of the hearing which showed that [RESPONDENT] was appointed as a director of the First Respondent on the 17th Jan 2023.

122. There was a question raised as to the legitimacy of this appointment under the company rules and under Company Law.

123. We are unable to find whether this appointment was lawful or not. We found that this would require an analysis of the Respondent’s articles and us interpreting the Companies Act which we decided was beyond the jurisdiction and expertise of this tribunal.

124. For that reason, we also then find that we are unable to decide as to the validity of the Claimant’s dismissal under company law. Again, it would require interpretation of company law which is beyond our jurisdiction and expertise.

125. However, we feel we are able to find whether there was a dismissal based on the facts presented to us in the hearing.

126. In this case, Mr [NAME] was sent a letter of dismissal on the 14th February 2023 by the Respondent (page 624). The words in that are unambiguous and make it clear that he is being dismissed.

127. After that date, [RESPONDENT] stops receiving remuneration from the First Respondent. The First Respondent stops paying any tax and NI for [RESPONDENT].

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128. [NAME] does not present to work after that date. He does not ask the First Respondents for any work to be given to him.

129. The First Respondent does not provide [RESPONDENT] with any work or ask him to fulfil any obligations. He does not send in sick notes or provide an excuse for his absence in any other way.

130. [RESPONDENT[NAME] sends an email to the team at the First Respondent to say that [RESPONDENT] is no longer employed by them. It was clear she was treating him as being dismissed.

131. The First Respondent also arranges for a “bounce back” on [RESPONDENT] emails so that anyone outside of the business would know he no longer works there.

132. On the 20th Feb 2023 (page 915) [RESPONDENT] instructs solicitors to write to the first Respondent to say that he does not accept the dismissal and that he will be returning to work after his recovery. However, we note that he does not do this. There was no evidence presented that [NAME] tried to return to work after the date of the letter.

133. Based on those facts, we find that there was a dismissal of [NAME]. As stated, we do not make any finding as to the relevant authority behind that or the validity of it under Company Law. However, the Employment Rights Act 1996 does not require any such analysis to be done as far as an unfair dismissal claim is concerned. The ET only needs to be satisfied that there has been a dismissal.

134. We then turn to whether that dismissal was fair. It is our finding that it was not, based on any reason given by the First Respondent.

135. The First Respondent gave 3 reasons for the dismissal- Misconduct, Capability and Some Other Substantial Reason (SOSR). The SOSR reason was “loss of trust and confidence”.

136. We find that under any of these reasons the First Respondent would have been required to carry out some sort of investigation and engage with [NAME] before making a decision to dismiss.

137. There are a number of allegations made to [NAME] in the letter of 14th February 2023. Whilst [NAME[NAME] had some information about these from different sources (that is from her own knowledge and from [NAME] parents), it would still be reasonable for an employee to be given the opportunity to respond to any allegations put to them, before a decision to dismiss is made.

Case Number: 1804326/2023 & 1804327/2023

138. Whilst there may be circumstances where that is not necessary (because the evidence is so overwhelming or obvious), we do not think this is the case here. This is not a case where the allegations were irrefutable and could not be challenged by the employee because there was clear evidence that could not be contested.

139. [NAME[NAME] says in the letter that she accepts the dismissal is flawed procedurally and that it has not been possible to take the normal steps. We did not agree with this.

140. Part of [NAME[NAME]’s reasoning was that [NAME] was in [NAME] and therefore could not have engaged with her. However, the letter is sent on the day he is due to leave [NAME]. [NAME[NAME] admitted she waited until that date. She therefore must have known he was due to leave at that point. She made no attempt to contact him to find out if he was able to respond.

141. It may have been the case, as was argued by the Respondent that even after leaving [NAME] [RESPONDENT] was not in a fit state to be able to engage, but [NAME[NAME] makes no attempts to verify this with him. She simply sends the letter to dismiss.

142. In those circumstances we find that a dismissal for misconduct, capability and SOSR is flawed. Without being able to verify the allegations, it cannot be a fair.

143. Mr [NAME] claim for unfair dismissal is therefore successful.

Disability claims

ADHD

144. The Respondents conceded [NAME] had ADHD but they did not concede knowledge of it during the relevant period.

145. [NAME] put forward evidence he said of him displaying signs of ADHD whilst he was employed by the First Respondent. He pointed to his inability to focus and need to move from various tasks.

146. However, we did not consider this was sufficient to give constructive knowledge of this condition to the Respondents. There was no clear evidence, we found, upon which we would expect a reasonable employer to be able to deduce that Mr [NAME] actions were because of ADHD or any other disability. They could (and were) easily be attributed to Mr [NAME] lack of interest in the business and general lack of focus.

Case Number: 1804326/2023 & 1804327/2023

147. We also note that [NAME] himself did not know of this condition until his formal diagnosis which was after his dismissal.

148. His discharge report from the [NAME] (page 647) suggests that he be tested for ADHD but this was not a formal diagnosis that he actually had that condition.

149. Therefore, at the relevant time, he himself did not consider his actions could be because of ADHD or any other condition or disability.

150. There is also a question as to whether [NAME] actions were because of his drug use or because the ADHD. As found above, [NAME] was taking drugs for a number of years and it would difficult to unpick which symptoms were due to the drug use and which were due to ADHD.

151. We therefore do not accept that the Respondents had actual or constructive knowledge of the ADHD during the relevant period.

152. Without any actual or constructive knowledge of the disability, an employer cannot be under an obligation to make reasonable adjustments. The claim for failure to make reasonable adjustments would therefore fail at the first hurdle.

153. The claim for “unfavourable treatment because of something arising in consequence of disability” therefore also fails as the Respondents did not have actual knowledge of the disability, nor of the something arising from it.

Trigeminal Neuralgia

154. We accept that Mr [NAME] had a condition of Trigeminal Neuralgia. However, we did not accept that it met the definition of a disability under the Equality Act 2010.

155. Mr [NAME] says that he was diagnosed with the condition in Dec 2020. He says that the impact of the condition is that he suffers intense pain throughout the day and has difficulty carrying out day to day tasks such as brushing teeth, washing his face and eating.

156. The definition of “substantial” is more than trivial and as such we find that it did have a substantial adverse effect on day-to-day activities.

157. However, we note that [NAME] says that he was diagnosed in December 2020 and the effects lasted until April 2021.

Case Number: 1804326/2023 & 1804327/2023

158. At that point he began to take medication which abated the impact of the condition. Under the guidance for considering disability, we must ignore the effect of any treatment or medication. However, [NAME] said that he stopped taking this medication in September 2021. He did not say whether he was suffering any effects of the condition and needed the medication to counteract those up to that date. However, it was clear that he was not suffering from the effects of the condition after September 2021 as he stopped taking the medication for it.

159. If we take September as the last date he was suffering from the effects of the Trigeminal Neuralgia, then it would not meet the “long term” requirement of the test to be a disability. The condition has not lasted for 12 months (or expected to last for 12 months) as is required by the Equality Act guidance.

160. Any claim for disability discrimination in relation to that condition therefore would be not-well founded then.

Anxiety and Depression

161. [NAME] said that the had anxiety and depression since childhood but this was undiagnosed.

162. He was formally diagnosed with his condition through his ADHD assessment in February 2023.

163. [NAME] referred to a number of ways he believed the anxiety and depression affected his day to day activities before but he did not say when he was unable to do these things. Nor did he say how he has attributed those symptoms to the anxiety and depression.

164. On that basis we could not find that this was disability as per the definition in the Equality Act that [NAME] was suffering from during the relevant period. There was insufficient evidence from Mr [NAME] about the impact of the condition during the relevant time.

165. As such, any claim for disability discrimination in relation to this condition fails.

166. Although all 3 of the conditions did not amount to disabilities under the Equality Act 2010 that [NAME] could pursue claims about, we did go on to consider the merits of the disability claims in any event.

Discrimination arising from disability

Case Number: 1804326/2023 & 1804327/2023

167. [NAME] argued that he has suffered unfavourable treatment because of something arising in consequence of his disability.

168. In this case, he relies up the absence from work from October 2022 as the “something arising from” his disability.

169. Notwithstanding our findings that all his medical conditions would not amount to disabilities, we find that the absence from work from Oct 2022 was not because of any conditions but was because of [NAME] drug use and the treatment he was seeking for that.

170. [NAME] did not attend work in October 2022 as he removed himself from his homelife and environment because of his drug use- he accepted this in evidence. This absence was therefore not something that arose in consequence of a disability.

171. Then, from around November 22 until his dismissal he was in [NAME] for that drug use. That period of absence from work (which lasted until his dismissal) would also not amount to something arising in consequence of a disability.

172. We do not accept therefore that any part of the absence was “something arising” in consequence of any disability.

173. We also found no evidence to support a finding that the drug use flowed from any of the disabilities. As such, the absence because of his drug use could not something arising from a disability either.

174. Therefore, even if we are wrong about whether the conditions were disabilities and the Frist Respondent having knowledge of them, the claim for unfavourable treatment because of something arising out of disability would fail.

Failure to Make Reasonable Adjustments

175. We also went on to consider this claim.

176. The provision, criterion or practice (PCP) relied upon by [NAME] was “dismissing senior employees with absences for less than 6 months”. This was set out in the list of issues from the case management hearing and was accepted by both parties as how the PCP should be framed.

177. We do not accept that this was a PCP applied by the First Respondent.

Case Number: 1804326/2023 & 1804327/2023

178. [NAME[NAME] references [NAME] “absence” from the company in the dismissal letter but she says “absence of involvement” rather than physical absence due to sickness or any other reason.

179. It is clear to us that when [NAME[NAME] says “and you have been absent for the last 4 years” that she is talking about [RESPONDENT] disengagement from the First Respondent’s work and the fact he hasn’t been carrying out his duties.

180. We therefore do not accept that the Respondent had a PCP of dismissing senior employees if they had been “absent from work for less than 6 months”. There is no evidence to suggest that this was a policy that was applied to [NAME], nor to anyone else.

181. For there to be a PCP there must be some evidence of repetition or a decision. A one-off act or decision can be a PCP, but the Tribunal must be able to find that, even though the particular act was a one-off, it was likely that if similar circumstances arose again, the same act would be done again.

182. This must be apparent for a one-off decision to amount to a PCP otherwise the words “provision, criterion or practice” would not have been used in the Equality Act. The Equality Act does not say “any act, whether a one-off or one that is repeatedly applied” can give rise to a duty to make reasonable adjustments.

183. In this case, there was no evidence provided that if another employee was absent from work for less than 6 months, they would also be dismissed. As such, we found that a failure to make reasonable adjustments claim would also fail on this ground as the act complained of is not a PCP.

184. Mr [NAME] dismissal is also not just for his “absence”. There is a long list of reasons given in the letter.

185. We also find that even if this was a PCP it did not place [NAME] at a substantial disadvantage because of any disability he may or may not have.

186. Firstly, his absence from work at this period was not because of his conditions but because of the drug use and the [NAME].

187. Secondly, we note that [NAME] does not say that he has had any sustained absences because of any of his conditions.

Case Number: 1804326/2023 & 1804327/2023

188. As such, even if there was a PCP, we do not accept that [NAME] has suffered a substantial disadvantage compared to someone without his disability. As such, this claim fails on this ground too.

Employment Judge Singh

9th April 2026

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. 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:

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