Mr H Ahmed v Department For Work And Pensions: 1300215/2018

EMPLOYMENT TRIBUNALS

Case No 1300215/2018

Between

Mr H AhmedClaimant

Department For Work And PensionsRespondent

Before

Employment Judge Flood

Date 3 July 2024

JUDGMENT

[1]The claim of Indirect disability discrimination is dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to hearing on 24-28 June 2019. JUDGMENT

[2]The unanimous Judgment of the Tribunal is that the claims of discrimination arising from a disability, failure to make reasonable adjustments and victimisation are not well founded and are dismissed. The claim of indirect discrimination is dismissed on withdrawal by the claimant.

REASONS

[1]By a claim form submitted on 13 January 2018, the claimant brought claims that the respondent acted contrary to the provisions of the Equality Act 2010 (“EqA”) by failing to make reasonable adjustments (ss.20-21), indirect discrimination (s.19), discrimination arising from a disability (s.15) and victimisation (s.27). The claimant subsequently withdrew the indirect discrimination claim. The respondent contests all of the claims and claimed some to be out of time.

[2]The details of the reasonable adjustments claim are, firstly, that the respondent applied a provision, criterion or practice (“PCP”) to him that he achieve a certain level of attendance at work to avoid being subject to the respondent’s absence management procedure. This represented a substantial disadvantage to the claimant because his disability (paroxysmal nocturnal haemoglobinuria (“PNH”)), which is accepted by the respondent, meant it was more likely he would have sickness absences and therefore harder for him to achieve the required attendance levels. The reasonable adjustment contended by the claimant is that he should have been allowed 11 sick days in a rolling 12 month period from December 2016 as he said was agreed by the respondent.

[3]Secondly, the claimant stated that a PCP was applied to him to the effect that he was required to be flexible in taking his scheduled morning breaks and/or to work during a scheduled break. This was a change to what was agreed by him at the Preliminary Hearing before EJ Harding on 7 August 2018 which he only raised at the commencement of the Hearing and to which the respondent raised no objection. The claimant said his refusal to comply with this PCP resulted in the substantial disadvantage of being unfairly criticised. The reasonable adjustment contended was that he be allowed to take his morning breaks at the allotted time.

[4]Thirdly, the claimant claimed the respondent applied a PCP to him that he was required to undertake an excessive workload and the substantial disadvantage this caused was that he was unfairly criticised for refusing to comply with the request. The reasonable adjustment claimed is that he should not have been given work on short notice or asked to carry out the work of others.

[5]The claim under s. 15 EqA has not been clearly set out by the claimant despite the efforts of EJ Harding at the Preliminary Hearing to explain the nature of the provision. Ultimately, the detail recorded was that he was unfairly criticised for taking scheduled breaks, blocking out his diary and refusing work because of the tiredness and fatigue caused by his disability.

[6]As regards victimisation, the protected act claimed, and accepted by the respondent, is the claimant’s previous tribunal claim. The detriments allegedly suffered by the claimant are set out in his lengthy particulars of claim but are summarised here as:(i) falsely criticising him for missing a customer appointment;

(ii) setting unreasonable tasks and/or an excessive workload by asking him to carry out a one hour customer appointment when his diary was full, asking him to see a customer during his break and asking him to see five additional customers when he already had his own pre-booked appointments to carry out;

(iii) subjecting him to unfair informal action by undertaking an investigation into his sickness absence when he had not reached his trigger point of 11 days’ absence;

(iv) not changing his line manager in a timely manner after he had raised a grievance against his then current line manager;

(v) harassing him by his line manager calling him to meetings after he had made clear he would not attend any further meetings with her;

(vi) management making false claims that he had been aggressive and rude, specifically: he had been rude and aggressive to his line manager when it was she who was rude and aggressive to him; and he threw a letter on his line manager’s desk when he did not;

(vii) Not dealing with his grievance properly in that key evidence and witnesses were ignored and the manager hearing the grievance was biased against him. The claimant contends that all of these incidents were designed to build a case for disciplinary action against him because of his previous tribunal claim against the respondent and its officers.

The Issues

[7]The issues before us arise principally from the same facts as alleged by the claimant. We regard them as follows:(i) did the respondent have PCP’s of requiring employees to achieve a certain level of attendance in order to avoid being subjected to its absence management procedure; requiring employees to be flexible in the times at which their morning breaks were taken; and requiring them to undertake an excessive workload;

(ii) if so, did any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time in that he was unfairly criticised for refusing to comply with any such PCP?

(iii) if so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be placed at any such disadvantage?

(iv) if so, were there steps that were not taken that could have been taken by the respondent to avoid such disadvantage as set out by the claimant and would it have been reasonable for the respondent to have taken them?

(v) Did any of the disadvantages claimed by the claimant arise in consequence of his disability and did the respondent treat the claimant unfavourably in any of those ways? If so, has the respondent shown that the unfavourable treatment was a proportionate means of achieving a legitimate aim?

(vi) Did the alleged unfavourable treatment of the claimant by the respondent arise because he did the protected act of bringing a previous tribunal claim?

The Law

[8]We have , as a starting point in relation to each of the claims, considered the wording of the relevant provisions of the EqA, namely, sections 15, 20, 21, 27 and 136. These provisions are largely reflected in the issues outlined above. Insofar as they were relevant to the issues, we have borne in mind the judgments in Nagarajan v London Regional Transport

[1999] ICR 877

, Islington Borough Council v Ladele

[2009] ICR 387

EAT, Madarassy v Nomura International Plc

[2007] EWCA Civ 33

, Griffiths v Secretary of State for Work and Pensions

[2015] EWCA Civ 1265

, Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

EAT, General Dynamics Information technology Ltd v Carranza

[2015] ICR 169

and Chief Constable of the West Yorshire Police v Khan

[2001] ICR 1065

, HL.

The Evidence

[9]We heard evidence from the claimant and, for the respondent, from Myhriam Bi, the claimant’s Line Manager at the relevant time, Andrew Hickman, a Work Coach Team Leader, who mentored Miss Bi, and Elizabeth Ordidge, Miss Bi’s Line Manager. We had before us a bundle of 397 pages and a further bundle from the claimant of 27 pages. References to page numbers in this judgment are to page numbers in the bundles.

[10]As the claimant was acting in person, the Employment Judge (“EJ”) carefully explained the procedure to be adopted in the Hearing. He was told that, once the evidence had been concluded, he would be given some time to prepare his submissions if he needed and wanted it. The effects of his disability were discussed and, in particular, the fatigue arising from his PNH. He was told he could take breaks when he needed to and the Hearing could finish earlier than 4 pm if he felt unduly fatigued by each day’s events. He was asked whether he wished the tribunal to build in periodic breaks during the course of each day or would prefer to just indicate when he needed a break. He chose the latter course of action. Notwithstanding this, he was asked by the EJ on a number of occasions whether he needed a break.

[11]The claimant was also advised by the EJ that he should be wary of trying to give his own evidence when he was cross-examining witnesses. In the event, this did not seem to register with him as he repeatedly interrupted the respondent’s witnesses before they had finished answering his questions. This arose whenever he disagreed with their evidence and he became visibly excitable when this happened. He also had to be told by the EJ to let Mr Feeny finish asking his questions before he attempted to answer them.

[12]The claimant was also rude to the witnesses on occasions, to opposing counsel and the EJ. In particular, he accused Mr Feeny of not knowing what was in the bundle, and accused Miss Bi, when she asked for some water, of trying to test him to see if he would ignore her and asked whether she had staged her request. The EJ told him this was a most inappropriate comment but it did illustrate to us that he saw conspiracies in the most innocent situations.

[13]In his cross-examination of Ms Ordidge, the claimant was asking about her knowledge of his previous tribunal claim. When she indicated she did not know much of the detail about it he said he would take her answer as a “yes” meaning she did know all about it and had it in mind when dealing with him. He was seemingly incapable of accepting her answer and repeated that he would take it as a “yes”. The EJ pointed out to him that Ms Ordidge’s answer had been perfectly clear and it was for the tribunal to assess its credibility. He then began arguing with the EJ who patiently explained to him that he had a habit of trying to interpret the evidence of witnesses to his own ends when he did not like their answers. The EJ explained again that credibility of the evidence was a matter for the tribunal but he could raise it in submissions. He replied that he did not intend to wait for submissions. He was reminded that he had been told time would be given for him to prepare his submissions at the conclusion of the evidence. He said he would be leaving at the end of the evidence and that he was clearly annoying people. The EJ explained that it was his role to explain matters to him but his being argumentative was not helpful. He then asked for a break and told the EJ, with more than a hint of sarcasm, “You can make a note of that”, meaning the exchange they had had. 13. There was a further altercation when, after the break requested by the claimant when he was becoming irritable in his cross-examination of Ms Ordidge, he resumed his cross-examination with the words, “You’re a racist aren’t you” and when Ms Ordidge was clearly shaken by that comment, he repeated it. The EJ told him that his comment was inappropriate and he was haranguing the witness. His cross-examination continued and he again interrupted Ms Ordidge before she had answered one of his questions and when reminded by the EJ to let her finish he said he had no more questions.

[14]When it came to submissions the claimant was adamant he would not make any. He asked if he was compelled to stay and, when it was confirmed he was not, he left without hearing what Mr Feeny had to say.

[15]It was clear to the tribunal that the claimant could be very difficult. He reacted badly when anyone disagreed with his point of view and seemingly was incapable of stopping himself from interrupting the evidence when he did not like it becoming excitable and sometimes rude. In giving his evidence he was also at times prone to speculation. For example, he said in evidence that on a day in November 2017, he went to the storeroom to get a form and when he came out Miss Bi was coming quickly towards the storeroom while Mr Hickman looked on. The claimant said it seemed to him that Miss Bi was going to try to provoke him despite the fact that there was absolutely no evidence Miss Bi was actually going to the storeroom – and did not in fact go in.

[16]Of course, we appreciate the effect of the claimant’s disability upon him, particularly that he suffers from fatigue and can become quite stressed. However, it seemed to us that he was at times quite incapable of accepting any point of view other than his own and this was reflected in his behavior throughout the Hearing. As we shall discuss below, this behaviour was also apparent in his work environment which clearly led to him being very difficult to manage.

[17]We found the evidence of Miss Bi to be given in a straightforward manner. She answered questions without having to think about them and we considered her to be open and honest. She clearly lacked experience as a manager and dealing with the claimant would have been an intimidating experience. She explained how she approached managing the claimant with advice and coaching from her mentor, line manager and HR. She was at pains to point out that her intention in dealing with the claimant’s sickness absence was to consider with him how she could support him further but, in the event, that was not possible because he refused to engage with her. We accepted Miss Bi’s evidence that, although aware of the claimant’s previous tribunal case, she was unaware of the details.

[18]Mr Hickman was the officer of the respondent who increased the trigger point for the claimant’s sickness absences from 8 to 11 days. He said he took advice before meeting with the claimant on 23 December 2015 from the respondent’s Complex Case Service who advised him that 11 days would be appropriate in the claimant’s case. Mr Hickman was involved in 2 incidents with the claimant which form the basis of his complaints, namely, the letter increasing the trigger point at which he would be asked to attend an Absence Management Meeting (page 88) and asking the claimant on one occasion if he could be flexible with his break time. Mr Hickman’s evidence in relation to these matters was consistent with the documents in the bundle and we had no reason to doubt it.

[19]It is fair to say that the claimant gave Ms Ordidge a difficult time when cross-examining her. He often asked her to speculate as to why, for example, Miss Bi had taken a particular course of action. The claimant showed frustration when she could not give a detailed answer. This was because she did not directly manage the claimant and had responsibilities at another of the respondent’s offices so was not always there. Miss Ordidge was genuinely upset by the claimant’s conduct towards her which included him saying he did not believe her, trying to interpret her answers to his own ends, attempting to finish her answers for her, not allowing her to finish answering questions put to her and calling her a racist. In the circumstances, Ms Ordidge handled the questions well. We did, however, have some reservations about her recollections of receiving emails and conversations with Miss Bi and others but, as will be apparent from our discussion below, nothing relating to the issues in this case turned on this. The Factual Background

[20]In relation to the issues before us, we have made findings of fact to the extent we considered reasonably necessary in order to reach our decision. We have tried to avoid becoming embroiled in discussions about every factual detail, such as every email in the bundle and the circumstances and detail of every alleged conversation, although we appreciate the parties may attach greater significance to these matters than we do. We say at the outset that the statements of Messrs S Ahmed and S Zulfqar produced by the claimant have been given little weight since those witnesses did not attend the Hearing and so were not cross-examined. The claimant confirmed he understood this.

[21]The claimant was employed as a Work Coach at the respondent’s Washwood Heath Job Centre. His employment commenced in 2007 and is continuing. Briefly, his job was to interview those claiming benefits and attend to people who claimed benefits over a longer period and who needed to “sign on” periodically and for which a short interview slot was given on the assumption this would not take very long.

[22]On 20 September 2016, the claimant brought claims of disability discrimination and victimisation under claim no. 1302373/2016. The Hearing took place in April 2017 and he was awarded compensation for injury to feelings in respect of the respondent’s failure to make reasonable adjustments due to the claimant’s disability, which was conceded. This claim is the protected act for the purposes of the victimisation claim before us.

[23]Although at the Preliminary Hearing the claimant said the relevant period over which discrimination took place is 7 July 2017 until the end of January 2018, it is necessary to begin with the claimant’s meeting with Mr Hickman, his then line manager, on 23 December 2016 which followed a Back to Work meeting on 30 November 2016 (page 85). At this time, the claimant had accumulated 22 days’ sickness absence in his then current rolling 12 month period. Mr Hickman took advice from the Civil Service HR Casework (page 86) prior to meeting the claimant. In his letter setting out what had been discussed, Mr Hickman expressed concern about the claimant’s level of sickness absence and noted that there had been 4 occasions when action could have been taken in the form of written warnings but no action had been taken. Recommendations were made to the claimant regarding seeing his GP and further consulting Occupational Health. The upshot of this meeting was that Mr Hickman altered the trigger point of 8 days absence in any rolling 12 month period (and applicable to all employees) to 11 days. The letter states (page 88), “…however when all adjustments have been made if further levels of absences occur then formal action will again be considered if the levels remain unsatisfactory in a rolling 12 month period”.

[24]This letter is a major source of contention between the parties. The claimant insists that its effect was to “wipe the slate clean” and a new rolling 12 month period for calculating his days of sickness absence began immediately after the meeting with Mr Hickman. The respondent takes the view that the current rolling year remained in place and that further absences would be added on to those 11 days already accumulated. Indeed, in his witness statement, Mr Hickman was clear that his intention was that both previous and future absences would be taken into consideration under the respondent’s absence management procedure (paragraph 6). We spent some time reviewing this letter. If the claimant is right in his interpretation of it, he would have been entitled to 33 days’ absence in the current rolling 12 month period without facing any further absence discussions. Of course, his view is that his rolling 12 month period started afresh from the date of that meeting. We do not subscribe to that view. We find nothing in the letter to support the idea that his 22 days’ absence already accumulated was to be ignored. We reach this conclusion having noted the advice given to Mr Hickman by HR (page 86) and also because the claimant did not challenge Mr Hickman on the point in cross-examination. We consider it to be clear from the evidence that the claimant was to be given a further 3 days’ sickness absence in his current rolling 12 month period.

[25]Mr Hickman noted in his meeting with the claimant that the stress reduction plan put in place for the claimant (page 77) did not seem to have been implemented. We note (page 78) that this suggests the claimant “say no more often”, speak to his manager if he felt he was getting behind and to pass customers on to others if they were waiting when he was due to go on his break. There are also a number of stressors affecting the claimant for which he was required to take positive action in speaking to his manager and accessing elearning materials. There was no evidence before us that the claimant took such action, only that he reacted to matters which he said caused stress.

[26]Mr Hickman also recommended the claimant have another consultation with Occupational Health and referred him accordingly although we note the next report is dated 17 August 2017. The outcome of that consultation (page 95) included the following recommendations: “Monitor the workload to avoid uneven, unexpected or excessive demands, and to ensure that it is commensurate with current capabilities”. “A continuing supportive and empathetic approach would be advised as likely to help him remain in work”. “It is important to recognise stressors arising and to take prompt empathetic action; therefore, you may consider that supportive mentoring may help provide an opportunity to express any workplace needs and concerns”.

[27]A further stress reduction plan was also put in place on 24 August 2017 (page 97) in which there was a continuing theme to the effect that the claimant should take his breaks on time and that the standards of behaviour policy should be adhered to, presumably by both the claimant and management.

[28]The next significant factual issue arose in October 2017 after the claimant returned to work from a period of sickness absence. Miss Bi had indicated to him that she would undertake his back to work interview. The claimant told her he did not want her to do it as he did not want her to look at his OH report. The claimant had returned to work on 14 September. After the initial exchange just referred to, Miss Bi approached the claimant to confirm she would be conducting the back to work interview. He again said he wanted an experienced manager as his case was “complex and sensitive” (paragraph 15 of his witness statement). Miss Bi consulted Ms Ordidge and then confirmed she would conduct the interview. The notes of interview dated 4 October (page 109) do not appear to be controversial. However, Miss Bi advised the claimant he had taken 5 spells of absence since 19 September 2016 and had passed his trigger point by reaching 16 days’ absence. The claimant reacted by disputing this and affirming his understanding that the slate had been wiped clean in December 2016 by Mr Hickman. Miss Bi then tried to give a letter to the claimant asking him to attend an absence management meeting in response to which the claimant accused management of victimising him because of his previous tribunal proceedings. He alleged Miss Bi had not followed the respondent’s absence management procedure which stated that a formal investigation could not be held before an informal discussion had taken place. He refused to accept this letter.

[29]The claimant then alleges that Miss Bi went into a nearby room and he saw her discussing some papers with a manager, Mr Hunt, and his deputy, Mr Singh. He says at paragraph 21 of his statement, “The impression I got was that (Miss Bi) was discussing my case with (them)”. Since the claimant could not hear what Miss Bi was discussing with Messrs Hunt and Singh, we find his evidence on this point to be pure speculation.

[30]Ms Ordidge asked to see the claimant on 6 October and asked to discuss Mr Hickman’s letter which increased his trigger point. The claimant did not dispute in his oral evidence that he raised his voice (he says to match the level of Ms Ordidge’s) and said that neither she nor Miss Bi knew what they were doing (incidentally, the same phrase he used towards Mr Feeny). He also said he was leaving when Ms Ordidge confirmed the meeting was not formal.

[31]Subsequently, after seeking the counsel of Ms Ordidge and HR, Miss Bi left the letter inviting him to an absence management meeting on the claimant’s desk. He took it to Ms Ordidge and said he was not attending the meeting. She left the letter again and he returned it to her, dropping it on her desk. He subsequently raised a grievance against both Miss Bi and Ms Ordidge claiming, inter alia, bullying and harassment and that the absence management process had been applied incorrectly. He had by this point written to Miss Bi in rather curt terms (page 111 and 121) and to Ms Ordidge to confirm he would have no further meetings with Miss Bi (page 112 and 157). In fact, he subsequently wrote to Ms Beech, who was investigating his grievance clarifying that he did not just want to deal with either of them during the investigation, but did not want to deal with them again (page 158).

[32]We do not agree with the claimant in this regard. His opinion is that no formal action may be taken until after an informal process has been followed. He relies on the wording of the policy (page 333) which states, “Your manager is likely to discuss any concerns about your sickness absences with you informally to begin with”. However, at page 334, the policy states, “Your manager will begin the formal absence management process when you have been absent for either 8 days or 4 spells or more, within the current 12 month rolling period”. This is then amended for those employees whose trigger points have been increased, as with the claimant. The policy also requires employees to engage in the process at both formal and informal levels. The claimant clearly refused to do this. We find he did so in the mistaken belief that Mr Hickman’s letter should be interpreted his way and not the way it was meant.

[33]As the claimant refused to attend the meeting, Miss Bi reached her decision on his absences and wrote to him to advise she was not going to issue a warning but encouraged further engagement with OH (page 166).

[34]Miss Bi had continued to line manage the claimant and there were 2 further altercations between them. The first occurred on 5 October 2017 when Miss Bi approached the claimant while he was on his break asking if he could see a customer after it. He took umbridge at this and, although their accounts differ, it is clear he flatly refused to help out, told Miss Bi he had asked her deputy to tell her he did not wish to speak to her, not to interrupt him on his break and that she asked if he was refusing a reasonable management request. Then on 30 October, the claimant returned from his break to find papers for 5 customers on his desk who had not been booked in to see him. He asked them who had told them to put the papers on his desk and they pointed to Miss Bi who he says was glaring at him. He told the customers to give their papers back to Miss Bi which they did.

[35]During the course of the investigation into his grievance, the claimant asked Ms Beech to change his line manager. This was done but it took around 6 weeks. The delay was due to pressure of work, absences from the office and the claimant’s refusal to allow a number of people to line manage him. In effect, the respondent was running out of people to undertake this task.

[36]At around the same time, Miss Bi was actively taking advice from HR and was told to continue with the absence management process and the claimant’s mid-year review, which he refused to attend with her. Miss Bi was an inexperienced manager and it was entirely appropriate for her to take such advice. Her email exchanges with HR were produced to the claimant as a result of his subject access request. The claimant takes issue with the comments Miss Bi makes about him in these emails and the log she kept (page 313). He says the comments are unfair but, given his admissions about what he said to Ms Ordidge, we consider them to be reasonably accurate. We bear in mind two things here. Firstly, Miss Bi was seeking advice on how to deal with the claimant’s behaviour and, secondly, he received no warnings whatsoever for his absence or his conduct. We accept that Miss Bi was genuinely trying to do her best to understand the claimant’s disability and to support him. With his conduct at the Hearing and the comments made about him in evidence, he was clearly a very difficult person to engage with and his behaviour was prompted by others disagreeing with him as much as him believing he was having worked “dumped” on him.

[37]It also became apparent to Miss Bi that the claimant was blocking out periods in his diary so that no appointments could be made during those periods. In her evidence, Miss Bi confirmed this was a perfectly acceptable practice provided the employee had previously cleared it with his or her manager. The claimant had not done this. Whilst he says he did it because he was tired due to the effects of his disability, we consider it entirely reasonable for this to have been cleared with his manager first. This is all part of the engagement encouraged in his stress reduction plan. Any criticism leveled at the claimant in this regard was entirely justified.

[38]The claimant’s grievance was thoroughly investigated but not upheld (pages 246 and 248) as Ms Beech found no evidence of bullying or harassment by either Ms Ordidge or Miss BI. The claimant appealed this outcome but his appeal was dismissed by Ms S Jury-Onen, Black Country Service Leader (page 417). Submissions

[39]The claimant made no submissions and left the Hearing without listening to the respondent’s submissions.

[40]Mr Feeny produced written submissions which he supplemented with oral argument. We summarise these with an apology if we have missed a point he considers important. On ss. 20-21, he submitted that there were 3 complaints. The first was invoking the absence management procedure. There was a PCP of a requirement that the claimant, in line with other employees, had to achieve a certain level of attendance to avoid being subjected to the procedure. The claimant’s disability put him at a disadvantage because his levels of absence were likely to be higher but a reasonable adjustment had already been made for him by increasing his trigger point from 8 to 11 days. There was no agreement, as suggested by the claimant, that the slate had been wiped clean in December 2016 and it would not have been reasonable to do this.

[41]The claimant’s second complaint was of not being able to take his morning breaks and/or being required to be flexible in taking them to accommodate customer appointments. The PCP applied was requiring employees to be flexible in the times at which breaks were taken. The claimant refused so there was no disadvantage to him.

[42]The third complaint arose out of the allegation that the PCP was the requirement to take on an excessive workload. As with the second complaint, there was no disadvantage to the claimant as he refused to undertake extra work.

[43]In relation to s.15, the claimed unfair disadvantage was being subjected to criticism but it was unclear what the “something” was that the claimant alleged was the reason for his treatment. He discussed causation and asked whether this was a case where the effects of the claimant’s disability led to unfavourable treatment, which was denied. If it was such a case, the requests made to the claimant were reasonably necessary to achieve the legitimate aim of ensuring employees comply with reasonable management requests.

[44]As for victimisation, the previous tribunal proceedings were accepted as being a protected act. It was for the tribunal to determine whether that protected act was the reason for the treatment complained of in the sense of being a material influence on the decisions.

[45]Mr Feeny argued that any act or omission which predated 16 August would be out of time and this caught the alleged unfair criticism from Mr Hickman on 7 July 2017. Further, it was arguable that the respondent might reasonably have been expected to make the reasonable adjustments sought by the claimant before 16 August 2017.

Conclusions

[46]Our discussion begins with the claimant’s character and issues. The Preliminary Hearing refers to his social anxiety but we heard nothing further on this as to how, for example, this affects him and whether it is a consequence of his disability. The judgment in his previous tribunal claim describes him as “difficult and prickly”. Considering our own observations and the exchanges that took place between the claimant and the Employment Judge, and the claimant and the witnesses and opposing counsel, it is a very apt description. He certainly identified as excitable and rude and became rather truculent when anything was said by anybody with which he did not agree. He is clearly a very difficult employee to manage and his responses during exchanges in the events leading up to his current claims were to refuse to engage with the person on the other side of the disagreement. Further, he did so, both verbally and in writing, in a manner which, at the very least, amounted to insubordination. This is not an attempt to assassinate the claimant’s character but it is necessary to record for reasons which will become apparent below.

[47]We note the burden of proof in disability claims. It is for the claimant to establish facts from which we could decide in the absence of any other explanation that discrimination has taken place in which case the burden shifts to the respondent to show it did not discriminate against the claimant. We have considered the totality of the evidence in relation to each of the claims.

[48]We firstly consider the s.15 claim. S.15 EqA states that treatment of a disabled person amounts to discrimination where: an employer treats the disabled person unfavourably; because of something arising in consequence of the disabled person’s disability; and the employer cannot show that this treatment is a proportionate means of achieving a legitimate aim. It is accepted that the respondent had knowledge of the claimant’s disability.

[49]The case summary from the Preliminary Hearing records that EJ Harding spent much time explaining this concept to the claimant who did not understand why he had to consider what was in the minds of those he alleges treated him unfavourably. He fared no better in his email to the tribunal (page 248A-B) where he said, “The EJ infers I do not understand my s15 claim. My ET1 states “I was repeatedly unfairly criticised by managers because I took my breaks on time, blocked my diary out and declined certain work; I only did this to manage my disability related tiredness and fatigue”. The Equality and Human Rights Commission Code (EHRC) acknowledges, in reference to s15 of the Equality Act 2010, “The unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability”. The EJ states in the same section: “The claimant queried why it was necessary for him to say what he thought was in the respondent’s mind (that caused them to act as they did).” The same way my query wasn’t answered at the PH it is not answered by the EJ in the Order. The way the question came across to me at the PH was that I had to propose an objective justification for the respondent’s behvaiour (sic) and I couldn’t; that is a matter for the respondent.”

[50]This passage illustrates two things. Firstly, the claimant did not understand the nature of a s.15 claim (for which we make no criticism of him) and, secondly, his propensity for blaming others – in this case, EJ Harding. Of course, properly addressing the point would have been a matter for submissions but the claimant chose not to make any.

[51]Since the claimant did not address the point, the tribunal considered the evidence to try to establish whether he had been treated unfavourably because of something arising in consequence of his disability. We note there must be a connection between whatever led to the unfavourable treatment and the disability. The unfavourable treatment relied on by the claimant is the unfair criticism already mentioned. We have to consider whether the unfair criticism as alleged by the claimant arose in consequence of his disability. The exchanges between the claimant and Miss Bi were addressed by both of them in their evidence. There is some dispute as to who was guilty of the more aggressive behaviour with each blaming the other. Miss Bi recorded in her emails to HR and her log that the claimant was verbally aggressive and physically intimidating. She sought advice on how to deal with this and thought the claimant had failed to follow a reasonable management instruction. Miss Bi was an inexperienced manager dealing with a difficult employee. We accept her evidence that she sought advice from HR in good faith detailing what had happened with the claimant. In essence, she wanted to run an efficient team and the claimant reacted badly to what she saw as reasonable requests. We do not consider that she had the claimant’s disability in mind when she criticised him. The claimant said that he became stressed as a result of his disability and we understand that may well be a consequence. However, by his own admission, and the tribunal’s experience of him, he was argumentative and simply not willing to engage with those who disagreed with his point of view.

[52]In assessing the s.15 allegation we have considered the Sheikholeslami decision in terms of the potential causation being rooted in the claimant’s disability. We do not find that Miss Bi’s criticism of him was either consciously or subconsciously as a result of his disability. She criticised him because of his behaviour and the refusal to help out by seeing additional appointments. In our view, if the claimant’s disability had any bearing at all in relation to s.15, and we do not find it did, it was no more than trivial.

[53]The tribunal considered that this alleged unfavourable treatment arose not because of the claimant’s disability, but as a result of his behaviour and we conclude, therefore, that s.15 is not engaged.

[54]We next consider the alleged failure to make reasonable adjustments. It is clear from the decision in Griffiths that applying a PCP which requires a certain level of attendance and puts an employee at risk of disciplinary action if that level is exceeded, may put a disabled employee at a substantial disadvantage. In the claimant’s case, this was addressed by the respondent increasing his trigger days from 8 to 11 in a rolling 12 month period. If we understand the claimant’s case correctly, the reasonable adjustment would have been to wipe the slate clean in December 2016 and allow him to take further days of sickness absence. If the claimant’s interpretation is correct, that would have meant he could have taken 33 days of sickness absence in a rolling 12 month period. As we have already found, we do not agree with the claimant’s interpretation of the outcome of his meeting with Mr Hickman.

[55]We have considered the decision in Carranza in relation to the steps necessary to avoid any disadvantage to the claimant. We are not convinced by Mr Feeny’s argument that there was no step to take, only a failure to wipe the slate clean. In our view, wiping the slate clean would equate to a step for the purposes of s.20(3). However, we do not think that an exercise in semantics will assist us in this case. We consider that increasing the claimant’s trigger point from 8 to 11 days was a reasonable adjustment and, incidentally, one which the claimant seems to have readily accepted at the time it was made. This part of the claim relies on an interpretation of Mr Hickman’s letter and we find the claimant is wrong. It would not be reasonable for the respondent to allow the claimant to take more than 11 days’ absence without the absence management procedure being invoked. We find no merit in the claimant’s argument that inviting him to an absence management meeting was a failure to make reasonable adjustments.

[56]The claimant also complains about being asked to not take his breaks at the allotted time and for being unfairly criticised when he refused to be flexible. His reasonable adjustment would appear to be that he is not asked to be flexible. The fact is that he was asked and steadfastly refused. No disciplinary action was taken against him as a result of this refusal. The question is whether the PCP of requiring employees to be flexible in order to meet the business needs of the respondent put the claimant at a substantial disadvantage because he was unfairly criticised for refusing the request. We find that it does not and did not in the case of the claimant. He did not address the point as to whether, in being flexible, he would have suffered increased fatigue as a result of his disability.

[57]In relation to the claimant’s allegation that he was asked to take on an excessive workload falls at the same hurdle. He was asked to see additional customers but refused. He does not claim that seeing them would have increased his fatigue only that he was substantially disadvantaged by being subjected to unfair criticism for refusing to undertake this work.

[58]In relation to paragraphs 56 and 57 above we cannot see that the criticism of him by Miss Bi and others put the claimant at a substantial disadvantage. It is entirely appropriate for them to note the difficulties they faced in their exchanges with the claimant. Had he been disciplined as a result, with no further enquiry, it would have been a different matter, but he was not. Generally speaking, we did not consider that the alleged unfair criticism of the claimant was either unjustified or a substantial disadvantage.

[59]S.27 EqA deals with victimisation. It provides that: (1) A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act.

[60]The protected act in this case is the claimant’s previous tribunal claim and this is accepted by the respondent. He lists the detriments he suffered as follows:(i) Setting unreasonable tasks/excessive workload and using his refusal to comply to set him up for a written warning for not complying with a reasonable management instruction. We find this to be speculation on his part as no action was ever taken against him.

(ii) Subjecting him to unfair formal action. This related to Miss Bi’s letter requesting the claimant to attend an absence management meeting. Given our previous findings of fact, we consider the invitation to be perfectly justified and there was no detriment to the claimant. Indeed, he was notified that he would not receive a warning despite exceeding his trigger point.

(iii) Not changing his manager in a timely manner. Again, we have already dealt with this allegation which we do not find to be substantiated. At page 17, the claimant said the delay allowed Miss Bi to continue her campaign of bullying, harassment and victimisation as a means of punishing him for his previous tribunal claim. This leads into his next detriment of:

(iv) Harassment by Miss Bi repeatedly calling him to meetings while his grievance against her and Ms Ordidge was being investigated despite his earlier refusal to attend any more meetings with her. As Miss Bi was still the claimant’s line manager, we do not find her invitations to amount to harassment (which is not a claim before the tribunal in any event) or to be because of his protected act.

(v) There was a management witch-hunt against him as a result of false claims that he was aggressive and rude and threw a letter onto Miss Bi’s desk and this was in retaliation for his previous tribunal claim and an attempt to take disciplinary action against him. We consider this to be further speculation by the claimant against whom no disciplinary action was taken. We accept that he was rude and appeared aggressive towards Miss Bi (who was also found to have acted inappropriately by Ms Beech in the grievance outcome).

(vi) Not dealing with his grievances against Miss Bi and Ms Ordidge properly. The claimant alleged that Ms Beech’s behaviour was biased and unfair only because she held a negative opinion of him due to his protected act. The claimant withdrew his allegations against Ms Beech who was consequently not called to give evidence so this element of the claim is not substantiated.

[61]Following the decision in Chief Constable of the West Yorkshire Police (which cited Nagarajan), we must decide whether the protected act was the reason for the alleged detriments in the sense that it was a material influence on the decisions. Given our findings of fact, we find no evidence that this treatment was influenced by the claimant’s previous tribunal proceedings.

[62]As to the respondent’s out of time point, it is academic to address this in detail. The allegation in respect of Mr Hickman which concerned his alleged unfair criticism of the claimant on 7 July 2017 is clearly out of time but other matters were not. For the avoidance of doubt, we do not accept Mr Feeny’s argument that the reasonable adjustments claimed by the claimant could have been expected to have been made outside the limitation period with the result that the tribunal has no jurisdiction to hear them.

[63]For the above reasons we dismiss the claims.

The Relevant Law

[64]In Gray v University of Portsmouth EAT 0242/20 the EAT made it clear that, in the context of a S.15 claim, a tribunal must demonstrate that it caried out a critical evaluation on the question of objective justification adopting the same approach as applies generally to justification in indirect discrimination claims. Eady J cited Hardy & Hansons plc v Lax

2005 ICR 1565

, CA, to the effect that a critical evaluation of the evidence is required, entailing a weighing of the needs of the employer against the discriminatory impact on the employee. Analysis and conclusions

[65]We have considered carefully the matters set out in the Final List of Issues and set out our conclusions on these as follows: Reasonable adjustments complaint

[66]We were not required to determine whether the PCP in question was in existed or had been applied. Neither did we have to determine whether there was a substantial disadvantage that arose from that PCP (subject to the one amendment we made to that matter which we refer to at paragraphs 42-43 above). What was remaining for this Tribunal as directed by the EAT to determine is firstly whether the adjustment actually made by the respondent in December 2016 would alleviate that disadvantage. This needs to be broken down into a number of constituent elements.

[67]Firstly, we have to identify the adjustment actually made by the respondent in December 2016 and this is that which was communicated to the claimant in the Hickman Letter. Our findings of fact on this matter are set out at paragraph 49.9 above. The effect of the Hickman letter was to effectively impose a hiatus on the consideration of formal action until all adjustments had been made as it is only then that the question of formal action would be considered and at this point the claimant’s sickness levels would be considered against the increased 11-day trigger point, not the 8-day trigger point.

[68]The question then is whether from December 2016 onwards that adjustment would have alleviated the disadvantage experienced by the claimant (which was being more likely to reach the Trigger Point for formal action under the AMP with risk of warnings and dismissal because his disability meant he would have more absence).

[69]As of 23 December 2016, the claimant had accumulated 22 days sickness over a rolling 12-month period. Increasing the Trigger Point to 11 days of itself (our emphasis) would not at this date have alleviated the disadvantage. The claimant was already at the increased Trigger Point. However, we have found as a fact that this was not the full extent of the adjustment made. The adjustment was made as part of a discussion under the AMP itself, and on that date a decision was made that the claimant had been notified that he would not be issued with a formal warning. The Hickman Letter went on to state that further action would only be considered once adjustments had been made if there was then further absence and measured against a higher Trigger Point. What then followed was that the actions set out in the Hickman letter took place and the OH referral was made, and a report produced (see paragraph 49.11).

[70]We were satisfied that between 23 December 2016 and 4 October 2017 the steps taken by the respondent as set out in the Hickman letter completely removed any disadvantage as the respondent did not between those dates do anything to take or even consider formal action even though the claimant was already at the new Trigger Point of 11 days. The increased Trigger Point remained at all times in place, but formal action was not considered or taken at all removing any risk of warnings or dismissal. In March 2017 when the DETP was reviewed (see paragraph 49.10), 14 of the claimant’s accumulated 22 days of absence were discounted as being disability related and the 3 day increase to the Trigger Point was kept in place. Again, no formal action was considered. At this point no OH report had been produced or recommendations made so could not have been made. Accordingly further action was not considered. As a result of the adjustment made by the Hickman letter to increase the Trigger point and put on hold the consideration of formal action until any adjustments recommended by an OH referral were put in place, the claimant was not subject to the commencement of formal action under the AMP and was not at risk of warnings and dismissal.

[71]The point that it was considered next was on 4 October 2017. At this point the claimant’s sickness levels had accumulated to 16 days absence over a rolling 12-month period. As our findings of fact at paragraph 49.12 to 49.14 between 9 October 2017 and 9 November 2017, the respondent was considering formal action against the claimant under its AMP (the claimant having reached the Trigger Point). However, no formal action was taken, and this was confirmed to the claimant in writing on 9 November 2017. From this point on again no formal action was considered or taken.

[72]What we have to determine is whether the adjustments made as a result of the Hickman Letter alleviated the disadvantage suffered by the claimant as a result of the PCP (which was that as his disability meant he would have more absence; he was more likely to reach the Trigger Point for formal action under the AMP with risk of warnings and dismissal). Over the period from December 2016 to January 2018, we concluded that it did alleviate that disadvantage. Whilst the claimant was at all times still more likely to reach the Trigger Point, this did for the majority of this period did not bring with it any associated risks of warning and dismissal. This had been put on hold pending occupational health reports and adjustments being implemented. The adjustment did not remove the disadvantage entirely over this period as the respondent did briefly consider whether formal action would be taken (having noted that the claimant again reached the Trigger Point in October 2017). However, no action was ever taken, and the claimant was again informed in writing that an up-to-date occupational health report was required. We take note of the guidance in the Romec and Noor cases above that an adjustment must be completely effective in removing a disadvantage in order to be reasonable. We are therefore satisfied objectively that the adjustment applied, alleviated the disadvantage and therefore conclude it was a reasonable adjustment for the respondent to have made. There was therefore no failure to comply with a duty to make a reasonable adjustment and this complaint is accordingly dismissed.

[73]Whilst on that basis, it would not seem necessary for us to go on to consider the remaining issues set out in the Final List of Issues (as they are premised with the words “If not” in relation to whether the adjustment alleviated disadvantage, and we have decided that it did alleviate disadvantage). Nonetheless, for completeness we have gone on to consider those remaining questions.

[74]Firstly, we have considered whether the adjustment sought by the claimant (which was that the Trigger Point for consideration of formal action should be 11 sickness absences in a rolling 12-month period beginning in December 2016 and for the “totalling” of absences to start afresh from that date - paragraph 3(a) of the EAT Judgment) would alleviate the disadvantage suffered as a result of the PCP. We conclude that it would clearly have done so. If the steps suggested by the claimant had been taken, then the claimant would have been very unlikely to have reached the Trigger Point at all and would have been at no risk of formal action.

[75]Therefore, on the basis that such an adjustment if made, would have alleviated the disadvantage, we have gone on to consider, whether it was an adjustment that it was reasonable for the respondent to have to make. On this point we entirely accept the submissions of the respondent. This would have effectively given the claimant the ability to have taken 33 days of sickness absence in a 12-month period (see paragraph 54 of the Butler Judgment). We accepted the evidence of LO that it was rare for any employee to be given a DETP of more than 10 days as that level of absence could not be supported by the respondent’s operations. He was unaware in his experience of any example of a manager choosing to disregard or discount absence as all absence had to be recorded on the HR system to enable the respondent and its HR team to have a clear record to look at what needed to be done to support the employee The claimant suggests that this was a reasonable adjustment to have made given that the respondent contributed to the level of sickness the claimant had at that point by its failure to adhere to the SRP in place and its own AMP. He suggests that had this been done, the claimant would have “in all probability” accumulated less sickness absence. There is simply no evidence before us that this was or might have been the case. The claimant also suggests that the respondent failed to apply its own precondition before considering formal action in October 2017 and that any ambiguity in the Hickman letter should have been resolved in his favour. There were clearly some issues in the way that the process was managed prior to December 2016 and the letter could perhaps have been clearer. However, we are not satisfied that this means that objectively speaking it was a reasonable adjustment to have made for the respondent to have decided to significantly increase the levels of absence it could tolerate before considering formal action. In relation to the consideration of formal action in October 2017, it is not clear whether a conditional element of the adjustment made in the Hickman Letter (namely that adjustments recommended by an occupational health report had been made before formal action would be considered) at the time when there was a brief consideration of formal action. It would appear that this may not have been the case, as the letter sent to the claimant on 9 November 2017 recommended a further occupational health report (see paragraph 49.14). However, we do not conclude that this fact makes any difference to the question of whether or not it was reasonable to have made the adjustment the claimant was seeking in December 2016.

[76]As we did not consider that this adjustment was one which was reasonable, we have gone on to consider the question posed at paragraph 1.3.3 of the Final List of Issues whether there were any other adjustments which it would have been reasonable for the respondent to make to alleviate the disadvantage. The claimant in his written submissions suggests firstly that the respondent could have awarded extra days to the Trigger Point in September 2017 as a temporary measure to ensure that the claimant was not subject to formal action and then reducing the Trigger Point back down to 11 days once the days of absence over the rolling 12-month period had dropped off again. For the same reason we set out at paragraph 74 above, such an adjustment would have alleviated the disadvantage. We have therefore gone on to determine whether that adjustment was one which was reasonable to have taken. We conclude that it was not. This is largely because the adjustment in place from the Hickman Letter meant that even if the claimant reached the Trigger Point, there was another check in place in that the adjustments recommended by the OH report should have been implemented and further absence accrued before formal action was considered. There was a brief period between 9 October 2017 and 9 November 2017 where there was at least some consideration of formal action (see paragraph 49.13 to 49.14 above), but this ceased when the claimant was notified on 9 November 2017 that no warning had been issued. However again on the basis that an adjustment does not need to be one that completely removes any disadvantage to be reasonable persuades us that taking the steps suggested by the claimant were not ones that were objectively reasonable to have taken.

[77]The claimant secondly suggests that the respondent should have treated any sickness absence between December 2016 and November 2017 as special or unpaid leave. He suggests that there is a category of leave in the respondent’s special leave procedures of disability related special leave which could have been used to record his absence. Firstly, if that step was taken, it would for the same reasons as already given have alleviated the disadvantage of the PCP. However, we were not at all satisfied that taking such action would be a step that was reasonable to take. The claimant did not direct us to any section in the respondent’s policy where this possibility is provided for. We did not see any policies addressing special leave referenced in the evidence. When LO was asked about this possibility whilst giving his evidence, he told us that he was not aware of this being a possibility. His understanding was that special leave with pay had its own set criteria and would not be used to cover a period of sickness absence. He told us that some sickness absence could be allocated as disability related under the AMP but that it was still classed as sickness absence. What the claimant appears to have been suggesting is that the respondent take a decision to incorrectly record absence as one type of leave when it was in fact another, so as to avoid the Trigger Point being reached. We conclude that this would be objectively entirely unreasonable and have provided the respondent’s managers with a skewed and inaccurate picture of the levels of absence based on in effect falsifying the claimant’s absence record or ‘masking’ the true level of absence. This cannot have been a reasonable step to take in our conclusion.

[78]The claimant thirdly suggests that the respondent should have done nothing at all to address his level of absence by way of formal action in September 2017 and waiting for the increased Trigger Point to start to have an effect on the level of absence. However, this suggestion really only relates to one part of the adjustment we have found to have actually been made by the Hickman Letter. The fact that a hiatus on taking formal action was in place pending the seeking of occupational health advice and the putting into place adjustments, meant for the vast majority of this period, the claimant was in effect not at risk of formal action at all. This was briefly considered in October 2017 but was quickly discounted when the claimant was informed, he would not be issued with a warning. Again, an adjustment does not need to completely remove the disadvantage and to have done what the claimant suggests here and to have not even looked at his levels of absence and consider what steps might be appropriate, we believe goes too far and take this step outside what was objectively reasonable to be done.

[79]For those reasons, the claim for a failure to make a reasonable adjustment is dismissed.

[80]The EAT has tasked this Tribunal with determining the questions posed which are now set out in the Final List of Issues. The first issue to determine is whether the claimant was subjected to unfavourable treatment and if so, what that was (paragraphs 37 and 39 of the EAT judgment). In his submissions the claimant refers to what he terms as “unfair criticism” and cites in Appendix 1 the examples of that criticism. We have therefore considered each of the instances to conclude whether this was unfavourable treatment based on our findings of fact above. If there were acts of unfavourable treatment, we have gone on to determine in relation to each the remaining issues set out in the Final List of Issues. These are whether any unfavourable treatment was because of(a) the claimant’s lack of flexibility and/or

(b) the claimant’s behaviour. If it was because of lack of flexibility, whether this was something arising in consequence of disability (because the reason for the lack of flexibility was a reasonable adjustment for that disability) (paragraphs 22(e) and 38 EAT Judgment). If it was because the claimant’s behaviour, we had to decide what the “behaviour” was that played an operative role in the unfavourable treatment and also determine whether that behaviour was something arising in consequence of disability, in particular was it a response to an attempted removal of an adjustment (see paragraph 38 of the EAT judgment). Lastly if required we have gone to consider whether any such unfavourable treatment because of something arising from a disability was a proportionate means of achieving a legitimate aim.

80.1 Incident on 7 July 2017 80.1.1 Was this unfavourable treatment? We refer to our findings of act at paragraph 49.16 and 49.17. We do not conclude that any act of unfavourable treatment occurred on this occasion and thus any complaint relating to this incident is dismissed on the facts.

80.2 Incident on 22 September 2017

80.2.1 Was this unfavourable treatment? Our findings of fact on this matter are at paragraphs 49.18 to 49.20. In summary on this date AH asked the claimant to carry out an appointment and the claimant informed AH he could not do this as it coincided with his break. AH then stated to the claimant: “Are you refusing to follow a reasonable management request?” Given the guidance in the Code and Williams above, we accept that this amounted to unfavourable treatment of the claimant by AH.

80.2.2 Was this because of (a) the claimant’s lack of flexibility? We conclude AH made this comment because he wanted the claimant to undertake an appointment at 10:40 and in effect move or adjust his break time to do this. Both Sheraz and the claimant had told AH that he (the claimant) could not do the NJI appointment at 10:40 as it coincided with his break. When the claimant indicated that he was not prepared to move his break to carry out the appointment, this was clearly communicating a lack of flexibility. AH records this expressly in his own account of the events (see paragraph 49.18 above). The comment then made by AH enquiring as to whether the claimant was refusing to follow a reasonable management request we conclude was because the claimant had communicated this lack of flexibility with his break. The comment was made because of the claimant’s lack of flexibility.

80.2.3 Was this lack of flexibility something arising in consequence of The respondent submits that the claimant has not called any evidence to show that this lack of flexibility was something arising from his disability. The Butler Judgment did not really address the individual incidents in question but made more general findings about criticism of the claimant by his managers, MB, in particular. Here we are looking at an earlier matter not involving MB. In any event the Butler Judgment did not address this particular question about whether lack of flexibility arose in consequence of the claimant’s disability, and this is why this Tribunal must now do so. The EAT Judgment at paragraph 38 concluded as “The Claimant relied on not being flexible as the something arising in consequence of his disability. Given the broad approach that needs to be taken to what amounts to a consequence of disability, it appears to me that where adjustments because of disability were made, once of which was that the Claimant should be less flexible, that falls to be considered as a consequence.” We refer to the Findlay Order and in particular paragraph 35 where Regional Employment Judge Findlay analyses what was set out at paragraph 38 of the EAT Judgment. We agree with the conclusions reached by Regional Employment Judge Findlay that we as a Tribunal are required to make findings and reach conclusions about whether lack of flexibility was something arising in consequence of disability rather than taking paragraph 38 as a finding that lack of flexibility was a consequence of disability. In that regard, we refer to our findings of fact made at paragraphs 49.5 about the SRP in place from May 2016 and at paragraph 49.11 about the second SRP in place from August 2017 which make it clear that taking breaks on time and challenging the allocation of work over break time was a key action plan for the claimant in reducing his stress. This was an adjustment made and recorded by the respondent as recommended by its OH advisers (see paragraph 25 to 27 of the Butler Judgment). We were therefore satisfied that this lack of flexibility around the taking of a break on time was something arising from disability as it was a result of a reasonable adjustment put in place to combat the claimant’s stress levels.

80.2.4 Was this because of the claimant’s behaviour and if so, what On the basis of the findings of fact that we have made, we were simply not able to conclude that the comment made by AH was caused by the behaviour of the claimant nor to identify what that behaviour was. AH makes no reference to ‘behaviour’ as such but really focuses on the issue of flexibility. As we have already concluded that the comment was made because of something arising in consequence of disability (namely the claimant’s lack of flexibility), it is not something that we need to do in any event and thus we have not considered this matter further. Accordingly, we are unable to conclude that any such behaviour was something arising in consequence of a disability.

80.2.5 Was this unfavourable treatment a proportionate means of In order to decide whether the respondent has ‘objectively justified’ this unfavourable treatment, we firstly considered whether the respondent had established its aim and whether it was a legitimate aim. The respondent says it had the aim of ensuring that employees complied with legitimate requests from management. We were satisfied that this was an aim pursued by the respondent. Our findings of fact at paragraph 49.18 above makes it clear that the issue of complying with reasonable requests was in the mind of AH at the time. We were also satisfied that as an aim, this was legitimate for this and any employer. We then had to go on to determine whether the unfavourable treatment was an appropriate and reasonably necessary way to achieve the aim, taking account of whether something less discriminatory have been done instead and considering how the needs of the claimant and the respondent should be balanced. Whilst it may have been appropriate for the respondent to ask the claimant if he was in a position to move his break time to deal with the appointment in question, to have then effectively admonished the claimant for failing to follow a reasonable management request we think was not reasonably necessary in that there was a less discriminatory way to achieve this aim. AH instead of addressing the question to the claimant in terms of whether his refusal was a failure to follow a reasonable management request, could have explored with the claimant why it was not possible for him to change his break times. A statement of this nature by AH escalated the nature of the discussion to one suggesting the claimant had done something inappropriate by refusing to move his break times. In fact, the SRP that had been put in place with the claimant just weeks earlier on 24 August 2017 expressly stated that breaks should be taken on time and that manager’s should support this by not asking the claimant to cover work that impacts on break time (see paragraph 49.11). Whilst the claimant may have reacted in what AH regarded as a poor manner, to have effectively suggested that his initial refusal was inappropriate without consideration of the reasons for that refusal was not reasonably necessary to ensure the aim pursued. On that basis the respondent has not shown that the unfavourable treatment was justified, and this complaint is well founded and succeeds.

80.3 Incident on 4 October 2017

80.3.1 Was this unfavourable treatment? Our findings of fact on this matter are at paragraphs 49.21 to 49.23. In summary on this date MB informed the claimant that he was “refusing a reasonable request” after an exchange between MB and the claimant about whether or not the claimant was prepared to deal with a particular customer after a scheduled break. MB did not “confront” the claimant and MB had not requested that the claimant “come off his break” to see the customer. We accept that this was unfavourable treatment for similar reasons to those set out above.

80.3.2 Was this because of (a) the claimant’s lack of flexibility? On the basis of our findings of fact at paragraphs 49.21 to 49.23, we were not satisfied that MB made this comment about the claimant because of the claimant’s lack of flexibility. This is a different scenario to the one involving AH on 22 September 2017 as the issue that led to MB making this comment was not about the claimant taking his break at the allocated time at all. We conclude that MB made this comment to the claimant about his refusal to deal with a particular client in his “silver signing slot” which was due to take place after this break. We did not accept that the claimant was asked to return early from his break. We have considered a point made in the claimant’s submissions that in refusing this appointment he was “on infrequent occasions declining additional work” and this was point was an example of him declining work not scheduled for him and thus was related to lack of flexibility (and arising from disability given that there was reference to the claimant challenge inappropriate bookings on his SRP (see paragraph 49.11 above). However, on balance we do not consider that the comment made by MB was made because of a lack of flexibility at all but rather the manner in which the claimant refused the request and his behaviour whilst doing so (see our conclusions in the next paragraph). We do not accept that any purported lack of flexibility “operating on the mind of the decision maker to a significant extent” (see Grosset and Nagarajan above). Therefore, given we did not find the unfavourable treatment being because of lack of flexibility, we did not need to consider the next question whether any such lack of flexibility was something arising in consequence of disability.

80.3.3 Was this because of the claimant’s behaviour and if so, what As directed, we have also considered whether this unfavourable treatment was caused by the claimant’s behaviour and if so, what that behaviour was. We refer to our findings of fact at paragraphs 49.22 to 49.33 above and conclude that the comment made by MB was at the end of an exchange with the claimant where he made it clear to her that he was not prepared to see the client she had asked him to see. We were satisfied that MB had in measured fashion asked the claimant whether he could deal with the client that day explaining the importance of acting as a team. It was at this point that the claimant escalated the situation in an aggressive manner and made the comments about being the office rubbish bin and having worked dumped on him. We find that it was the manner in which the claimant had behaved during this exchange (aggressively refusing to take on work that he had been asked by MB to do) that caused MB to make this statement. Therefore, this treatment was because of the claimant’s behaviour.

80.3.4 Was this behaviour something arising in consequence of disability, in particular was it a response to an attempted removal of an adjustment? (see paragraph 38 of the EAT judgment). We have then gone on to consider whether the claimant’s behaving in this manner was something arising in consequence of his disability. The claimant contends that the Butler Judgment at paragraph 16 (and the EAT judgment at paragraph 14 acknowledged that the claimant became stressed as a result of his disability). He suggests that stress has psychological symptoms and therefore “any alleged behaviour” was logically connected to his disability. However, his primary submission is that there was no bad behaviour by him at all (as these were all lies made up by managers). We had no evidence from the claimant to suggest that the way he behaved on this occasion was something arising in consequence of his disability. The suggestion is in effect that his response on that day was because he perceived that the respondent was attempting to remove a reasonable adjustment, and this was sufficient to connect any behaviour with the disability. We were not satisfied that this was the case and could not conclude that being asked to carry out an interview with a client allocated by a colleague in a slot already scheduled to take place after a break was an attempt to remove an adjustment. The claimant’s SRP suggested that he should challenge inappropriate bookings, but we were not satisfied that the claimant had shown that there was anything inappropriate about being asked to do this particular piece of work. We rather conclude that this behaviour was an example of the claimant being unwilling to do what he had been reasonably asked to do by MB and as highlighted by the Butler Tribunal at paragraph 36 an example of the claimant “being a difficult person to engage with and his behaviour was prompted by others disagreeing with him as much as him believing he was having worked dumped on him”. On that basis we did not find that this instance of unfavourable treatment was because of something arising in consequence of the claimant’s disability. We did not need to go on to consider whether it was a proportionate means of achieving a legitimate aim (although we would have concluded that this was the case). This complaint is not well founded and is dismissed.

80.4 Emails from HR to MB on 5, 23 and 26 October 2017

80.4.1 Was this unfavourable treatment? Our findings of fact on the content of these e mails which the claimant complains about are at paragraphs 49.24 to 49.25. In essence during the three e mails in question, the HR officer that wrote them recorded what they were told about the claimant by MB. The complaint really appears to be that what MB said to HR which then led to the comments being made was incorrect and inaccurately described the claimant’s behaviour as being a conduct matter. Even taking a very generous interpretation of what is meant by unfavourable treatment, we are simply not able to see how an exchange between MB and HR advisers (to which the claimant was not a party to) could really be unfavourable treatment of the claimant. Criticisms were not directed to him at all, but the e mails were sent for the purpose of advising MB on what steps she may wish to take. We are bound by the findings of the Butler Tribunal which did address this matter and concluded that the comments were “reasonably accurate” and that MB’s actions in seeking advice were “entirely appropriate”. We do not conclude or find that the contents of any of these e mails amount to unfavourable treatment of the claimant by anyone. Nonetheless, if we are incorrect on this matter, we have gone on to consider whether this was because of something arising in consequence of disability or was a proportionate means of achieving a legitimate aim.

80.4.2 Was this because of (a) the claimant’s lack of flexibility? The only possible comment made in the e mail exchange between MB and the respondent’s HR case workers that appears to have any connection with any lack of flexibility on the claimant’s part is that which is recorded in an e mail of 23 October 2017 (see paragraph 49.24) which references the claimant being flexible with break timings (which may although we cannot be sure of this be a reference to the incident on 22 September 2017 involving AH (see paragraphs 49.18 to 49.20). As we are directed by Hall above that any connection between the unfavourable treatment and the matter said to arise from disability, this is just sufficient for us to conclude that this comment alone was made because of the claimant’s lack of flexibility.

80.4.3 Was this lack of flexibility something arising in consequence of Given our conclusions at paragraph 80.2.3 above, as this e mail relates in our view to the same incident, we would also conclude that the reference to this lack of flexibility around the taking of a break on time was something arising from disability as it was a result of a reasonable adjustment put in place to combat the claimant’s stress levels.

80.4.4 Was this because of the claimant’s behaviour and if so, what We were satisfied that the comments made in the e mail exchange were because of the claimant’s behaviour. The behaviour referenced was failing to carry out reasonable management instructions, rudeness and refusal to sign a client. It was precisely the fact that MB had concerns about such behaviour that led her to seek HR advice on how to deal with the situation. The e mails make reference to the claimant’s behaviour (see paragraph 49.24).

80.4.5 Was such behaviour something arising in consequence of It is difficult to address the issue of whether the behaviour referenced in such e mails was something arising in consequence of the disability as there is no precise description of what the behaviour is. In order to determine this, we looked at the dates of such e mails to identify the incidents that they related to. The first e mail sent on 5 October 2017; we were satisfied related to the incident on 4 October 2017 involving MB (see paragraphs 49.21 to 49.23). For the same reasons we set out at paragraph 80.3.4, we conclude that this behaviour was not something arising in consequence of disability. The e mails sent on 23 and 26 October 2017 were in relation to the refusal of the claimant to attend meetings with MB. We were not satisfied that the claimant has in any way shown that his behaviour in refusing to engage with MB was something arising in consequence of his disability for the same reasons we set out in paragraph 80.3.4 above.

80.4.6 Was this unfavourable treatment a proportionate means of The single comment in the mail relating to flexibility about breaks which we found was unfavourable treatment because of something arising in consequence of disability, we conclude was justified as being a proportionate means of achieving a legitimate aim. For the same reasons as set out in paragraph 80.2.5 above, the aim is established and was a legitimate aim. We were also content that the treatment here was an appropriate and reasonably necessary way to achieve the aim, taking account of whether something less discriminatory have been done instead and considering how the needs of the claimant and the respondent should be balanced. We again refer to the findings of the Butler Tribunal that the comments were “reasonably accurate” and that MB’s actions in seeking advice were “entirely appropriate”. We concur with this and find that MB seeking advice about how to effectively manage the claimant was sensible and desirable and any impact on the claimant in subsequently becoming aware of what was written in such e mails was heavily outweighed by the benefit of trying to seek advice on how to approach the situation of managing the claimant fairly and appropriately. It is difficult to criticise what MB did in seeking advice at each stage before action was taken and we find this was necessary and appropriate to the aim. For all these reasons, this complaint is not well founded and is dismissed.

80.5 Incident on 30 October 2017 and e mail on 1 November 2017

80.5.1 Was this unfavourable treatment? We refer to our findings of fact at paragraphs 49.26 - 49.27 above. The claimant was asked to carry out work by MB on 30 October 2017 and the claimant refused to do this work. Following the incident MB e mailed the claimant inviting him to a meeting to discuss what took place. Given the guidance in the Code above, and the claimant’s expressed objection to being sent the e mail in his response, we are satisfied that on balance sending an e mail inviting to the claimant meets the relatively low threshold for amounting to unfavourable treatment.

80.5.2 Was this because of (a) the claimant’s lack of flexibility? The e mail inviting the claimant to a meeting was prompted by the claimant refusing to see customers because (in MB’s view), those customers had work coaches who were not part of the claimant’s team. The claimant in his submissions refers to this being an example of MB trying to “dump customers on the claimant that had not been booked for him”. We were satisfied therefore that it was the claimant’s refusal to carry out work that was not originally assigned to him and his team that led to the request for a meeting. On this occasion we accepted the general submission of the claimant that in refusing to deal with these additional 5 customers was an example of him “on infrequent occasions declining additional work” and was him turning down a request to do work not scheduled for him and thus was related to a lack of flexibility in relation to work type.

80.5.3 Was this lack of flexibility something arising in consequence of We were also satisfied that this lack of flexibility was something arising from disability given that there was reference to the claimant having the ability to challenge inappropriate bookings on his SRP (see paragraph 49.11 above). Whether or not it was inappropriate work is not something we need or are able to reach a conclusion on to decide this complaint, but conclude that this was an incident where the claimant was taking a step he perceived to be action he should take as a permitted adjustment to take account of his disability, namely challenging inappropriate bookings. This action led to the request for a meeting from MB and thus we were satisfied that on this occasion, this was something arising in consequence of disability.

80.5.4 Was this because of the claimant’s behaviour and if so, what We conclude on this occasion that it was not the claimant’s behaviour at all that played a part in the treatment complained about. We considered again what was “operating on the mind of the decision maker to a significant extent” (see Grosset and Nagarajan above). Here the contemporaneous e mail from MB explained what triggered MB’s request for a meeting which was the claimant refusing to see customers because their work coaches were not part of his team (see paragraph 49.27). There was no mention of behaviour in this e mail, but it was rather the reason for the refusal which MB wanted to discuss with the claimant. Therefore, we do not conclude that any behaviour played an operative role in treating the claimant why MB did on this occasion.

80.5.5 Was this unfavourable treatment a proportionate means of In order to decide whether the respondent has ‘objectively justified’ this unfavourable treatment, we firstly considered whether the respondent had established its aim and whether it was a legitimate aim. For the same reasons as set out at paragraph 80.2.5 above, we conclude that the respondent has established that it had the aim of ensuring that employees complied with legitimate requests from management and that this was a legitimate aim. We then had to go on to determine whether the unfavourable treatment was an appropriate and reasonably necessary way to achieve the aim, taking account of whether something less discriminatory have been done instead and considering how the needs of the claimant and the respondent should be balanced. This very measured e mail was entirely different in nature to the matter we address in relation to AH’s comments at paragraph 80.2.5 above. It is abundantly clear that the purpose of the meeting sought by MB was to discuss the claimant’s refusal of work on 30 October 2017 and his reasons for this (see paragraph 49.27 above) This request for a meeting was appropriate to the aim of ensuring that employees complied with legitimate requests from management as having such a meeting gave the claimant the opportunity to discuss why he felt that the request made was not legitimate or reasonable. This was precisely the opportunity for the claimant to have had such discussions with MB (in fact he chose not to do so). In considering whether making this request for a meeting was reasonably necessary, we have considered whether something less discriminatory could have been done instead and conclude that what was done was entirely appropriate and reasonable (and perhaps what should have been done in relation to the AH comment we discuss at paragraph 80.2.5 above). There was no admonishment or unfair criticism here, just a request for a meeting to discuss what had happened and why the claimant did what he did. We have balanced the impact of this upon the claimant against the needs of the respondent and conclude that this was proportionate. We conclude that this was appropriate and reasonably necessary of achieving the aim as it was an attempt to seek input from the claimant about what his reasons for refusing requests to work were. On that basis the treatment was a proportionate means of achieving a legitimate aim within the meaning of section 15 (1) (b) EQA and thus the complaint under section 15 EQA is not well founded and is dismissed.

80.6 E mail of 15 November 2017 re blocking out the diary80.6.1 Was this unfavourable treatment? We refer to our findings at paragraph 49.29 above and for the same reasons as already mentioned in relation to other acts relied upon, we were satisfied that the statement of MB in this e mail that the claimant’s actions in blocking his diary without discussing and agreeing this with his line manager were “unacceptable” did amount to unfavourable treatment.

80.6.2 Was that treatment because of the claimant’s lack of flexibility? We were not satisfied that the reason the claimant was sent this e mail by MB was because of any lack of flexibility. We accept that the issue in MB’s mind at the point of sending the e mail was that the claimant had blocked out his diary without discussing this or seeking agreement in advance with his line manager. This is not about any lack of flexibility at all. She was of the view that the blocking out of the diary itself was something that would be a “perfectly acceptable practice” if it had been cleared in advance (see paragraph 49.30). Her e mail was not prompted by any lack of flexibility but the fact that the claimant did not discuss and agree this approach with her or another line manager in advance. As we have concluded that the treatment was not because of lack of flexibility, we do not need to go on to consider whether any lack of flexibility was something arising in consequence of disability (because the reason for the lack of flexibility was a reasonable adjustment for that disability).

80.6.3 Was this because of the claimant’s behaviour and if so, what We conclude that it was the claimant’s behaviour that caused MB to write this e mail on 15 November 2017 and this is primarily because MB gave unchallenged evidence that this was the reason she wrote to the claimant on this day (see findings of fact at paragraph 49.29 which expressly referred to the claimant’s behaviour being unacceptable). We have gone on to consider what behaviour it was that was being referred to here and conclude that it was clearly the claimant blocking out his diary without discussion or agreement with line management. This is what the e mail expressly states, and we concur with the findings of the Butler Tribunal that it was not the blocking out of the diary itself that was the issue but the fact that the claimant did this without discussion or advance agreement. The submission of the claimant that he in effect had such agreement by virtue of the adjustments in place is not convincing at all.

80.6.4 Was such behaviour something arising in consequence of We have gone on to consider whether the claimant blocking out his diary without discussing or agreement this in advance with his line manager was something arising in consequence of disability. As directed, we have in particular considered whether this behaviour was it a response to an attempted removal of an adjustment (see paragraph 38 of the EAT judgment). The claimant suggests he did not require further permission to block his diary out and MB was by objecting to him doing this was flouting the advice given by OH in August 2017 that the respondent should monitor workload to avoid uneven, unexpected or excessive demands. He further suggests that MB should in fact have blocked the claimant’s diary herself to comply with this recommendation. We were not persuaded by these submissions as ultimately; we find it was the lack of discussion and prior agreement that was the problem here that MB was reacting to. That is abundantly clear from the e mail sent which goes on to make reference to a reduced working diary being a possibility for the claimant. There was no suggestion that any adjustment was being removed but rather the claimant was being reminded that he was required to discuss and agree practical steps with his line manager, rather than unilaterally taking steps which might impact the respondent’s ability to deliver its services to clients. This behaviour was not something arising in consequence of disability and as such the complaint goes no further.

80.6.5 Was this unfavourable treatment a proportionate means of As we have concluded that the respondent did not treat the claimant unfavourably because of something arising in consequence of his disability, we do not need to go on to consider whether any such treatment was a proportionate means of achieving a legitimate aim. However, we would note that the findings of the Butler Tribunal at paragraph 37 (see findings of fact at paragraph 49.30 above) were not interfered with (as noted by the Findlay Order at paragraph 32). It would seem likely that given such findings that any criticism of the claimant was “entirely justified”, we would have concluded that any treatment was a proportionate means of achieving a legitimate aim in any event (for the same reasons we set out at paragraph 80.5.5 above).

[81]Given that the claimant has succeeded in one of his complaints of unfavourable treatment because of something arising in consequence of disability (section 15 EQA), the matter will now be listed for a hearing to determine remedy on this matter before the same Tribunal. The parties will be notified of the date of this hearing and case management orders will be made to prepare for such hearing in due course.