“1. ... It is understood that proceedings have been presented to the Tribunal by the claimant relating [to] a complaint of unfair dismissal. However, the unfair dismissal proceedings are being dealt with separately and the findings of fact or decision in this case do not relate to any complaints brought by the claimant outside of the claim before the Tribunal today.”
“8. ... a marked changed of emphasis from the claimant’s agreed list of issues which did not include a complaint that the respondent continued to breach its duty to make reasonable adjustments contrary to section 20 & 21Equality Act 2010 insofar as it relates to the failure of the respondent to remove the 2-year serious warning from the claimant’s record and to review Ms Nevin’s investigation.” “10. The issues listed were amended further to reflect the conversation that took place between the parties at the outset of this hearing, and the claimant’s reliance on the expired serious warning in the unfair dismissal complaint. The issues relating to discrimination as agreed by the parties previously were confirmed by both to reflect the issues in the case, and there was no indication from the claimant that he wished to add to those issues, including the section 20-21Equality Act 2010 (“EqA”) complaint. It became apparent when the claimant was asking questions on cross-examination that he believed the 2-year serious warning remained a barrier to his return to work and whilst this in [sic] not a specific issue in the agreed list, the parties were put on notice prior to submissions that the Tribunal would deal with it having heard the evidence and submissions.”
“6. ..., and accordingly we have had to circumvent the difficulties caused by two different Tribunals hearing allegations that are linked within a factual matrix. This Tribunal has been careful not to return to the events which took place prior to January 2020 but still had in mind the background against which the new allegations set out in an additional 10 separate complaints can be made sense of.”
“28. These were a [sic] key findings, which the parties confirmed in respect of the J&R [judgment and reasons] 2020 generally, bound this Tribunal at the second liability hearing. However, the Tribunal has borne in mind the fact that neither party were aware of the outcome during the events which unfolded from January 2020 through to appeal dealt with by Rebecca Rees. The parties were in litigation; the claimant a litigant in person capable of dealing with a multitude of claims and the Tribunal processes, including hearings. The claimant believed he was right and the respondent wrong in its defence that no unlawful discrimination had occurred.”
“15. ... At this liability hearing the claimant described how difficult and stressful he found the litigation, so much so that he believed it was a reasonable adjustment for the respondent not to press him for a return to work in 2020 [in] order that he had time to prepare for the trial in October 2020. The Tribunal found the litigation which included a substantial number of different claims was an insurmountable barrier to the claimant returning to work, and it would have made no difference to his prospects of returning had the respondent removed the 2-year serious warning from the claimant’s record or review Ms Nevin’s investigation by the beginning of 2020. Ms Nevin’s investigation was renewed [sic] as recorded below, by a number of managers, but the claimant was unable to accept the result because he did not trust the managers or the respondent against a backdrop of repeated litigious allegations and assertions sent to a number of managers and the claimant’s conviction that he was going to win his case at trial. 29. The claimant believed the respondent was hiding the evidence necessary for his trial, he wanted it to reinvestigate the events prior to and following the issuing of the 2-year serious warning and remove it as evidence that he had done no wrong and should succeed in the litigation and so the Tribunal found. The respondent was defending the discrimination allegations and the actions of various managers through the entire process of hearings and appeals including the events of 2020, denying the actions alleged were discriminatory. The claimant did not understand that the respondent legitimately may protect its position in the legal proceedings and can take reasonable steps to do so. The claimant was unable to extract himself from the consequences of the litigation, ignoring his contractual obligation to attend work and fuelling his all-consuming distrust of the respondent and managers within and outside the litigation which commenced on14 August 2018 when the first claim was issued through to the additional complaints and the current proceedings on28 May 2020 and this liability hearing.”
“16. ... the claimant was attempting to litigate by correspondence and internal meetings in the knowledge of an imminent trial. He was capable of sending lengthy detailed communications coherently setting out his arguments and there was nothing to stop him from having discussions with managers about a future return to work and the adjustments he required in order to do so.”
“22. ... whatever adjustments the respondent carried out, and even had it complied with all of the claimant’s demands, the claimant believed managers had intentionally treated him “out of hatred” because he was disabled, it was a “hate crime,” they wanted him out of the organisation was through “psychological abuse and hate” and he would not have returned to work in any capacity.”
“32. ... The claimant wanted the respondent to admit they had got it wrong, the 2-year serious warning expunged despite its imminent expiration and the ongoing litigation around which these complaints were central. In short, the claimant was litigating and had no intention of returning to work whatever was offered to him.”
“46. ... The claimant was totally unconcerned with the possibility that there may be a breakdown in the employment relationship because he did not value that relationship, ...”
“52. ... it was clear he would not consider the possibility of any return to work until his demands were satisfied, despite the fact that they were being litigated on, both parties held a different view of the case and the trial was imminent.”
“56. The parties had reached an impasse. The respondent was entitled to discuss with the claimant his return to work outside the events that had given rise to the litigation. The claimant wanted to control the entire process to benefit his litigation and emailed a 6-page letter on the21 April 2020 to a number of recipients including Christopher Briggs, the union and the respondent’s solicitors “please can you pass this to the judges to see the unwanted discrimination” .... This communication was part of the litigation as far as the claimant was concerned, and he did not address the possibility that Christopher Briggs was acting in good faith by attempting to discuss with him what adjustments would be needed for the claimant to be able to return to work.”
“66. ... the claimant was intent on getting the 2017 bullying and harassment investigation reinvestigated and overturned in his favour and this remained the case throughout the relevant period leading to the first final hearing as it was “proof” of discrimination for the trial. ... 68. ... The claimant remained obsessed with proving his case, and his argument that he was not refusing to go to the meeting but deferring it was not supported by the evidence, and so the Tribunal found. The claimant was refusing, even if he chose to use the word “deferring” as he gave no end date in the future as to when the meeting could take place; it was open-ended in the same way as the possibility of the claimant returning to work was.”
“74. ... held a genuine belief that there was a irretrievable breakdown of trust between the claimant and his employer. He did not believe there is anything the business can do to facilitate a return to work.”
“77. ... the claimant was offered reasonable adjustments that one rarely sees in the Employment Tribunal, namely any job, anywhere and any shift throughout the organisation, and he gave the claimant time to come around to the idea of having a meeting before it became clear to him the meeting would never take place. ...”
“78. Christopher Briggs took the view that dismissal was the only option on the grounds that the relationship breakdown was irretrievable and the claimant was “unlikely to return to any form of work…in the foreseeable future…and had been given every opportunity to participate in my review…taking the decision to deliberately not partake in this review…this is a further indication that the employment relationship has broken down and that you have no intention of returning to work for Royal Mail”.”
“79. ... it was obvious the claimant was never going to return to work as there had been a total breakdown in the relationship underlined by the manner in which he conducted the litigation ...”
“109. The appeal hearing was thorough and objective, falling well within the bands of reasonable responses open to a reasonable employer dealing with the claimant and his grounds of appeal. Rebecca Rees missed nothing out of any note, and painstakingly dealt with the claimant’s points of appeal. Her conclusions fell well within the bands of reasonable responses, the claimant failing to offer any information or hope of a return to work in the future that would enable the dismissal decision to be overturned. The claimant’s position had become more and more entrenched, and Rebecca Rees acted reasonably when she decided the trust and confidence had been irretrievably lost by the claimant, and the dismissal should not be overturned.”
“147. ... because the working relationship had broken down to such an extent that the claimant would never return to work, and the reason was not down to the part played by the claimant in breaking down that relationship ...”
“150. ... The decisions by Christopher Briggs and Rebecca Rees are assessed in the light of the information before them at the time; and the [Johnson ET] trial ... had not taken place, and judgment had not been given before they reached their decision. The consensus by managers was that it was not possible to re-hear the circumstances around which the claimant had been issued with a 2-year serious warning on his file which by January 2020 was due to expire. The respondent believed during the relevant period that setting aside the 2-year serious warning was not a reasonable adjustment, and as at January 2020 onwards the Tribunal concurred with this view on the basis that the claimant would still not have returned to work, for the reasons further explained below. 151. During the relevant period from January 2020 the respondent’s managers genuinely believed the claimant was unreasonable in insisting the 2-year serious warning was taken off his file after it had expired and had no effect, which the claimant (who was supported by his union throughout) was aware of. The Tribunal did not find the claimant’s evidence that he did not understand the effect of its expiry on future misconduct credible, ....”
“154. ... A number of managers, including Mr Briggs, actively encouraged the claimant to return to work even to the extent of offering him any job he wanted in any place of work with any manager. It was open to the claimant to start work with what was in effect a clean sheet, putting the expired 2-year serious warning behind him in the knowledge that managers had left the business and he need not ever work with them again. He chose instead to litigate, as was his right, using internal correspondence and meetings as a mechanism to build up the case which he was convinced would succeed. Despite the issues being the subject matter of litigation facing imminent trial, and the respondent’s right to defend the claims, the claimant wanted to ensure he had sufficient evidence to win his case ..., and at no stage did the respondent prevent the claimant from returning to work. In short, the claimant did not want to return to work and placed barriers to ensure that he did not.”
“155. ... The claimant was unable [to] move away from the litigation and preparation of his case based on his belief that a miscarriage of justice had taken place when he was issued with a 2-year serious warning and the aftermath including the alleged criminal actions of managers. He had no trust in managers or the respondent, evidenced by the aggressive emails verging on rudeness at times, the number and extent of the emails sent to managers, covertly recording meetings with managers to be used as evidence in the litigation, threatening individual managers with litigation unless they complied with his requests and copying the Tribunal in an attempt to pressurise the respondent into compliance. In oral evidence the claimant admitted he had a habit of sending 9 emails in response to each email received from the respondent, which he attributed to his disability and the respondent’s actions in causing the anxiety that resulted in his behaviour. The claimant did not attribute his actions to his attempt to gather evidence for his trial, which was apparent from his communications. The claimant was unable to understand the effect his behaviour had on work relations coupled with his refusal to take part in any return to work discussions, and the appearance given was that he did not trust the respondent and could not return to work over a substantial period of time, although the Tribunal has limited its findings to the period January 2020 onwards as agreed with the parties.”
“161. ... had the claimant shown a genuine willingness to consider returning to work in his dealings with Christopher Briggs and Rebecca Rees, the outcome may well have been different. The claimant believed the respondent from 2017 targeted him when it found out he was disabled and from that moment he believed managers put pressure on him to resign, and it was impossible for the respondent to dislodge this suspicion which became more entrenched as the litigation progressed and the claimant became intent on proving his case through internal processes to guarantee his success at trial. .... The claimant’s dismissal and unsuccessful appeal against dismissal arose in consequence of the respondent’s response to the claimant’s actions and behaviour ..., and this would have been the same response to an employee who no longer had trust in the respondent or its managers, and who was not disabled with anxiety and depression.”
“163. ... the Tribunal found ... the claimant’s dismissal on12 June 2020 and dismissal of his appeal on2 November 2020 theoretically amounted to unfavourable treatment, but in the specific circumstances of the claimant’s case the dismissal did not constitute unfavourable treatment.”
“165. ... The claimant put down his behaviour to the anxiety caused by the respondent’s discriminatory actions, despite the fact that he was capable of conducting litigation, attend hearings and meetings and coherently communicate orally and in writing with the respondent, yet was unable to take part in any discussion about his return to work with adjustments. The Tribunal accepts the claimant’s argument that he had made legitimate complaints about his treatment as a disabled person over a lengthy period of time and his behaviour, for example, of sending nine emails in response to one communication from the respondent could possibly be attributable to his anxiety in ensuring he had all the evidence needed for a successful trial. There is no doubt the claimant was anxious about proving his case and succeeding on the issue of liability, and the way he went about trying to obtain that evidence had a significant influence on his actions including the lack of trust he had in the respondent which was an insurmountable bar to any return to work. The claimant’s action [sic] were underpinned by his lack of distrust [sic] in managers and the respondent business which culminated in his refusal to discuss a return to work and he showed no inclination for a return sometime in the foreseeable future, even with substantial adjustments being offered. This was the cause of the dismissal and there is no satisfactory evidence that this was something which arises in consequence of the claimant’s disability.” “166. ... was not satisfied that the breakdown in the employment relationship and loss of trust on the part of the claimant was a consequence of his disability ...”
“166. ... Having considered the conscious and/ or unconscious mental processes of Christopher Briggs and Rebecca Rees the Tribunal was unable to establish the causative link between “something” and the unfavourable treatment. The claimant’s behaviour was part of their decision-making process in that he had refused to agree a way forward out of the impasse, discuss a return to work and have trust in the respondent going forward, and it is this that prompted the dismissal. The claimant’s failure to engage with Christopher Briggs and the respondent in a constructive way was a result of the breakdown in trust and confidence between the parties, this was not “something” that arose in consequence of the claimant’s disability, described by the claimant as having made complaints about his treatment as a disabled person.”
“167. ... The legitimate aim was the requirement for regular and reliable staff attendance, and employees who are on long-term sickness absence to do all they can to meet with managers with a view to discussing reasonable adjustments leading to a return to work set against a background of occupational health advice. It was legitimate for the respondent to dismiss the claimant taking into account the claimant had been continuously absent since3 January 2018 through to termination with no foreseeable prospect of a return to work during which period the respondent employed someone to carry out the claimant’s role pending his return with additional costs arising from the claimant’s absence as set out in the dismissal letter. Initially the claimant confirmed he was not prepared to return back to work whilst the 2-year Serious Warning remained live, yet it remained an issue after expiry of the warning together with a raft of additional demands that were unrealistic and unachievable, for example, the respondent investigating a criminal hate crime. The claimant was aware from meetings held in 2019 he would need to return to work, and in 2020 that return to work was supported with various adjustments offered and rejected by the claimant in the knowledge that the respondent was regulated by a Universal Service Obligation that relies on regular and reliable staff as duties cannot be fulfilled when staff are on indefinite sick leave. 168. ... The Tribunal took the view that there were no less discriminatory measures available to the respondent given the impasse and breakdown in the employment relationship. 169. With reference to the issue has the respondent shown the treatment was a proportionate means of achieving a legitimate aim, the Tribunal found on the balance of probabilities, the respondent has made out its defence on justification. It was clear matters had reached a head; the 2-year serious warning the claimant objected to was expired and the impasse could not be bridged because of the claimant’s lack of trust in the respondent and/or managers and the breakdown in the working relationship coupled with a fervent belief on his part that he was right, the respondent wrong and he was going to succeed in the litigation which was used by the claimant as leverage. The claimant’s attempt to produce evidence from meetings held outside the litigation process by which he could prove his case was disruptive. The claimant was subsumed by the litigation; he was embroiled in over 20 cases and in the Tribunal’s view the litigation clouded his judgment. In short, the claimant was anxious to prove his case and prepare for the trial in October 2020 at any cost, even to the extent of losing his job which he believed he could also litigate over. ... 170. The respondent spent a long time attempting to resolve the impasse, The Tribunal did not accept that the respondent should have waited until (a) it had acceded to all of the claimant’s demands including a criminal investigation (which it could not carry out), (b) until the litigation had finished (which would have been October 2021/March 2022 when the claimant last attended work for the respondent in January 2018) and (c) after the litigation give the claimant a period of time in which to recover. These were all lesser measures sought by the claimant, but they would not have achieved the respondent’s legitimate aim of managing an employee’s absence when that employee had lost trust and confidence in it, the managers he dealt [with] and would not work for it again in the foreseeable future. The claimant’s refusal to take part of any discussions about his return to work and his loss of trust had negatively affected his relationship with any manager that dealt with him, and impacted on the respondent’s financial and operating costs as confirmed in the dismissal letter which were not disputed by the claimant. It was not possible to accommodate the claimant’s unreasonable demands and taking into account the factual matrix set out above, including length of the claimant’s absence, the breakdown in trust and confidence and unlikelihood that the claimant would ever return to work, whatever job was offered to him, leads the Tribunal to conclude that the dismissal was a proportionate means of achieving a legitimate aim.”
“183. ... In the claimant’s case the adjustments ... suggested ... would not have effectively resulted in the claimant returning to work. Based on the evidence before it, the Tribunal found there was no real prospect whatsoever of the claimant ever returning to his duties, whatever adjustment was made (including expunging the 2-year serious warning), and it was not reasonable for the respondent to make the adjustments the claimant listed in accordance with section 20(3) –(5) of the EqA, even had there existed a relevant PCP or physical feature that substantially disadvantaged the claimant, which there were not. Had the claimant’s appeal succeeded and he was reinstated, this would not have resulted in a return to work in the foreseeable future taking into account the total breakdown in the employment relationship and lack of trust and confidence the claimant had in the respondent and its managers, and so the Tribunal found on the balance of probabilities. ...”
“(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
“31. ... (a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport[1999] IRLR 572 . A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, .... (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s.15 of the Act ..., the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) ... However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. ... (i) As Langstaff P held in Weerasinghe [Weerasinghe v Basildon & Thurrock NHS Foundation Trust[2016] ICR 305 EAT], it does not matter precisely in which order these questions are addressed. ...”
“27. …in most cases ... little is likely to be gained by seeking to draw narrow distinctions between the word unfavourably in s15 and analogous concepts such as disadvantage or detriment found in other provisions, nor between an objective and a subjective/objective approach. While the passages in the [EHRC] Code of Practice ... cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.”
“42. In the leading cases ... the ‘treatment’ complained of has been an act which itself disadvantages the claimant in some way. ...”
“23. ... Save possibly in the very rare case where an employee for some reason wishes to be dismissed, dismissal will always be unfavourable treatment for the purposes of section 15.”
“(3) ... where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
“some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”
“22. It is clear that the Tribunal did not believe that the fact that the Appellant should have been allowed to return to his old role in full was a sufficient reason for him refusing to perform any part of that role. I cannot regard that as a perverse view on the part of the Tribunal. If the Appellant were right, it would have the consequence that he was entitled, in the context of a bona fide dispute, to refuse to do anything at all, notwithstanding that he was fit to work and receiving full pay, unless and until the Respondent yielded to his position on that issue, which was, as I have said, genuinely in dispute. The Tribunal was, in my view, entitled to regard that position as unacceptable, even though it found that the Appellant was in fact right on the issue in dispute. It is important in this connection to emphasise that the finding of discrimination which the Tribunal made was not based on direct discrimination, or on any kind of conscious or deliberate wrongdoing by the Respondent. It depended on a judgement about the justifiability of not allowing him to return straightaway to his full role as VSL after a long period off work, on which the Respondent's view, though held to be wrong, was not self-evidently so, and was not found to have been advanced in bad faith. 23. The Tribunal also said in terms that by the time the dismissal decision was taken the rights and wrongs of the dispute about the terms of the return to work could and should be distinguished from the question of whether the Appellant was entitled to do no work at all. As it put it ..., the situation had 'shifted away'. That was in my view a legitimate assessment. ... I do not accept that the fact that the Respondent had acted – or, more accurately, failed to act – discriminatorily against the Appellant, even in a closely related way, gave him an absolute right to refuse to work. Generally, the fact that one party to a contract has committed a prior wrong against the other, whether in the form of a breach of contract or tort or any other wrong, does not constitute an automatic solvent of his or her continuing obligations, and there is nothing special about discrimination in this regard. Acts of unlawful discrimination are not uniquely heinous: like other wrongs, they come in all shapes and sizes, and how it is reasonable to respond to them in any given case is a matter for the assessment of the Tribunal.”
“The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. … the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice …”
“The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense.”
“31. A list of issues is a useful case management tool developed by the tribunal to bring some semblance of order, structure and clarity to proceedings in which the requirements of formal pleadings are minimal. The list is usually the agreed outcome of discussions between the parties or their representatives and the employment judge. If the list is agreed, then that will, as a general rule, limit the issues at the substantive hearing to those in the list: …”
“31. … As the employment tribunal that conducts the hearing is bound to ensure that the case is clearly and efficiently presented, it is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence …”
“38. … what is ‘necessary in the interests of justice’ in the context of the tribunal’s powers under rule 29 depends on a number of factors. One is the stage at which amending the list of issues falls to be considered. An amendment before any evidence is called is quite different from a decision on liability or remedy which departs from the list of issues agreed at the start of the hearing. Another factor is whether the list of issues was the product of agreement between legal representatives. A third is whether amending the list of issues would delay or disrupt the hearing because one of the parties is not in a position to deal immediately with a new issue, or the length of the hearing would be expanded beyond the time allotted to it.”
“43. It is good practice for an employment tribunal, at the start of a substantive hearing, with either or both parties unrepresented, to consider whether any list of issues previously drawn up at a case management hearing properly reflects the significant issues in dispute between the parties. If it is clear that it does not, or that it may not do so, then the employment tribunal should consider whether an amendment to the list of issues is necessary in the interests of justice.”
“89. … where it is clear from a claim form and/or particulars of claim, that a lay claimant is saying, factually, I was subjected to discrimination in my employment and this drove me to resign, it is both proper, and incumbent on the Tribunal, to seek clarification of whether such a claim is intended.”
“84. … the ET … [has] a duty, if it is obvious from the ET1 that a litigant in person is relying on facts that could support a legal claim, to ensure that the litigant in person does understand the nature of that claim. In addition, if the ET decides that the litigant in person has decided not to advance that claim, the ET should be confident that the litigant in person has withdrawn that claim advertently.”
“Misunderstanding or misapplying the facts may, in my view, amount to an error of law where the Tribunal has got a relevant undisputed or indisputable fact wrong and has then proceeded to consider the evidence and reach further conclusions of fact based upon that demonstrable initial error. Such may be an error of law because the Tribunal is required by law to consider the case in accordance with agreed or undisputed facts. Where, however, the alleged misunderstanding of fact depends upon a decision of fact open to the Tribunal to make, and which it did make, then an attack on that finding cannot be converted into an error of law unless it can be shown that there was no evidence to support it, or that the conclusion was perverse.”
“It is very important, and sometimes difficult, to remember that where a right of appeal is confined to questions of law, the appellate tribunal must loyally accept the findings of fact with which it is presented and where, as can happen from time to time, it is convinced that it would have reached a different conclusion of fact, it must resist the strong temptation to treat what are in truth findings of fact as holdings of law or mixed findings of fact and law. The correct approach involves recognition that Parliament has constituted the [employment] tribunal the only tribunal of fact and that conclusions of fact must be accepted unless it is apparent that, on the evidence, no reasonable tribunal could have reached them.”
“There is no doubt the claimant was anxious about proving his case and succeeding on the issue of liability, and the way he went about trying to obtain that evidence had a significant influence on his actions including the lack of trust he had in the respondent which was an insurmountable bar to any return to work.”
“167. ... Initially the claimant confirmed he was not prepared to return back to work whilst the 2-year Serious Warning remained live, yet it remained an issue after expiry of the warning together with a raft of additional demands that were unrealistic and unachievable, for example, the respondent investigating a criminal hate crime. ...”
“169. ... It was clear matters had reached a head; the 2-year serious warning the claimant objected to was expired and the impasse could not be bridged because of the claimant’s lack of trust in the respondent and/or managers and the breakdown in the working relationship coupled with a fervent belief on his part that he was right, the respondent wrong and he was going to succeed in the litigation which was used by the claimant as leverage. The claimant’s attempt to produce evidence from meetings held outside the litigation process by which he could prove his case was disruptive. The claimant was subsumed by the litigation; he was embroiled in over 20 cases and in the Tribunal’s view the litigation clouded his judgment. In short, the claimant was anxious to prove his case and prepare for the trial in October 2020 at any cost, even to the extent of losing his job which he believed he could also litigate over. ...”