Mr B Hyatt v The Secretary of State for Justice: 1303028/2024

EMPLOYMENT TRIBUNALS

Case No 1303028/2024

Between

Mr B HyattClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Faulkner

Date 7 April 2026

JUDGMENT

[1]The following complaints were dismissed on withdrawal: 1.1. The complaint that the Respondent discriminated against the Claimant because of something arising in consequence of disability by not permitting him to appeal against a written warning. 1.2. The complaint that the Respondent harassed the Claimant by not allowing him to appeal against the written warning out of time. 1.3. The complaint that the Respondent victimised the Claimant on 14 September 2023 by Jamie-Ann Edwards saying to him at a disciplinary hearing, “no matter what, this is getting wrapped up today”, and being dismissive of him.

[2]The Respondent did not contravene section 39 of the Equality Act 2010 by discriminating against the Claimant because of something arising in consequence of disability by: 2.1. Issuing him with a written warning on 19 September 2023. 2.2. Moving him to an alternative department in September 2023. 2.3. Not permitting him to raise a grievance in December 2023. 2.4. Refusing to reconsider that decision.

[3]The Respondent did not contravene section 39 of the Equality Act 2010 by indirectly discriminating against the Claimant in the application of either of the following PCPs: 3.1. The requirement or expectation to complete a certain amount of work in contractual hours. 3.2. The requirement to appeal a disciplinary outcome within 5 working days of the date of the outcome.

[4]The Respondent did not contravene section 39 of the Equality Act 2010 by failing to make reasonable adjustments in relation to the first PCP above.

[5]The Respondent did not contravene section 39 of the Equality Act 2010 by victimising the Claimant in relation to any of the following: 5.1. Refusing to hear his grievance on 27 December 2023. 5.2. Confirming on 27 December 2023 that he was not permitted to appeal the final written warning out of time. 5.3. Not responding to the letter sent by the Claimant’s solicitor on 17 January 2024. 5.4. On 22 May 2024, not providing certain documents in response to the Claimant’s subject access request.

[6]The Respondent did not contravene section 40 of the Equality Act 2010 by harassing the Claimant as follows: 6.1. Removing reasonable adjustments in 2018. 6.2. The Claimant being degraded by continually asking Joseph Clark (from 2018) and investigating officers (from 2021 to September 2023) for adjustments, without success. 6.3. Conducting three investigations into the same disciplinary allegation with the Claimant repeatedly explaining the impact of his dyslexia and how this contributed to the words he used in an email dated 6 September 2021. 6.4. Saying to the Claimant in an investigation meeting in March 2023, “if you can prove it, Basil” when the Claimant was explaining that it was his dyslexia and difficulty in explaining himself to others in words that led to the 6 September 2021 email. 6.5. Andy Wade rolling his eyes at the Claimant when the Claimant said he had dyslexia and that this caused him to write the email on 6 September 2021. 6.6. Jamie-Ann Edwards being generally rude and dismissive towards the Claimant’s dyslexia in the disciplinary meeting on 7 and 14 September 2023 and making the Claimant feel as though he was putting it on or using it as an excuse. 6.7. Moving the Claimant out of his department and changing his job role. 6.8. Not allowing the Claimant to raise a formal grievance in December 2023. 6.9. Not allowing the Claimant an opportunity to appeal that decision. 6.10. Ignoring the Claimant’s request for reconsideration of that decision. 6.11. Ignoring the Claimant’s solicitors’ letter dated 17 January 2024.

[7]All of the Claimant’s complaints were dismissed accordingly. Written reasons having been requested by the Claimant at the conclusion of the Hearing, in accordance with rule 60(4) of The Employment Tribunal Procedure Rules 2024, the following reasons are provided.

REASONS

[1]This case concerns the Claimant’s allegation that the Respondent failed to make reasonable adjustments to his workload from 2018 onwards and then discriminated against him in various ways in the course of multiple internal processes which followed a colleague’s complaint regarding his conduct.

Hearing

[2]The parties agreed a bundle of 793 pages. Page references below relate to that bundle. From that bundle, we read before hearing evidence: the pleadings, case management orders, the Claimant’s disability impact statement, one witness statement (see below) and related documents, plus various other documents identified by Mr McHugh on Day 1. We made clear that otherwise we would read only what we were taken to in oral evidence.

[3]We read statements of and heard oral evidence from the Claimant, his colleague Lionel Walker who is a Probation Services Officer, and for the Respondent, Joseph Clark (Senior Probation Officer and Enforcement Manager), Andrew Wade (Head of Service for the Warwickshire Probation Delivery Unit), Jamie-Ann Edwards (Regional Probation Director, West Midlands), Majella Murphy (Deputy Head), Neil Appleby (at the relevant time, Interim Head of the Coventry Probation Delivery Unit) and Helen Sidhu (Head of Corporate Services for the West Midlands Probation Service). Ms Sidhu’s statement was in the bundle at pages 199 to 200 and concerned the Respondent’s compliance with disclosure orders. Alphanumeric references below are references to the Respondent’s statements, for example JC5 is paragraph 5 of Mr Clark’s statement. The Claimant’s statement was not paragraph-numbered.

[4]As Mr McHugh pointed out, the Claimant’s witness statement did not deal with all of his complaints. Particularly given his status as a litigant-in-person, we made clear that we would deem the Particulars of Claim, and the parties’ agreed list of issues, to also represent the case the Claimant was advancing. It was a matter for Mr McHugh what to put to the Claimant in cross-examination and what parts of the case he wished to submit, if any, had not been put. As it transpired, he did not make any submissions of note to that effect.

[5]The Claimant did not request any adjustments to the usual hearing process in advance of the Hearing. At the end of our initial discussion on Day 1 however, he asked in passing whether he could have Mr McHugh’s questions in advance, saying that he may otherwise need time to think about his answers. We made clear that he could be given the reasonable time he needed to consider any questions and he indicated that he was content to proceed on that basis. We record that there was no medical evidence before us in support of any such adjustment, though there was evidence (see below) that he may struggle to process information. We record too that Mr McHugh’s questioning was careful and clear, and that having only raised this on Day 1 of the Hearing, the Claimant could not in any event have received the questions very far in advance of the commencement of cross-examination even if this had been permitted, noting the demanding timetable for getting the Hearing completed. Finally, it was abundantly clear to us that the Claimant was able to understand all of the questions that were put to him, whether by Mr McHugh or by us. He was assisted throughout, except of course when giving oral evidence, by Mrs Hyatt.

[6]On Day 1, we explained to all witnesses present that if they were giving evidence when we reached a break, we would provide the standard warning not to discuss their evidence with anyone during it. At the end of Day 1, when giving this warning to the Claimant, we explained that he could discuss with his wife the specific matters we had asked him to think about further from our discussion of the agreed list of issues, including whether to withdraw certain complaints, but nothing further. The standard warning was given again at the end of Day 2.

[7]At the beginning of Day 3, the Claimant volunteered that he had discussed with Mrs Hyatt overnight the single issue of his answer to a question about a crucial email (which is at page 250 – see below). When we asked if anything else had been discussed, he said it had not, but within a couple of minutes it became apparent that they had in fact discussed the whole of his evidence. After taking instructions, Mr McHugh did not make any application in this regard, our having indicated that we believed a fair trial was still possible, which turned out to be the case. We made clear however that unless there was a very good reason to the contrary, we would not accept any changes to the evidence the Claimant gave on Day 2 nor any crossexamination of the Respondent’s witnesses premised on a case that departed from that evidence. It was only fair to also point out to the Claimant that the way in which this issue emerged was likely to give rise to issues regarding his credibility – see further below. The Employment Judge also discussed the matter with the Regional Employment Judge, who was content with the steps we had taken.

[8]We should finally record a discussion on Day 4. The Claimant told us after questioning Mr Clark that he had not received the Respondent’s witness statements until 17 February 2026, then later told us he did not get them until 20 February 2026, that is the working day before this Hearing began. Having explained the options available to him, including applying to adjourn the Hearing or for the statements to be disallowed, none of which he wished to pursue, we were shown later that afternoon an email exchange which clearly showed him acknowledging receipt of the statements form the Respondent’s solicitors on 23 January 2026. Mrs Hyatt said in submissions that this was a misunderstanding about the documents they had received.

Issues

[9]The parties agreed a long list of issues though it still required a detailed discussion on the morning of Day 1 as it was incomplete or defective in a number of ways.

[10]The Claimant withdrew the following complaints on Days 1 and 2 and was content, after we explained the consequences, for them to be dismissed: 10.1. The complaint that was originally at paragraph 11.3 of the parties’ agreed list. 10.2. The complaint that was originally at paragraph 25.8 of that list. 10.3. The complaint that was originally at paragraph 32.5 of that list.

[11]The final list of the matters for us to determine (referred to below as the “List of Issues”) is attached as an Appendix. It has some formatting issues which I have not been able to correct, but reflects what the parties had agreed, amended in line with our discussions with them and excluding issues related to remedy.

Facts

[12]In finding facts, we focused on those matters which seemed to us of most importance, though our not mentioning below something the parties raised with us does not mean that we did not have it in mind. Our findings of fact were based on the above evidence, and where there was a dispute between the parties, we resolved it on the balance of probabilities. As Mrs Hyatt correctly submitted, we did not decide the case based on witness recollection alone but also taking into account contemporaneous documents.

[13]That said, and whilst we resolved each conflict of evidence on its merits, what is set out at paragraphs 6 to 8 above undoubtedly called into question the reliability of the Claimant’s evidence generally, notwithstanding the pressure most witnesses experience when giving evidence and even when giving proper consideration to the Claimant’s dyslexia. We did not think that either of those matters properly accounted for the answers he gave to the Tribunal’s questions regarding the witness warning or the date on which he received the Respondent’s statements. By contrast we found each of the Respondent’s witnesses to be reliable, doing their best to recall what took place and acknowledging where some of the details of what the Respondent did might have been done better.

Background

[14]The Claimant has been employed in the West Midlands Probation Service in Wolverhampton as a Probation Service Officer (“PSO”) from 1 May 2000. Until 2018 he was working in the Courts, but was then moved to what is known as the Enforcement Hub. His role there was to analyse reports about offenders who had failed to comply with court orders and ensure sufficient evidence was in place when those matters were referred to magistrates. Disabilities Dyslexia

[15]The Claimant’s impact statement dated 24 July 2024 (pages 71 to 79) said as follows in relation to dyslexia, which it is necessary for us to recount given the disputes about what arose in consequence of this disability: 15.1. He was diagnosed in around 2013. 15.2. It affects his reading, writing, and spelling ability, short-term memory and organisational skills. He gave the examples of reading menus, following recipes and navigating with maps. 15.3. He has difficulty reading signs and instructions, filling out forms and writing emails, requiring extra time and effort for all reading and writing tasks and frequently using assistive technology. 15.4. He reads at a significantly slower pace than others, affecting comprehension and retention of information. His verbal communication also takes longer in terms of processing information and articulating himself. 15.5. “Writing tasks are challenging; I make frequent spelling and grammatical errors and often need to re-read and edit my work multiple times”. He puts off reading and writing tasks where possible. 15.6. Missing or misunderstanding information affects his social relationships. 15.7. He regularly requires repetition and clarification. 15.8. He has difficulty following verbal instructions in meetings, often needing written follow up or clarification. 15.9. He finds it hard to organise tasks and manage time, which impacts his ability to meet deadlines. 15.10. The symptoms of dyslexia are worse when he is under more stress. 15.11. Errors occur in written work notwithstanding the use of spell checkers and proofreading tools.

[16]The Claimant had a dyslexia assessment in 2013 (pages 686 to 689). We noted that it said the following: 16.1. His vocabulary standard score was better than 81% of the norm group. His difficulties were not due to a lack of intellectual ability. 16.2. The Claimant’s comprehension and reading accuracy was aged 14 years and 4 months. 16.3. “Visual discrimination” took him significantly longer than one might expect and he was unable to identify any mistakes. Visual discrimination refers to the ability to perceive words accurately by noting likenesses and differences between them. 16.4. He had mild difficulties with verbal fluency. 16.5. There were issues with processing speed, auditory processing and discrimination and sequencing which would impact on his organisational skills, fluidity of written work and the time it takes to complete tasks. Depression, anxiety and stress

[17]With regard to depression, anxiety and stress, the Claimant’s impact statement said: 17.1. He has suffered from depression, anxiety and stress since 2018, triggered after the Respondent moved him to the Enforcement Hub. 17.2. He first saw his GP in May 2022, before then managing his symptoms with alcohol. 17.3. The severity of the symptoms has varied, but they have been consistently bad since 2020/21. 17.4. He has persistent sadness and loss of interest in activities – he told us he stopped cycling, attending to his marine fishtank and watching his grandson play football. 17.5. He puts off activities such as cleaning, cooking and looking after himself (which he amplified in oral evidence saying he would stay in bed when off work). 17.6. He struggles to sleep, stay asleep and get up. 17.7. The impairments have affected relationships, causing him to withdraw socially from 2019 onwards, though he says he did not socialise a great deal before then. 17.8. Grocery shopping, attending appointments and maintaining personal hygiene can be overwhelming. 17.9. He struggles to remember and understand. 17.10. At the time of the statement, he was struggling to attend work. 17.11. He has sought therapy (he told us he had three counselling sessions) and has taken medication.

[18]An Occupational Health (“OH”) report of 18 July 2022 (pages 333 to 335) addressed the Claimant’s work-related stress. It declared him fit for work and said that the adviser did not believe the Claimant was a disabled person because the stress had not lasted for at least 12 months. A further OH report of 12 April 2023 (pages 408 to 409) addressed stress, anxiety and depression. It said the Claimant had started taking anti-depressants on 23 March 2023 and that an assessment had revealed he was experiencing severe anxiety and low mood. The Claimant reported “low motivation, low mood, having difficulty sleeping, feeling low in energy, having a lack of confidence, poor focus, forgetfulness, anxiety and worry”. Although unfit for work in any capacity, again OH did not think the effects had lasted sufficiently long to constitute a disability.

[19]The Claimant says the Respondent had knowledge of the disabilities of anxiety and depression and stress from 2018/19, whilst, as reflected in the List of Issues, the Respondent says it only had knowledge that stress was a disability from July 2022 and depression and anxiety from March 2023. Workloads and adjustments

[20]Whilst working in the Courts, the Claimant had a number of adjustments, namely a rise and fall desk, a special chair and software for dyslexia (see the Access to Work assessment dated 2 October 2013 at pages 212 to 219). It is agreed that he retained all of that assistance on moving to the Enforcement Hub.

[21]When the Claimant first moved to the Hub, the only area being covered was the Black Country and so, in Mr Clark’s view, they were not busy. The core component of the work was to review files to check that evidence of Court Order breaches was properly compiled before they were passed for listing before magistrates. No PSO was allocated a specific number of files to pick up per day; they just divided them between them. When other areas were taken on in April or May 2020, it was agreed that each PSO would work on a particular area, the Claimant retaining the work for the Black Country. This coincided with the first Covid lockdown, a reduction in Court sittings and so a reduced workload. Birmingham was taken on as an additional area in mid-2020 and was not allocated to anyone specifically; sometimes staff picked up the work themselves, sometimes Mr Clark allocated it to them.

[22]Mr Clark says at JC15 that the Respondent’s resourcing model indicated that PSOs would complete reviews of 14 to 15 cases per day (based on 30 minutes per case), but that he advised the Team that 10 should be considered the maximum as some cases take longer than others and typically it would be 6 to 8. The model was thus a resourcing guideline, not a target. We accepted his evidence both as to what was expected and what was communicated to the Team, as not only was his evidence unchallenged, as already indicated we found him to be a completely straightforward witness.

[23]It can be seen from the email from his former manager Penny McCutcheon dated 2 December 2024 (pages 608 to 609) that whilst in the Courts the Claimant was granted a 20% reduction in the written reports he was required to complete (from September 2016), as well as having regular line management and informal supervision and regular gatekeeping and feedback on his work. Although the Claimant told us that he was managing his workload in the Hub satisfactorily until they took on the Birmingham area (at which point he sought a reduced workload), Mr Clark recalls the Claimant asking for a reduced workload in 2018 and periodically thereafter, particularly from 2021, although he could not recall specifically why. The Claimant says he made the request as he was struggling to complete his work in normal working hours due to dyslexia. He says: 23.1. Mr Clark refused to believe that he had dyslexia. 23.2. He started to stay late to complete work. 23.3. Mr Clark then challenged him about accrual of time off in lieu (“TOIL”). 23.4. Thereafter he continued to stay late but stopped recording his hours. For his part, Mr Clark says that his response to the Claimant’s request was to advise that any adjustment to workload would first require medical input (JC6). The Claimant’s version of events is that Mr Clark said to him, “Where’s your evidence [that is, of dyslexia]?”. We will come back to that shortly.

[24]Because the 20% reduction in report writing was not carried over into the Hub, the Claimant asserts that Mr Clark removed previously agreed adjustments, and that this was harassment related to all of his disabilities. The emails at page 236 show that in January 2019 Mr Clark wrote to the Claimant, “if you recall some months ago, we discussed given the time since your last dyslexia assessment, whether we should request an updated assessment to confirm you were still utilising the most appropriate resources to assist you”. Mr Clark told us that his approach to the Claimant’s request for a reduced workload was thus effectively in two stages, first to see if there was new software which might provide more effective assistance to the Claimant and then, if not, to make a further referral to OH. He told us he did not want to assume a dyslexic person would require a reduced workload, not least as there was another person in the Team with dyslexia who did not.

[25]The Claimant told us that the discussion “some months ago” referred to by Mr Clark in this email did not take place. His reply to the email did not say that or question it, although in oral evidence he told us that Mr Clark is capable of doing anything, insinuating that Mr Clark had made this up, whilst later telling us he had no issues with Mr Clark at all. We were in no doubt that the discussion a few months before January 2019 did take place as Mr Clark recorded; he had no reason to record something he knew was untrue and it is significant that the Claimant did not reply asking him what discussion he was referring to. We also concluded that Mr Clark did not say, “Where’s your evidence [that is, for dyslexia]?”. Far more likely is that what he said verbally reflected what the January 2019 email shows.

[26]The Claimant reluctantly accepted Mr McHugh’s suggestion that it was reasonable for Mr Clark to want an OH referral in order to consider a workload reduction. Mr Clark was unaware of the 20% reduction in report writing the Claimant had been given in his previous role, but told us that would not have translated across to the work in the Hub anyway as there was no report writing involved in that role. That is clearly correct.

[27]The Claimant replied to Mr Clark’s January 2019 email, “I don’t wish to proceed with any assessment at this time. I’ll give my reason in supervision in due course” (page 236). Even though in submissions he said he was happy to undergo another OH assessment, in evidence he could not tell us why he did not ask for one. He did not explain to Mr Clark why he did not want an assessment at that point, either in the subsequent supervision or otherwise. All he said to us was that he had not been able to take a call about an OH appointment on that particular occasion in a private place. We noted the Claimant’s submission that the Respondent should have instigated an OH report in any event after these discussions, but the evidence clearly supported Mr Clark’s case that whenever the Claimant raised the question of a reduced workload again, a referral to OH is precisely what Mr Clark suggested.

[28]Mr Clark says at JC11 that it was in 2020/21 that he became aware the Claimant was working late, and that when he discussed this with him the Claimant told him (JC12) that working later helped him complete his tasks. Mr Clark says he advised the Claimant that any unfinished work could be carried over to the next day and that he was not expected to work into the evening. Indeed, Mr Clark told us he regularly directed the Team to leave work that was uncompleted at the end of a day so that, if a backlog built up, he could make a case for additional resource. The Claimant told us Mr Clark had said he should be completing his work in the required time and that he had mentioned this to a colleague called Diane Baugh at an attendance review meeting on 4 July 2022. There is no mention of the Claimant saying this in the note of that meeting (page 331). We thus concluded that he did not relay this to Ms Baugh and we thought it equally unlikely therefore that Mr Clark made this comment.

[29]The Claimant accepted in evidence that he did not have specific targets, was not told he had to complete a certain number of tasks each day, was not told he was not working hard enough, and was not given any negative reviews of his performance. He nevertheless said that working to meet Court deadlines took him longer than it took his colleagues and so he had to work late, because if the work was left there would be a backlog, though Mr Clark told us that if cases were carried over, he considered whether work needed reallocating. The Claimant was specifically referring here to the second main feature of the PSO role, which involved checking a list of breaches of Court orders for around 25 cases (each case file having 5 or 6 pages) twice a month for submission to magistrates on the Friday of those weeks, although he did say that all of his work required him to stay late to get it done. Mr Clark said it was more like 15 cases for Court originally, increasing to 25 when court sittings became fortnightly from some time in 2019, and that the Claimant would not have needed to check the files that he had previously checked himself. Again, we accepted Mr Clark’s unchallenged evidence in this respect

[30]In the meeting with Ms Baugh, the Claimant said that he “felt some reluctance to ask for anything in addition [to the software] to support him with his dyslexia in case he was viewed as not being able to do his job”. The Claimant only reluctantly admitted he had said that, but accepted the comment was not consistent with his case that he was constantly asking for and refused reasonable adjustments.

[31]We concluded: 31.1. Mr Clark did not refuse to believe the Claimant had dyslexia. First, if that was the case it is unlikely he would have sought to refer him to OH to see how the Respondent could assist him and secondly, someone else in the four-member team had dyslexia so that it is likely Mr Clark was attuned to the issues this might raise. It seems to us that the Claimant has read into Mr Clark’s suggestion that he be referred to OH for review that Mr Clark did not believe him. That very plainly was not Mr Clark’s position. 31.2. On the basis that we preferred Mr Clark’s evidence to the Claimant’s, there was a discussion about the Claimant’s extra hours, which in essence entailed Mr Clark saying to the Claimant (reflecting what he said more broadly to the Team) that working over was not required. He seemed to us to be an empathetic and careful manager. 31.3. At no point did Mr Clark remove any adjustment the Claimant had enjoyed when working in the Courts. As we have said the 20% reduction in report writing did not map across to his role in the Hub. 31.4. The Claimant was not constantly refused requested adjustments.

[32]The Claimant’s case was that his workload should have been reduced by between 30 and 50%, something based on his own personal working experience rather than any medical advice. He clarified in evidence that what he meant was having a reduced number of files to review. He suggested that the Respondent could have employed an additional PSO to pick up the slack, although Mr Clark told us he would not have obtained additional funding to make up any reduced workload for the Claimant. We could see that there was, as Mr McHugh indicated in submissions, a difference between on the one hand evidence Mr Clark may have been able to offer to his superiors that the model guidelines they had developed were not working, and on the other hand a change within the Team which would have reduced its capacity, and so we accepted Mr Clark’s evidence that this was his view. Complaint by Qasam Faraz

[33]On 6 September 2021 (page 252) a colleague, Qaram Faraz, who the Claimant says was a friend, sent a group email with a notification of intended annual leave on Friday 17 September. The Claimant replied to the group (page 251), but addressing Mr Faraz, “Please request you[r] leave directly with Joseph [Clark] and let him decide, given you have a lot of Friday [sic] off anyway, perhaps you should make alternate arrangements, given it is the other PSO’s who have to pick up the excess work”. Mr Faraz then wrote,” Fridays are when Muslims attend mosques for Friday prayer so that time is already accounted for. If you do have an issue with me attending the mosque please let me know”. The Claimant replied (page 250), “It’s like I said please ask Joseph for leave not me, I’ve no problem with Muslims attend [sic] mosques for Friday prayer, however I have if they are being paid to do it.”

[34]When asked in evidence about why he wrote the second of these emails, the Claimant said that when he had wanted to take leave at a weekend, he had been required to provide solid evidence of his unavailability, and so he was trying to find out how the arrangement Mr Faraz had referred to worked. He described it as “a dyslexic reply”. He was unable to say however how his dyslexia caused him to write what he did. He could not provide any examples of having written emails on other occasions where his dyslexia led to someone being offended by what he wrote.

[35]Mr Faraz approached Mr Clark about the email, and during their discussion said that he would prefer to raise a formal grievance rather than deal with it informally, which he did on 6 October 2021. In his grievance (page 256), Mr Faraz set out the email exchanges and said, “So now he has a problem with my religion and an issue about me being paid to go to the mosque. This behaviour is totally unacceptable; he has no respect for me or my religion”. He said he wanted the Claimant moved to another department as he could not envisage working with him anymore. Mr Clark met Mr Faraz on 20 October 2021 and was advised by HR that there was no need to speak with the Claimant as the email spoke for itself. The Claimant says that there was thus no investigation of his conduct, whilst Mr Clark accepts that this meant he did not get the Claimant’s explanation of the email, although the Claimant also asserted in cross-examining Mr Clark that they did speak about it and that he offered dyslexia as an explanation. The content of Mr Faraz’s appeal against the grievance outcome (see below) suggests that Mr Clark did not speak to the Claimant until he gave him his decision.

[36]Mr Clark’s outcome record of 8 November 2021 is at pages 259 to 260. The grievance was partially upheld. He did not believe the Claimant intended to disrespect Mr Faraz’s faith, but he thought the comments tactless and indicated that further training would be appropriate. He said he would remind the Claimant that flexible working arrangements were not his concern, but the nature of the incident did not warrant him being moved, as that would be disproportionate. No further action was deemed necessary as Mr Clark felt the Claimant had acknowledged the impact of what he had done. Mr Clark says the Claimant did not raise dyslexia as a mitigating factor (JC25). We did not think it necessary to decide whether he did or not. Mr Clark had occasionally spoken with the Claimant previously about the tone of his emails, though that was also the case with other Team members and he did not want to assume that dyslexia was an explanation for the Claimant’s email on this occasion.

[37]Mr Faraz appealed Mr Clark’s decision on 24 November 2021 (page 261). The appeal was heard by Elaine Stokes (Strategic Lead for Women and Courts) on 28 March 2022. Her decision record dated 11 April 2022 (page 265) said: 37.1. Mr Clark had not taken appropriate action when upholding the grievance. 37.2. Proportionate management action would now be taken, which the Respondent says was that there should be a disciplinary investigation, although Ms Stokes did not say this to Mr Faraz for confidentiality reasons. 37.3. Mr Faraz had raised with her other allegations of bullying and harassment by the Claimant and a colleague, and concerns about how Mr Clark had handled the grievance. She did not address those matters in her decision but invited Mr Faraz to raise a further grievance. Mr Faraz’s second grievance

[38]Mr Faraz did precisely that in May 2022 (pages 276 to 280). This grievance was investigated by Mrs Murphy and was against both the Claimant and Mr Clark. It did not concern the Claimant’s email to Mr Faraz dated 6 September 2021. In short, Mr Faraz alleged that the Claimant and a colleague had made comments in a meeting about someone not completing their work, which he believed was directed against him. He also alleged that Mr Clark had failed to support him.

[39]Mrs Murphy interviewed Mr Faraz, Mr Clark, the Claimant, his colleague and two other employees. Having done so, she found there was “no strong evidence of discrimination” (MM10), although her initial thoughts were that communication in the team was ineffective (MM11). She concluded that responsibility for improvements lay with all parties, not just Mr Clark, that there was insufficient evidence to support Mr Faraz’s allegations and that she did not have any concerns about the Claimant. Disciplinary investigation

[40]Mr Faraz appealed Mrs Murphy’s decision as well, his appeal being considered by Amy Thornton in November 2022. Her decision is at pages 341 to 344. She considered both Mrs Murphy’s decision and Mr Faraz’s first grievance dealt with by Mr Clark. It thus appears that the Claimant’s email of 6 September 2021 came to Ms Thornton’s attention in the course of this appeal process and that she reported it to Ms Edwards as her manager. Ms Edwards held discussions with HR and with her own manager, Sarah Chand, after Ms Thornton had made her decision, and decided that a disciplinary process should be instigated. In January 2023, she told the Claimant that Mr Faraz’s complaint was being investigated as an instance of race discrimination, although she acknowledges that the reference to race was an error on her part and that she should have referred to religious discrimination instead.

[41]Mr Wade was appointed Investigating Officer; he was employed in another region and did not know either Mr Faraz or the Claimant beforehand. He considered and raised with Ms Edwards that he was considering “religious motivated harassment as opposed to racial” (AW12). That is what he did. We found it difficult to see that any disadvantage accrued to the Claimant as a result, since the substance of the allegation remained unchanged.

[42]The Claimant says that Mr Wade told Mr Faraz that he would be preparing a report for Ms Edwards saying that there was a case to answer before speaking with the Claimant or Mr Clark. We were not taken to any document evidencing that and Mr Wade denied it. We thus concluded that it was not said. After Mr Wade had interviewed Mr Faraz (the notes of that discussion were not in the bundle), the Claimant attended an investigation meeting on 16 February 2023 (see pages 376 to 379). He was accompanied by Mr Walker. At that meeting, Mr Wade made clear to the Claimant that he was considering religious, not racial, harassment. Mr Wade also explained that whether intended or not, what the Claimant did had had an impact on Mr Faraz (AW14), and that whilst the Claimant may have felt some unfairness compared with how he had been treated when taking time off himself, “this was no justification for criticising Mr Faraz and for raising his religion in the context that he did”.

[43]The Claimant says that when the Claimant raised that his email to Mr Faraz had been affected by his dyslexia, Mr Wade replied “if you can prove it” or words to that effect, something Mr Wade denies (AW16). It does not appear in the transcript of the meeting (pages 726ff) nor in the minutes which the Claimant signed, and Mr Walker does not refer to it in his statement. Mr Walker could not explain to us why he did not raise this alleged comment at the time.

[44]Both Mr Walker and the Claimant also say that Mr Wade rolled his eyes at the Claimant in a dismissive manner whilst the Claimant was speaking about dyslexia. Mr Walker said the specific context was Mr Wade saying that intention to harass had no bearing on the case, the Claimant then asked if he was dyslexic whether that would have a bearing and Mr Wade replied, “Can you evidence that?” and rolled his eyes. The Claimant told us he felt demeaned and valueless.

[45]As already noted, this detail was not in Mr Walker’s statement; he says he recalled it from being in this Hearing. Again, Mr Wade denies what is alleged (AW17), telling us he is confident he did not roll his eyes as he is always careful to go into a disciplinary interview with objectivity and respect for the process. He says that for reading purposes he had a large screen above the screen via which he was attending the meeting and wonders whether his looking up at a document at this point is what accounts for what the Claimant and Mr Walker think they saw.

[46]We concluded: 46.1. Mr Wade did not say, “if you can prove it” or words to that effect, when the Claimant mentioned dyslexia as an explanation for his email. Those words are not in the transcript, nor the agreed minutes, nor do they appear in Mr Walker’s original statement, and they were not challenged at the time or even immediately after the meeting. 46.2. Mr Wade did not roll his eyes. We reached this conclusion for three reasons. First, it was difficult to accept the Claimant’s and Mr Walker’s evidence on this point when they were so clearly wrong on the closely related comment, “if you can prove it”. Secondly, Mr Wade rolling his eyes is completely at odds with what the minutes (and the extracts of the transcript we were taken to) show about how he otherwise conducted himself in the meeting. Thirdly, it is also at odds with how he presented to us, namely as a serious and earnest investigator.

[47]Mr Wade emailed the Claimant after the meeting (page 594) asking about the context for the email comment. The Claimant replied, “I have my own two previous experiences whilst working for NPS Probation of “a” being declined my request to attend a place of worship at a time I would normally be at work. “b” only being allowed to attend my place of worship with an agreement that this would be to determent [sic] to my pay. I was also instructed / required to provide documentary evidence to my SPO as proof I did in fact attend my place of worship, which I duly did”.

[48]On 20 February 2023 (see his report at pages 596 to 601), Mr Wade concluded that a disciplinary hearing was required because the Claimant had not offered a “legitimate explanation of why he treated Mr Faraz differently from other colleagues and why he cited Mr Faraz’s religion as a reason [for it]” (AW22.1) and because it was at least understandable that Mr Faraz “would perceive this to be unacceptable behaviour and potential harassment” (AW22.2). Mr Wade says at AW23 that the Claimant should reasonably have understood that his email would have been “provocative to Mr Faraz and would have been read by other colleagues”. He cited the Respondent’s definition of harassment which is, “unwanted behaviour which affects a person’s dignity and can be seen as demeaning and unacceptable. It can relate to age, sex, race, disability, religion, nationality or any other personal characteristic. It may be continuous or a one-off”.

[49]Mr Wade “did not consider [the Claimant’s] dyslexia to be a major mitigating factor” given the answer to the follow up question referred to above, which indicated that the Claimant’s issue was how the Respondent had treated him. In other words, the Claimant was aggrieved, and involved Mr Faraz in his discontent with the service (AW24). Mr Wade did nevertheless include in his report the Claimant’s reference to dyslexia being an explanation for the email as part of the evidence against the allegation and as a mitigating factor (see pages 367 and 599).

[50]Mr Clark was also the subject of a disciplinary investigation (JC31) because he had treated Mr Faraz’s first grievance as a grievance rather than instigating disciplinary proceedings against the Claimant. We repeat in writing what we expressed at the Hearing, namely our astonishment that this is the approach the Respondent took with Mr Clark, when if anything was required at all it was clearly a performance issue. Mr Wade decided there was no case to answer. Disciplinary hearing

[51]On 23 March 2023, the Claimant was signed off sick for 6 months, which led to the disciplinary process being delayed. Two occupational health reports were commissioned in July and September 2023 respectively (pages 414 and 417) concerning the Claimant’s participation in the disciplinary process, but Ms Edwards did not think it necessary to get advice about the Claimant’s dyslexia as the condition was not disputed and the Claimant had not previously had any communication difficulties such as that with Mr Faraz during many years of service.

[52]At a disciplinary meeting on 14 September 2023 lasting over 3 hours with multiple breaks of varying lengths, at which he was again accompanied by Mr Walker, the Claimant raised: 52.1. Wishing to call Mr Faraz as a witness. Ms Edwards says she did not think this appropriate and so instead she took written questions and relayed them to Mr Faraz who attended the hearing separately. The Claimant also wanted to call Mr Clark as a witness, but Ms Edwards did not deem this necessary. 52.2. How he had been required to provide proof of attending church to get Easter Sunday off, and had taken it unpaid. 52.3. How his dyslexia had impacted the email to Mr Faraz.

[53]The Claimant alleges that Ms Edwards was rude and dismissive. This is denied (JAE28). Ms Edwards says that although the Claimant raised many issues, some unrelated to the matter at hand, she gave him ample space to speak. The focus of the Claimant’s allegation was Ms Edwards’ tone. He told us it was as though she had already made up her mind rather than being willing to hear what he had to say. His case is that this related to disability (dyslexia only) because it was not being considered, in the sense of giving him time to acknowledge what she was saying and respond to her questions. Ms Edwards told us there were multiple breaks for the Claimant to take time with Mr Walker to consider what had been said, which the transcript confirms.

[54]In respect of his allegation that he repeatedly asked for adjustments which were refused by those involved in the disciplinary process, the Claimant eventually clarified in oral evidence that what he meant was first, that Ms Edwards should have considered his dyslexia as a potential explanation for the email to Mr Faraz and secondly, that having done so this should have resulted in no warning being given.

[55]He and Mr Walker also say Ms Edwards told the Claimant that the matter would be concluding on the day of the hearing. For her part, Ms Edwards says (JAE25) that she was making the point that the matter would be concluded because it was a disciplinary hearing separate from any grievance processes and that the hearing had an outcome; in other words, she would not end the hearing and then go off and conduct further investigation interviews. She gave her decision orally at the end of the disciplinary hearing, giving the Claimant a 12-month written warning. The formal outcome letter of 19 September 2023 is at pages 499 and 509 to 510. She concluded that the email of 6 September 2021 “amounted to bullying and harassment against Qasam Faraz on the grounds of its religious content”. As Ms Edwards says (JAE30ff): 55.1. She explained that the Respondent’s policy provides that a single incident can meet its definition of bullying and harassment and she found that this single incident did. The impact on Mr Faraz was significant, which he had described in his statement given to Mr Wade, whether the Claimant intended this or not, and for Ms Edwards the impact on the recipient was the key part of the organisational definition. The email had also been copied to colleagues. 55.2. She accepted several mitigating factors, including the Claimant’s dyslexia, which she recognised could affect information processing and his perception of email content. She told us that what she meant by this was that the Claimant may not have constructed the wording of his email in the way he wanted to. She also acknowledged a difficult team environment, as well as the Claimant’s willingness to apologise once he realised the offence he had caused, and the serious personal issues he was dealing with at the time (which it is not necessary for us to record). 55.3. That said, the Claimant had admitted his comment was made out of frustration (she was careful to tell us this was not frustration about clear communication but about granting of leave in the Team), and given the nature of his work, which was focused on people, it was reasonable to expect him to manage triggers appropriately and seek managerial support rather than respond in an inappropriate way. 55.4. Accordingly, a sanction was necessary because “the behaviour was concerning and required organisational accountability” (JAE32). 55.5. A first, rather than final, warning took into account the mitigating factors and Ms Edwards’ acceptance that “in part, his inability to filter his response to [Mr Faraz] may have been due to his dyslexia”. Ms Edwards told us an oral warning was not appropriate as there was a finding of discrimination.

[56]As a result of the Claimant having described Mr Clark during the disciplinary process as “untruthful” and a “bad manager”, he was told he would have to be moved out of the Hub because it was felt their relationship had broken down. Ms Edwards told us this was not a disciplinary sanction, and that if the Claimant had not expressed these views about Mr Clark he would not have been moved. We accepted that unchallenged evidence. Mr Faraz for his part was already leaving the Team. Ms Edwards had considered whether to move Mr Clark instead, but he managed a specialist team and had considerable experience and technical knowledge. Accordingly, she put the Claimant on paid leave until a suitable role could be found and an OH report was requested.

[57]Ms Edwards and the Claimant met again on 21 September 2023 (page 500) and in subsequent email exchanges (pages 788 to 789) the Claimant accepted a new role. The Claimant told us that his being moved related to disability because it meant him having to learn completely new tasks. Initially he did not accept in evidence that because he had told Ms Edwards that Mr Clark was untruthful and not a good manager, he had to be moved, but he eventually agreed that it was understandable someone may conclude the relationship between him and Mr Clark was untenable at that point.

[58]Ms Edwards’ outcome letter informed the Claimant that if he was going to appeal, he needed to inform her within a week of the letter, and he would then have two further weeks to submit his grounds of appeal on the form she enclosed. This reflected the Respondent’s Disciplinary Policy (see page 720). The Claimant agreed in evidence that accordingly the Respondent did not have a policy of requiring disciplinary appeals to be submitted in 7 days, though he said it would take him longer to process the disciplinary decision and decide whether to appeal, because of his dyslexia.

[59]Ms Edwards said in the letter, “If you fail without good reason to lodge your appeal within the time limits specified your appeal may be disallowed”, which the Claimant accepts suggested that if there was a good reason for any delay that would have been considered. He did not appeal, saying that it was humiliating to have to keep explaining his dyslexia and that the whole process had been too much for him. He told us in oral evidence on Day 3 that he had not read Ms Edwards’ letter until then, because it was not in font size 12 (it appears to us it was). He told us he did not ask his wife to read it either but slung it to one side. He was able to read it in this Hearing. Claimant’s grievance

[60]The Claimant did however present a grievance on 18 December 2023, alleging discrimination – see pages 514 to 518 – and thus doing a protected act. He also contacted ACAS for Early Conciliation on the same date. His grievance included the following assertions: 60.1. “My grievances are against Joseph Clark and Jamie-Ann Edwards and the details of my complaint are as follows: Joseph Clark for failing to provide adequate line management oversight, which would have prevented the email exchange which resulted in the complaint being made against me. Jamie-Ann Edwards for not adhering to the due processes and the reasonable adjustments under the remit of Diversity and Inclusion to ensure that all information was shared with me in accordance with my dyslexic needs”. 60.2. Ms Edwards had told him the matter would be concluded the same day, indicating an unwillingness to understand the context in which he sent the email to Mr Faraz. 60.3. He was denied the chance to call witnesses, which would have helped Ms Edwards understand the impact on him of Mr Clark’s lack of management oversight.

[61]By a letter of 27 December 2023 (page 542), Mr Appleby refused to hear the grievance, saying it should have been part of an appeal against the disciplinary warning. The Respondent’s Grievance Policy (see page 693) says, “Issues associated with the way in which a conduct and discipline issue was handled are not covered by this policy”. The Claimant says the reason the Respondent refused to hear the grievance was because it did not acknowledge his dyslexia and required him to prove it. HR confirmed to Mr Appleby (see pages 534 to 535) that the Claimant should have raised his concerns in the disciplinary hearing or by way of appeal.

[62]The Claimant told us he could not explain how Mr Appleby’s decision not to hear his grievance and his refusal to reconsider that decision (see below) was related to disability, except that what happened in September 2021 should have been looked at from the perspective of a dyslexic person. He also said he could not say how Mr Appleby’s decisions were because of any protected act. He eventually accepted the decisions were not related to disability but were because of the advice given to Mr Appleby by HR, and only because of that advice.

[63]On 17 January 2024, the Claimant’s solicitors wrote to Mr Appleby by email seeking a reconsideration of the decision not to hear the grievance (pages 547 to 550). This too was a protected act, or more precisely gave rise to a belief that the Claimant would do a protected act. Mr Appleby says he has no recollection of receiving it and does not know why it did not arrive in his inbox. The solicitors chased him on 23 February 2024, the Claimant forwarded this to Mr Appleby asking for a response and Mr Appleby immediately replied (page 544) to say he had triplechecked his inbox and had no record of receiving the original email. He told the Claimant he would not ignore such correspondence and had forwarded the second email to the Regional Probation Director. We were not shown any eventual response to the solicitors’ letter. Other than these email exchanges, Mr Appleby had no further correspondence with the Claimant after he sent the letter at page 542.

[64]The Claimant told us his solicitors informed him they had received a read receipt from the original email. He did not ask them to provide it. He eventually accepted it is far more likely that Mr Appleby did not get the letter than that he ignored it. We agreed. Subject access request

[65]On or around 11 March 2024, the Claimant made a subject access request (“SAR”). The email by which he did so was not in the bundle, but the form which was sent by Shared Services to those who were required to provide documents is at pages 565 and 566. It can be seen from the List of Issues at paragraph 32.4 that the Claimant says certain documents were not provided to him and that this was an act of victimisation, although the Claimant accepts that no-one in Shared Services was aware of any protected act. It is not clear to us whether the SAR was for all documents related to the Claimant of any description for the period 6 September 2021 to the date of the request, or just for, “all documents … relating to my disciplinary investigation [from] 6 September 2021 to date”, which is what the Claimant had written in the “other information requested” box.

[66]Dealing with each document mentioned in paragraph 32.4 of the List of Issues in turn, the Claimant eventually accepted in oral evidence that: 66.1. His supervision notes with Mr Clark had been inadvertently destroyed as Mrs Sidhu’s statement explained, in the course of an office refurbishment, though that would only account for supervision notes up to 2021 and not for those from then up to 30 September 2023. 66.2. His request could not be said to have included documents related to Mr Faraz’s grievances and grievance appeals, and accordingly, if those to whom the SAR was passed on were not asked to provide documents related to Mr Faraz’s grievances, the failure to do so could not have been because of any protected act. In fact, whilst we do not hold ourselves out as data protection experts, we think that the SAR could have encompassed information relating to the Claimant included within Mr Faraz’s grievance documents if the SAR was a request that went beyond the disciplinary documentation.

[67]ACAS Early Conciliation took place from 18 December 2023 to 29 January 2024, with the ET1 Claim Form being presented on 26 February 2024.

[68]The Claimant was aware of the duty to make reasonable adjustments in 2018 and that he could complain to the Tribunal if the Respondent did not do what it should in this regard. He did not seek legal advice until around December 2023 and was not a member of a union, but he confirmed that there was nothing preventing him from getting advice and bringing a Claim from 2018 onwards. He knew that there were time limits for doing so, but did not know what they were until he got legal advice, though he accepted an online search would have identified them.

[69]The Claimant says he delayed bringing a Claim from 2018 because he was managing the situation by drinking, and would probably have continued “working under duress” had the disciplinary issue not arisen. He did not accept that the delay in presenting complaints of indirect discrimination and failure to make reasonable adjustments regarding workload (and the related harassment complaints) caused any prejudice to the Respondent, as he says Mr Clark should have a record of their supervision meetings where reasonable adjustments were discussed. As already indicated, Mrs Sidhu and Mr Clark say that those records were inadvertently destroyed with confidential information during an office refurbishment in 2021, and the Claimant accepts they would have been available in 2018 or 2019.

[70]We were satisfied with Mrs Sidhu’s explanation of how the destruction of these documents came about, with her explanation of the steps taken to recover the Teams video recording of the disciplinary investigation meeting between the Claimant and Mr Wade, which she says was irrecoverable because of automatic deletion after 6 months unless the recording was downloaded, and with her explanation of the steps taken to search for emails and meeting notes involving Amy Thornton, Sarah Chand and Mr Faraz which in any way concerned the Claimant.

[71]The Claimant did not bring a complaint of harassment once the Respondent began to investigate his conduct under the disciplinary procedure in January 2023 because whether to do so depended in his view on the outcome of that investigation. Law Disability and knowledge of disability

Law

[72]For reasons that will be clear from our Analysis below, it is unnecessary to summarise the law in relation to disability or knowledge of disability. Burden of proof

[73]Section 136 of the Equality Act 2010 (“the Act”) provides as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court [which includes employment tribunals] could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[74]Direct evidence of discrimination is rare and tribunals frequently have to consider whether it is possible to infer unlawful conduct from all the material facts. This has led to the adoption of a two-stage test, the workings of which were described in the annex to the Court of Appeal’s judgment in Wong v Igen Ltd (formerly Leeds Careers Guidance)

[2005] ICR 931

, updating and modifying the guidance that had been given by the Employment Appeal Tribunal (“EAT”) in Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] ICR 1205

. Claimants bear the initial burden of proof. The Court of Appeal held in Ayodele v Citylink Limited and anor

[2017] EWCA Civ. 1913

that “there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the relevant respondent’s act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage”.

[75]At the first stage, the Tribunal does not have to reach a definitive determination that there are facts which would lead it to the conclusion that there was an unlawful act. Instead, it is looking at the primary facts to see what inferences of secondary fact could be drawn from them. As was held in Madarassy v Nomura International plc

[2007] IRLR 246

, “could conclude” refers to what a reasonable tribunal could properly conclude from all of the evidence before it, including evidence as to whether the acts complained of occurred at all. In considering what inferences or conclusions can thus be drawn, the tribunal must assume that there is no adequate explanation for those facts. In a harassment case, the first stage of the burden of proof is particularly relevant to establishing that the unwanted conduct was related to the protected characteristic, here disability.

[76]Unreasonable behaviour is not of itself evidence of discrimination – Bahl v The Law Society

[2004] IRLR 799

– though the Court of Appeal said in Anya v University of Oxford and anor

[2001] ICR 847

that it may be evidence supporting an inference of discrimination if there is nothing else to explain it.

[77]If the burden of proof shifts to a respondent, it is then for it to prove that it did not commit, or as the case may be, is not to be treated as having committed, the allegedly discriminatory act. To discharge that burden, it is necessary for a respondent to prove that the treatment was in no sense whatsoever on the prohibited ground. That would require that the explanation be adequate to discharge the burden of proof on the balance of probabilities, for which a tribunal would normally expect cogent evidence.

[78]All of the above having been said, the courts have warned tribunals against getting bogged down in issues related to the burden of proof – Hewage v Grampian Health Board

[2012] ICR 1054

. In some cases, it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, in the absence of a satisfactory explanation, would have been capable of amounting to a prima facie case of discrimination. See also Field v Steve Pye and Co (KL) Ltd

[2022] EAT 68

. Section 15

[79]Given the Respondent’s concessions, nothing need be said about the law on what constitutes unfavourable treatment.

[80]What caused the unfavourable treatment requires consideration of the mind(s) of the alleged discriminator(s) and thus that the reason which is said to arise from disability be more than just the context for the unfavourable treatment. In other words, the Tribunal is not to ask whether, but for what arose in consequence of disability, the Claimant would have been unfavourably treated – Robinson v Department for Work and Pensions

[2020] EWCA Civ. 859

. That said, what is said to arise in consequence of disability need not be the sole or main cause of the treatment, though the reason must operate on the alleged discriminator’s conscious or unconscious thought processes to a significant extent (Charlesworth v Dronsfield Engineering

UKEAT/0197/16

). By analogy with Igen, “significant” in this context must mean more than trivial.

[81]Whether the reason for the treatment was “something arising in consequence of the Claimant’s disability” could describe a range of causal links and is an objective question, not requiring an examination of the alleged discriminator’s thought processes – City of York Council v Grosset

[2018] EWCA Civ. 1105

[82]The approach to complaints of discrimination arising from disability was considered in detail by the EAT in Pnaiser v NHS England

[2016] IRLR 170

: “(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 section 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. … (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, it does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the Claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the Claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a Claimant that leads to “something” that caused the unfavourable treatment.'' Indirect discrimination

[83]Section 19 of the Act provides that indirect discrimination occurs when a person(a) (A) applies to another

(b) (B) a PCP that is discriminatory in relation to a relevant protected characteristic of B’s. This is the case when, according to section 19(2): “(a) A applies, or would apply, [the PCP] to persons with whom B does not share the [relevant protected] characteristic [here, the Claimant’s disability or disabilities], (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim”.

[84]The Claimant bears the burden of proof in respect of the first three steps in section 19(2), although group disadvantage was conceded and so nothing further need be said about that.

[85]In Pendleton v Derbyshire County Council

[2016] IRLR 580

the EAT did not read “particular disadvantage” for these purposes as requiring any particular level or threshold of disadvantage. The term was “apt to cover any disadvantage”. Justification

[86]We drew the following principles from the relevant case law concerned with whether a PCP is a proportionate means of achieving a legitimate aim (“justified” for short) – this was of course potentially relevant for both section 15 and indirect discrimination purposes: 86.1. The burden of establishing this defence was on the Respondent. As the EAT said in Dobson v North Cumbria Integrated Care NHS Foundation Trust

[2026] EAT 32

, this means justifying the application of the PCP to the disadvantaged group for indirect discrimination purposes. For the purposes of section 15 discrimination, what must be justified is the application of the PCP to the Claimant. 86.2. The Tribunal has to undertake a fair and detailed assessment of the Respondent’s business needs and working practices, making clear findings on why the aims relied upon were legitimate, and whether the steps taken to achieve those aims were appropriate and necessary. 86.3. What a respondent does must be an appropriate means of achieving the legitimate aims and a reasonably necessary means of doing so. In Homer it was said, approving Mummery LJ in R (Elias) v Secretary of State for Defence

[2006] EWCA Civ. 1293

, and mirroring the decision in Bilka-Kaufhaus GmbH v Weber Von Hartz

[1987] ICR 110

, that what is required is: first, a real need on the part of a respondent; secondly, that what it did was appropriate – that is rationally connected – to achieving its objectives; and thirdly, that it was no more than was necessary to that end. 86.4. In Hardy & Hansons plc v Lax

[2005] ICR 1565

it was said that part of the assessment of justification entails a comparison of the impact upon the affected person/group as against the importance of the aim to the employer. It is not enough that a reasonable employer might think the treatment justified. The Tribunal itself has to weigh the real needs of the Respondent, against the discriminatory effects of the PCP. A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate. 86.5. It is also appropriate to ask whether a lesser measure could have achieved the employer’s aim – Essop v Home Office (UK Border Agency)

[2017] UKSC 27

. 86.6. In summary, the Respondent’s aim must reflect a real business need; its actions must contribute to achieving the aim; and this must be assessed objectively, regardless of what the Respondent considered at the time. Proportionality is about considering not whether the Respondent had no alternative course of action, but whether what it did was reasonably necessary to achieving the aim.

[87]Mr McHugh referred us in addition to Birtenshaw v Oldfield

[2019] IRLR 946

in which, as he submitted, the EAT held that the tribunal should give a substantial degree of respect to the judgement of the employer's decision-maker as to what was reasonably necessary to achieve the legitimate aim, provided they had acted rationally and responsibly. The EAT went on to hold that the tribunal did not have to be satisfied that any suggested lesser measure would have been acceptable to the decision-maker or otherwise caused them to take a different course. Reasonable adjustments

[88]Section 20 of the Act provides as far as relevant: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A 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”.

[89]Section 21 provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person”.

[90]“Substantial” in this context means “more than minor or trivial” – section 212(1) of the Act. The Tribunal’s task is to set out the nature, effects and extent of the alleged substantial disadvantage and assess it objectively. In other words, we needed to consider what it was about any PCP that put the Claimant at the alleged disadvantage. As can be seen from section 20(3), a comparative exercise was required, namely consideration of whether the PCP disadvantaged the Claimant more than trivially in comparison with others. As indicated in Griffiths v Secretary of State for Work and Pensions

[2016] IRLR 216

the comparator is merely someone who was not disabled. They need not be in a like for like situation, but should be identified by reference to the PCP, so as to test whether the PCP puts the Claimant at the substantial disadvantage. The disadvantage must relate to the Claimant’s disability – see Hilaire v Luton Borough Council

[2022] EAT 166

[91]The next question was whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. It is well known that assessing whether a particular step would have been reasonable entails considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the resources and support available to it. The question is how might the adjustment have had the effect of preventing the PCP putting the Claimant at a substantial disadvantage compared with others. This is an objective test, and the Tribunal can substitute its own view for that of the Respondent.

[92]A summary of the above can be found in Environment Agency v Rowan

[2008] IRLR 20

, in which the EAT restated guidance on how an employment tribunal should approach such a complaint, saying that tribunals must identify: “(a) the provision, criterion or practice applied by or on behalf of an employer … (c) the identity of non-disabled comparators (where appropriate); and (d) the nature and extent of the substantial disadvantage suffered by the Claimant.”

[93]Rowan also held (at paragraph 61), subsequently approved in Rider v Leeds City Council [2012]

UKEAT/0243/11

, that what the duty envisages is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining what steps should be taken, thus following Tarbuck v J Sainsbury’s Supermarkets

[2006] IRLR 664

[94]In Bank of Scotland v Ashton

[2011] ICR 632

, Langstaff J emphasised the importance in all cases of the tribunal focusing on the words of the statute and considering the matter objectively: “The Act demands an intense focus by an Employment Tribunal on the words of the statute. The focus is on what those words require. What must be avoided by a tribunal is a general discourse as to the way in which an employer has treated an employee generally or (save except in certain specific circumstances) as to the thought processes which that employer has gone through.”

[95]In Project Management Institute v Latif

[2007] IRLR 579

, specifically paragraphs 54 to 57, the EAT held that for the burden of proof to pass to the respondent, a claimant must establish not only that the duty to make reasonable adjustments was engaged (that there was at least one PCP causing at least one substantial disadvantage), but also that it was breached. In other words, a respondent must understand at least the broad nature of the adjustment proposed and be given sufficient detail to enable it to engage with whether it could reasonably be achieved or not. The EAT made clear that the nature of the proposed adjustment may not be identified until after the alleged failure to implement it, and possibly not until the tribunal hearing, but a respondent must have a proper opportunity of dealing with the matter. Harassment

[96]Section 40 of the Act renders harassment of an employee unlawful. Section 26 defines harassment as follows: “(1) A person(a) (A) harasses another

(b) (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic [here, disability], and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B; (b) the other circumstances of the case;

[97]The Tribunal was thus required to reach conclusions on whether the conduct complained of was unwanted, if so whether it had the requisite purpose or effect and, if it did, whether it was related to disability.

[98]It is clear that the requirement for the conduct to be “related to” disability entails a broader enquiry than whether conduct is because of disability as in direct discrimination. What is needed is a link between the treatment and the protected characteristic, though comparisons with how others were or would have been treated may still be instructive. In assessing whether it was related to disability, the form of the conduct in question is more important than why the Respondent engaged in it or even how either party perceived it.

[99]The question of whether the Respondent had either of the prohibited purposes – to violate the Claimant’s dignity or create the requisite environment – required consideration of the alleged perpetrator’s mental processes, and thus the drawing of inferences from the evidence before us. As to whether the conduct had the requisite effect, there are clearly subjective considerations – the Claimant’s perception of the impact on him (he must actually have felt or perceived the alleged impact) – but also objective considerations including whether it was reasonable for it to have the effect on this particular Claimant, the purpose of the conduct, and all the surrounding context. That much is clear from section 26 and was confirmed by the EAT in Richmond Pharmacology Ltd v Dhaliwal

[2009] ICR 724

. The words of section 26(1)(b) must be carefully considered; conduct which is trivial or transitory is unlikely to be sufficient. Mr. Justice Underhill, as he then was, said in that case: “A Respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That … creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt … …We accept that not every racially [as it was in that case] slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…”.

[100]As already indicated, it was for the Claimant to establish the necessary facts which go to satisfying the first stage of the burden of proof. If he did, then it is plain that the Respondent could have harassed him even if it was not its purpose to do so, though if something was done innocently that may be relevant to the question of reasonableness under section 26(4)(c). Violating and intimidating are strong words, which will usually require evidence of serious and marked effects. An environment can be created by a one-off comment, but the effects must be lasting. Who makes the comments, and whether others hear, can be relevant, as can whether an employee complained, though it must be recognised that is not always easy to do so. Where there are several instances of alleged harassment, the Tribunal can take a cumulative approach in determining whether the statutory test is met. Victimisation

[101]Section 39(4) of the Act says (as far as relevant) that: “An employer (A) must not victimise an employee of A’s (B): … (d) by subjecting B to any other detriment”.

[102]Section 27 defines victimisation (again as far as relevant) as follows: “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because – (a) B does a protected act …”.

[103]Given the Respondent’s concessions we need say nothing about the law on protected acts.

[104]No comparator is required for the purposes of a victimisation complaint, but the protected act must be the reason or part of the reason why the Claimant was treated as he was – Greater Manchester Police v Bailey

[2017] EWCA Civ. 425

. Again, this required consideration of the mental processes of the alleged victimisers and again the protected act need not have been the primary reason for the act in question, though it must have been more than a trivial influence upon it.

[105]Section 123(1) of the Act provides that proceedings on a complaint under Section 120 may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable.

[106]In indirect discrimination cases, as Mr McHugh submitted, time begins to run from when the PCP is applied, though this is not immediately obvious in every case, given that conduct extending over a period is deemed to be done at the end of that period.

[107]A continuing effect on an employee is not of itself sufficient to establish conduct extending over a period. In Hendricks v Metropolitan Police Commissioner

[2003] IRLR 96

it was said that the question is whether there is an ongoing situation or continuing state of affairs in which the Claimant was less favourably treated (as it was in that case) and for which the Respondent was responsible. The Court of Appeal acknowledged that the burden is on a claimant to prove a continuing act. The Court’s decision in Sougrin v Haringey Health Authority

[1992] ICR 650

concerned a decision not to regrade a nurse, which she said was an act of race discrimination and which had an ongoing effect on her pay. The Court drew a distinction, rehearsed in several authorities, between the act complained of (the refusal to upgrade) and a policy or rule not to upgrade black nurses; there was no complaint alleging the latter. The refusal to regrade was therefore a one-off event, which took place at a particular point in time, and the lower pay was simply a continuing consequence of that refusal. Ascertaining the act(s) complained of is therefore clearly crucial. A repeated refusal of a request may constitute conduct extending over a period – Cast v Croydon College

[1998] IRLR 318

[108]Section 212(3) defines an “omission” as a deliberate omission to do something, a refusal to do it or a failure to do it. Section 123(3)(b) says that “failure to do something is to be treated as occurring when the person in question decided on it”. Section 123(4) says: “In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—(a) when P does an act inconsistent with doing it, or

(b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it”.

[109]For reasonable adjustments complaints, time runs from when an employer, from the employee’s perspective, could reasonably be expected to comply with its duty – Matuszowicz v Kingston upon Hull City Council

[2009] IRLR 288

[110]The provision for extending time where it is just and equitable to do so gives to tribunals wider scope than the test of reasonable practicability which applies for example in unfair dismissal cases. Nevertheless, there is no presumption that it will be – Robertson v Bexley Community Centre (trading as Leisure Link)

[2003] IRLR 434

– though extending time does not require exceptional circumstances. In British Coal Corporation v Keeble

[1997] IRLR 336

, it was held that similar considerations arise in this context as would be relevant under the Limitation Act 1980, namely the prejudice which each party would suffer as a result of the tribunal granting or refusing an extension, and all the other circumstances, in particular:(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the Claimant acted once he or she knew of the facts giving rise to the cause of action; and

(e) the steps taken by the Claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[111]In Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ. 640

Leggatt LJ in the Court of Appeal said that Parliament has given tribunals “the widest possible discretion” in deciding whether to extend time in discrimination cases. Notwithstanding Keeble there is no list of factors which a tribunal must have regard to, though the length of and reasons for delay, and whether delay prejudices a respondent for example by preventing or inhibiting it from investigating the claim whilst matters were fresh, will almost always be relevant factors. At paragraph 25 he said that there is no reason to read into the statutory language any requirement that the Tribunal must be satisfied that there are good reasons for the delay, let alone that time cannot be extended in the absence of an explanation of delay from the Claimant. At most, he said, whether any explanation or reason is offered and the nature of them are relevant matters to which the Tribunal should have regard. Analysis

Introduction

[112]In Chapman v Simon

[1994] IRLR 124

, the Court of Appeal made clear that an employment tribunal’s jurisdiction is limited to the complaints that have been made to it. In other words, tribunals can only decide the case presented to them.

[113]Accordingly, whilst of course a litigant in person should be afforded appropriate assistance in the presentation and formulation of their case, which is why we spent such a long time at the start of the Hearing seeking to understand precisely how various complaints were being put, it was not for us to point out to the Claimant where his complaints were not made out on the evidence and suggest how any gaps in the evidence should be filled, nor was it for us to suggest, still less decide, a different case than that which is reflected by the Claim Form. We sought during our deliberations to take as generous an approach as was reasonable in identifying the complaints we were being asked to decide, as will be clear from what follows below, but we had to have in mind the guidance of the EAT in Chandhok v Tirkey

[2015] ICR 527

about taking care not to be diverted into thinking that the case was to be found elsewhere than in the pleadings.

[114]We should also mention the burden of proof provisions set out above. We reflect on that as we address each type of complaint below, but in short the burden was on the Claimant to prove a prima facie case. The burden of proof provisions and case law recognise that discrimination is rarely easy to prove even where it has taken place. What he had to prove therefore, in order to pass the burden of proof to the Respondent to prove that there had been no discrimination, were facts from which we could decide, in the absence of any other explanation, that he had been discriminated against, harassed or victimised. Of course, in relation to the section 15 and indirect discrimination complaints, if the question of justification arose, the burden of proving that defence lay entirely with the Respondent. Section 15 Unfavourable treatment

[115]There were four instances of unfavourable treatment – the written warning, the Claimant being redeployed, the refusal to hear his grievance and the refusal to reconsider that decision. As already indicated, this was all accepted to be unfavourable treatment, and so we need say nothing further about that. What arose in consequence of disability?

[116]The Claimant relied on two things, first the writing of the email to Mr Faraz and colleagues on 6 September 2021 which he says arose from dyslexia, and secondly his not appealing the first written warning, which he says arose in consequence of all of his disabilities. The burden was on the Claimant to establish that these things arose in consequence of disability or at least facts from which we could conclude that they did. As the case law set out above – including Grosset and Pnaiser – makes clear, this is an objective test, and there does not have to be a direct link between the disability and what is said to arise from it; the “something” may be more than one step removed from the disability. Email of 6 September 2021

[117]The Claimant says that what he wrote to Mr Faraz and colleagues on 6 September 2021 arose in consequence of his dyslexia. Ms Edwards also concluded that there was a connection – see our findings of fact above. Mr McHugh submitted that Ms Edwards only decided that there may have been a connection to dyslexia, but in the document at page 499 which records the decision she read to the Claimant at the disciplinary hearing she said that she took into account as mitigation, “Your dyslexia and the impact that has [on] processing information, and this in turn impacts on how you would have perceived the information via e-mail”. She told us in oral evidence that what she meant by this was that the Claimant may not have constructed the wording of his email in the way he wanted to. Accordingly, we concluded that she went further than saying that there may have been a connection; she effectively concluded that there was.

[118]We were obliged of course to have regard to what Ms Edwards said, but because the test is objective, as Mr McHugh submitted, it does not matter what she thought; the question is what the evidence showed us, objectively, about any connection between dyslexia and the email. We would also note that what Ms Edwards read out at the disciplinary hearing suggests that she was referring at that time to how the Claimant perceived Mr Faraz’s email (“how you would have perceived the information via e-mail”) and not referring to what the Claimant himself wrote, although as we have said her oral evidence did address the latter.

[119]The evidence to which we were taken led overwhelmingly to the conclusion that what the Claimant wrote in his email was not something that arose in consequence of dyslexia: 119.1. Whilst we of course accepted that dyslexia can affect what a person writes, and that the Claimant’s impact statement said this is how dyslexia affects him in particular, what the impact statement focused on was the extra time and effort the Claimant needed to put things in writing, together with the propensity to spelling and grammatical errors. We did not think that either of those things could account for what the Claimant wrote on 6 September, in that it was a very short email and there were no spelling or grammatical errors. 119.2. Whilst the Claimant also said in his impact statement that misunderstanding information affects his social relationships, he could not give us any other examples of when this had happened or when something had arisen from a written communication in any sense similar to what happened with Mr Faraz. Had there been any such occasion, it would surely have stuck in his mind. 119.3. Indeed, Ms Edwards noted in reaching her decision that the Claimant had not encountered any communication issues over a long period of service with the Respondent. We saw no evidence to doubt that she was correct on this score. 119.4. At no point did the Claimant say to us he did not understand what Mr Faraz had written. All the evidence suggests that he fully comprehended what Mr Faraz’s emails said. 119.5. It was suggested by Mrs Hyatt in submissions that the Claimant wrote the email under stress, but whilst he did put to Ms Edwards in cross-examination that 6 September was the first anniversary of his mother’s passing, he did not say to us in his own evidence that he wrote the email under stress, and we were not taken to any evidence that he said this in any of the internal investigations either. 119.6. The 2013 dyslexia report said that his vocabulary standard score was better than 81% of the norm group. The indication was that the Claimant had a good vocabulary. This was confirmed by the conclusion to the report which, as Mr McHugh reminded us, said that the Claimant had “relative strengths in semantic fluency, vocabulary and comprehension”. 119.7. The report also said he had mild difficulties with verbal fluency, but we did not think that could in any sense explain what the Claimant wrote to Mr Faraz. Indeed, it was clear to us, as the Respondent submitted, that he wrote exactly what he intended to write. We say that because, first, when asked in oral evidence to explain why he sent the email he said it was because when he had wanted a week off for religious observance he had been required to provide evidence. Secondly, when asked by Mr Wade to explain the email, outside the pressure of the formal investigation meeting, the Claimant referred again to his own historic experience, and only to that experience – page 594. This confirmed to us that even acknowledging that stress can worsen symptoms of dyslexia, that could not account for what the Claimant wrote to Mr Faraz. 119.8. Finally, at no point did the Claimant give us an explanation of what his email to Mr Faraz should have said. We repeat, we were amply satisfied that he wrote what he meant and intended.

[120]In short, and whilst we accepted Mrs Hyatt’s submission that the Claimant was not obliged to provide medical proof in support of this part of his case, he was wholly unable to explain to us how the email arose in consequence of dyslexia. He did not prove facts from which we could conclude that it did. Not appealing the warning

[121]We now turn to whether the Claimant not appealing Ms Edwards’ warning was something which arose in consequence of his various disabilities.

[122]The Claimant told us that he put the warning letter to one side. He also said it was humiliating to have to keep explaining his dyslexia and that the whole process had been too much for him. We noted however that he was told of the warning orally at the end of the meeting on 14 September 2023 and was able to attend a meeting with the person who gave him the warning one week later to have a discussion about his redeployment. In the light of that, even though it is accepted that by this point the Claimant was a disabled person by reason of stress, depression and anxiety, it is difficult to see that those conditions prevented him from at the very least registering his intention to appeal. There was no evidence to suggest that they did, other than his assertion that the whole process had been too much for him. We concluded similarly in relation to dyslexia because again, we did not see how that disability prevented the Claimant from indicating the simple fact that he wished to appeal which would have set the appeal process running. We noted the Claimant’s assertion that dyslexia prevented him from understanding the full import of the letter, but as we have indicated, around the time of the 7-day deadline for doing so, on 2 October 2023 (page 788), the Claimant was able to communicate with Ms Edwards in writing clearly and fluently regarding his new role. He had also been given the decision and the right of appeal orally by Ms Edwards.

[123]Furthermore, his grievance submitted 3 months later did not say that any of his disabilities had prevented him from appealing, and he had not said anything to that effect beforehand. The Claimant had also returned from sickness absence, which had been related to the stress of his workplace issues, on 17 August.

[124]Again therefore, the Claimant did not prove facts from which we could conclude that his not appealing the warning was something which arose in consequence of his disabilities or any of them.

[125]That dealt with the section 15 complaints, which failed accordingly, but we briefly addressed some additional points which would have led to them failing in any event.

[126]In respect of point 11.2 in the List of Issues, the Claimant being redeployed, the Claimant did not show that this happened because of either of the things said to arise from disability. The redeployment was solely because of what he had said during the disciplinary process about Mr Clark.

[127]The complaints at issues 11.3 and 11.4 would have failed for the same reason. It is true that in not permitting the Claimant to raise a grievance the Respondent said that the correct route to challenging the warning was to appeal against it under the Disciplinary Policy, but the reason for Mr Appleby’s decision in this respect was very obviously not that the Claimant had not appealed but because of what the Respondent’s grievance policy said and because of what Mr Appleby had been advised by HR. Neither of those things were said to have arisen in consequence of disability. Robinson v DWP makes clear that it is not enough to say, as Mrs Hyatt submitted, that had there not been the disciplinary warning there would have been no need for a grievance.

[128]Returning to issue 11.1, the written warning, we would have found it to be justified, or more precisely a proportionate means of achieving a legitimate aim and so that complaint would have failed on that basis also.

[129]The aim relied on by the Respondent was the need to address and correct unacceptable conduct and behaviour, as well as to ensure equality within the workplace. That clearly amounts to one or more legitimate aims; it could hardly be contended otherwise.

[130]As to whether what the Respondent did in warning the Claimant was a proportionate means of achieving that aim (or those aims), first of all, we were satisfied that there was a real need to address the Claimant’s conduct. In submissions Mrs Hyatt suggested an oral warning would have been more proportionate, which indicates an acceptance that the Claimant’s conduct could not be ignored. Even Mr Clark thought that when deciding to do no more than require the Claimant to attend training, whilst the apparent strength of Mr Faraz’s feelings about what had happened also very obviously confirms that conclusion. Secondly, there was plainly a rational connection between what the Respondent did in giving the warning and the achievement of the aim. Addressing such conduct in this way served the purpose of ensuring equality in the workplace.

[131]The third question was whether the warning was no more than was necessary to achieve the aim. As just noted, Mrs Hyatt submitted that an oral warning would have been sufficient, but the availability of a possible lesser sanction is not determinative of the point, and as Ms Edwards said, once the Respondent found that there was harassment, a written warning cannot be said to be disproportionate when weighing the real need of the Respondent against the impact of the warning on the Claimant: 131.1. Whilst of course there was some impact on him in terms of his disciplinary record and how he says the warning made him feel, we could properly assume that he would have carried on working for the Respondent with an unblemished record as he had done for many years previously, so that within the year, his record would once again have been clean. Moreover, Ms Edwards explicitly took the disability into account in reaching her decision by mitigating what she says would otherwise have been a final written warning down to a first written warning. 131.2. It was right to take into account the impact on Mr Faraz, who – according to what we saw in writing – was very upset by the incident. Ms Edwards was right too to take into account the fact that the email was copied to others in the Team, the fact that the email reflected the Claimant’s frustration with how he had been treated (not by Mr Faraz, but by management) and the nature of the Claimant’s role.

[132]Taking all of those factors into account, we would have concluded that the warning was a proportionate means of achieving one or more legitimate aims, notwithstanding that Mr Clark and HR at the time of the first grievance did not deem such action appropriate. Ms Edwards was not alone in feeling that it was: Amy Thornton and Elaine Stokes plainly took a similar view. Harassment

[133]The Claimant was required to establish the relevant facts on the balance of probabilities, and those facts had to be such from which we could conclude in the absence of another explanation that the conduct was unwanted, related to disability and had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. We take each of the 11 complaints in turn. 1. Removal of reasonable adjustments from 2018

[134]This complaint failed on the facts. All adjustments the Claimant had in the Courts were carried forward to the Enforcement Hub with the exception of the 20% reduction in report writing. As Mr Clark said, that simply did not map across to the Hub as the Claimant was no longer required to write reports. Even if “reduction in workload” had mapped across, Mr Clark’s approach – advising the Claimant that he should be referred to OH to get an updated assessment so that the Respondent could see how best to support him – could not on any account be said to have had the requisite purpose or effect. 2. Continually asking for reasonable adjustments without success

[135]This complaint was really in two parts. We dealt with them separately. 2.1. Mr Clark

[136]First there were the requests to Mr Clark. On the Claimant’s own case, Mr Clark refused to grant his repeated requests for adjustments only from 2020, and whilst it seemed doubtful to us that the Claimant was asking for them “continually”, Mr Clark did tell us that the Claimant often raised resourcing issues at team meetings. That said, the unwanted conduct properly defined in the light of our findings of fact, seemed to be that Mr Clark said to the Claimant that he wanted to refer him to OH for an assessment. Even judged from the Claimant’s perspective, we were not prepared to conclude that this could properly be said to be unwanted conduct, given that what was being suggested was positively helpful and plainly intended as such.

[137]The complaint failed on that basis. In any event, although it related to disability, it was impossible to see how the conduct could have had the requisite purpose or effect. Mr Clark was in our judgment right to refer the Claimant to OH to obtain a review after several years had passed since the dyslexia assessment, given in particular the likely improvements in technology over that time and the Claimant’s role having changed. He was also right not to assume, without getting expert input, that adjustments of any particular kind were required or what those adjustments would be. The Claimant accepted in evidence that what Mr Clark did in this respect was reasonable. He was unable to explain either to Mr Clark or to us why he did not take up what Mr Clark had suggested. 2.2. Investigating Officers

[138]The Claimant clarified that the second part of this complaint was directed at Ms Edwards and that what it came down to was first, that she should have considered his dyslexia as a potential explanation for the email of 6 September 2021 and secondly, that having done so, she should have decided not to give him any warning at all.

[139]The first element of this complaint was not established on the facts, because Ms Edwards explicitly did take the Claimant’s dyslexia into account as an explanation for the email. More broadly and in any event, given our finding that the email was not something that arose in consequence of disability, we could not conclude that the giving of the warning was related to disability. This complaint also failed. 3. Three investigations into the same disciplinary allegation

[140]There was in fact only one disciplinary investigation, so that this complaint also failed on its facts. In any event, again, the conduct of whatever investigations there were was not related to disability given our conclusion that the sending of the email did not arise in consequence of dyslexia. 4 and 5. Mr Wade

[141]Both of these complaints failed on the basis of our findings of fact, namely that Mr Wade did not make the comment attributed to him or roll his eyes. 6. Ms Edwards being rude and dismissive at the disciplinary hearing

[142]The Claimant clarified that this was about Ms Edwards’ tone, which he told us indicated she had made up her mind and was unwilling to hear what he had to say. He says this related to disability (dyslexia only) because his disability was not being considered, in the sense of giving him time to acknowledge what Ms Edwards was saying and respond to her questions.

[143]We found again that the Claimant had not proven the unwanted conduct on which he relied. This was a long disciplinary hearing, with several breaks during which he had opportunity, with Mr Walker’s assistance, to consider what had been said to him. Nothing we were taken to in the agreed minutes or the transcript suggested an improper tone or that the Claimant was prevented from saying what he wanted to say.

[144]The Claimant drew to our attention Ms Edwards’ comment that the disciplinary process would conclude on the day. We thought that comment was somewhat illadvised, because disciplinary hearings can require further investigation in just the same way as a grievance hearing might; you never know what might come up. That said, the comment did not relate to dyslexia, but to Ms Edwards’ view of the process. Moreover, we did not see how it could have been said to have the requisite purpose or effect given the length of the hearing, the fact that it is clear the Claimant had ample opportunity to say what he wanted, and the fact that neither the Claimant nor Mr Walker sought further time to respond to what was being put to them.

[145]We were not taken to any part of the minutes or transcript which suggested that Ms Edwards did anything that, when objectively assessed, could have made the Claimant feel as though he was putting on his dyslexia or using it as an excuse. And of course, her decision, explicitly taking dyslexia into account, made precisely the opposite point.

[146]For all of those reasons this complaint also failed. 7. Moving the Claimant out of the Hub

[147]We could just about accept that this was unwanted conduct from the Claimant’s perspective, although based on the evidence presented to us, he did not seem to resist the suggestion of redeployment particularly strongly. That said, the redeployment was very obviously not related to disability but only to what the Claimant had said about Mr Clark. Their line manager/employee relationship had become untenable. For that reason, this complaint also failed. 8 and 9. Not allowing the Claimant to raise a formal grievance and not allowing him to challenge that decision

[148]We were able to go straight to the question of what these decisions were related to. They were not inherently related to disability, not least given what we have concluded about the Claimant’s conduct in sending the email and about his failure to appeal. Mr Appleby did not have the Claimant’s disabilities in mind when making his decision either. Rather, he was laser-focused on what the Grievance Policy said, rightly or wrongly, and was acting solely on advice from HR. The Claimant accepted that was the case. Further, when trying to explain why what Mr Appleby did was related to disability, he said it was because the Respondent did not acknowledge his dyslexia and required him to prove it. That is simply not correct. None of the Respondent’s witnesses denied the Claimant was dyslexic. These complaints also failed. 10 and 11. Ignoring the request for reconsideration and the solicitors’ letter

[149]These allegations were essentially identical, as the solicitors’ letter included the request for reconsideration. We therefore took them together.

[150]The alleged harasser was Mr Appleby. As we have concluded that he did not receive the solicitors’ letter, for whatever mysterious reason, the complaints failed on the facts.

[151]In summary, in relation to all of the harassment complaints, the Claimant did not prove facts from which we could conclude that any established conduct was unwanted, related to disability and had the statutory purpose or effect. In particular, there was nothing in the overall context of this case to make a connection between any proven conduct and disability. Victimisation

[152]The Respondent accepted that all four things the Claimant relied on were protected acts. The question for us therefore was whether any of the alleged detrimental treatment occurred and if it did whether any of the protected acts, or the Respondent’s belief the Claimant may do a protected act, was an influence on the alleged victimiser. 1. Refusing to hear the Claimant’s grievance

[153]We repeat what we have said in relation the parallel harassment complaint. The Claimant accepted that Mr Appleby refused to hear the grievance because of his understanding of the Respondent’s Grievance Policy, confirmed by the advice he received from HR, and nothing else. The complaint failed. 2. On 27 December 2023 the Respondent confirmed the Claimant was not permitted to appeal the first written warning out of time

[154]This complaint had to fail on its facts as Mr Appleby’s letter of that date said no such thing. We were not told that the Claimant relied on some other correspondence of the same date. 3. Mr Appleby did not respond to the solicitors’ letter of 17 January 2024

[155]The Claimant confirmed that Mr Appleby was the alleged victimiser. We have already dealt with this in relation to the parallel harassment complaint. The only reason Mr Appleby did not respond to the letter was that he did not receive it. In relation to all three of the complaints concerning Mr Appleby, we were able to identify very clearly the reason why he did what he did, based on the facts which were proven on the evidence. The Claimant did not prove facts from which we could conclude that Mr Appleby was in any way influenced by the Claimant having done a protected act. 4. Subject Access Request

[156]Taking the supervision notes first, as we have said, the destruction of documents on the office refurbishment would only account for the non-provision of the notes up to the date of that refurbishment, namely 2021. The Respondent would therefore have been in some difficulty in discharging the burden of proof of showing that the failure to disclose the notes from 2021 onwards was nothing whatsoever to do with a protected act if the Claimant had proven facts from which we could conclude that it was. In fact however, we heard no argument and saw no evidence to suggest any such thing. The burden did not therefore pass to the Respondent and this complaint failed accordingly.

[157]We can deal briefly with the other documents not being disclosed because the Claimant accepted that it would not have been obvious that his SAR covered Mr Faraz’s grievances and grievance appeals. Again, there was no evidence from which we could conclude that a protected act was a reason for them not being provided.

[158]It was also relevant to note that there was no evidence that the Shared Services staff who dealt with the SAR had any knowledge of any of the protected acts.

[159]In relation to the victimisation complaints generally, we would add that what we heard about the Respondent, specifically Ms Edwards and Mr Wade, but also Ms Stokes and Ms Thornton, is that this is an employer, or at least a part of this employer, that takes discrimination allegations very seriously, rather than one which would take unkindly to receiving them. This was most obviously shown by the seriousness with which Ms Edwards and Mr Wade viewed the alleged harassment of Mr Faraz. Of course, that was not of itself determinative, but it confirmed our conclusions. Indirect discrimination

[160]The Respondent accepted that both alleged PCPs could be PCPs in law, but said that it did not apply either of them in practice. We were thus required to determine whether it did. PCP1 – completing a certain amount of work in contractual hours

[161]Unhelpfully, this alleged PCP did not specify what was meant by a “certain amount”. On one interpretation, any employer would have this PCP because it is the very essence of an employment relationship that work will be done in contractual hours, but that would be a PCP to work in contractual hours, rather than to complete a certain amount of work in contractual hours. The PCP on which the Claimant relied must have been referring to completion of a particular volume of work per day or per week. Noting that in the reasonable adjustments context the Claimant said that the step the Respondent should have taken in relation to this PCP was to reduce the number of files he had to review, we took the PCP to be having to review a certain number of files per day or per week in contractual hours. The Claimant’s case on when he says the PCP applied and put him at a particular disadvantage changed during the course of the Hearing, as we have identified. On his own case he began to struggle and sought a workload reduction in 2020. That was our starting point.

[162]As our findings of fact make clear, broadly speaking the Claimant’s work divided into two parts, namely general file reviews and then final file reviews before submission to magistrates. As paragraph 10 of his Particulars of Claim referred to both of these elements of the role (page 23) and was followed in subsequent paragraphs by the Claimant’s description of the issues he says he faced with his workload generally, we considered whether the Respondent had this PCP in relation to either element of the role.

[163]Dealing first with general file reviews, it was clear that there was no fixed target in terms of a number of files to review per day or per week. The Respondent’s model was no more than that – a resource model – with a clear recognition in Mr Clark’s communications to the Team that cases differed from each other in terms of the time they required. Whether the Birmingham work, which was shared between the Team, or the Claimant’s particular responsibility for Black Country work, the general position was that the Claimant was informed that he could leave uncompleted work to the next day and, as Mr Clark said, if that had become a repeated pattern, he would have looked at reallocation. Indeed, if it had become a repeated pattern for the Team, he would have gone to management with a request for more resource.

[164]In relation to the general file reviews therefore, the position was that whilst there was a model, which when interpreted by Mr Clark estimated that PSOs would review up to 10 files per day and in reality probably 6 to 8, that was not a fixed rate of work or an expectation that this is what PSOs would do day in and day out. This was not therefore a situation analogous to that of the employee in United First Partners Research v Carreras

[2018] EWCA Civ. 323

where there was a clearly stated expectation or workplace culture that he would work late to get work done. The Claimant may have felt otherwise, but given the absence of any formal target and given also the communication from Mr Clark that work could be left, in colloquial terms, the Respondent’s approach to this work was effectively, “Do what you can in your normal hours”.

[165]As to the second part of the work, each PSO was given 25 files (on Mr Clark’s evidence, after 2019) for submission to magistrates twice a month, though in all likelihood they would not have to check a file they had prepared themselves so that in practice they would have been reviewing fewer than 25 files in total. We were not told how long each of these reviews would take and it was not clear to us either when the PSOs would in practice be able to commence the work, although Thursday would appear to have been the norm. What was clear was that the Friday magistrates sitting was immoveable and therefore the files had to be reviewed and ready. This was close to a requirement and it was therefore, in our judgment, a PCP that the Respondent applied. This was not “do what you can”; the work had to be done, ready for court submission, though Mr Clark was clear that PSOs were encouraged to work on these files before the Thursday if they could.

[166]There is no disputing that the Claimant was working late, and it was logical to conclude that from 2020 this would have included working late on at least some alternate Thursdays to get files ready for Court. Although we heard no evidence of whether other PSOs were also working late on these occasions, other than Mr Clark’s evidence that the other PSO with dyslexia did not have any workload issues, group disadvantage was conceded and so we did not need to consider that issue further.

[167]The remaining question therefore was whether the requirement to complete the file submission reviews was a proportionate means of achieving a legitimate aim.

[168]The Respondent clearly had a legitimate aim – operational efficiency in the Probation Service. We took that as including the need to get the cases before the magistrates on time.

[169]Was the requirement to complete this work in contractual hours a proportionate means of achieving that aim?

[170]First, it is difficult to overstate the importance of the aim to the Respondent. It had to be ready for, and be seen to be ready, for Court hearings. Breaches of probation had to be considered as promptly as possible.

[171]Secondly, requiring the work to be done by the deadline obviously helped the Respondent meet that aim.

[172]Thirdly, was the need to get the work done more than was necessary to achieve the aim, comparing the effect of the PCP on the PSOs against the importance of the aim to the Respondent? We concluded that it was not more than was necessary, given the following: 172.1. Working over to complete this particular type of work was by its nature a relatively infrequent occurrence (there were two Fridays a month when files had to be before the magistrates). 172.2. As we have already noted, group disadvantage was conceded, but whether in relation to the very narrow pool of the PSOs, or a wider population such as other employees of the Respondent who were required to work over to meet Court deadlines, we had almost no evidence from either party about the impact of the PCP, except as we have said that we do know that the other PSO who had dyslexia did not identify any workload problems, which would also suggest that the impact of the PCP was not over-burdensome. 172.3. As to the question of whether the Respondent could have done something less impactful, we come back to Mr Clark’s attempts to refer the Claimant to OH. This may well have helped the Claimant work more effectively by giving him access to improved software or other aids, and it might also have given the Respondent a proper basis on which to take other steps to ameliorate the need for him to work over, including a change in his workload, whether necessitated by dyslexia or the other disabilities or a combination of them all. The Claimant’s non-cooperation prevented it from doing so, but Mr Clark’s approach to the Claimant’s concerns supports the conclusion that the Respondent took a proportionate approach to what it required of its employees.

[173]Moreover, the disadvantage the Claimant relied on was having to do the extra work unpaid. That was strictly speaking correct, but there was no indication that the Respondent disallowed all build-up of TOIL when work outside of contractual hours was undertaken. Indeed, Mr Clark told us in unchallenged evidence that a limited amount of TOIL, up to 3 days, could be carried at any one time and up to 2 days could be taken in a four week period. We thought that this too ameliorated the impact of the PCP on the Claimant and his colleagues.

[174]For all of these reasons, summarised as being: 174.1. The critical importance of the aim to the Respondent. 174.2. The relatively light impact of the PCP on the Claimant and other PSOs with dyslexia in terms of when they were required to work over to meet court deadlines. 174.3. The Respondent’s willingness to investigate what it could do to reduce the impact on the Claimant by referring him to OH. 174.4. The fact that it was willing to grant TOIL in any event, the practice of requiring PSOs to ensure work was completed for court deadlines twice a month was in our judgment a proportionate means of achieving a legitimate aim. This complaint failed accordingly. PCP2 – the requirement to appeal a disciplinary outcome within 5 working days of the outcome

[175]It was abundantly clear to us that all that was required in the 5 working days (or 7 calendar days), as set out in the Respondent’s Disciplinary Policy and as made very clear to the Claimant by Ms Edwards, was notification of intention to appeal. No grounds were necessary at that stage. That is what the Claimant accepted in oral evidence.

[176]This was clearly a provision, or a practice, that the Respondent applied. It could hardly contend otherwise.

[177]Again, group disadvantage was conceded; individual disadvantage was not. The particular disadvantage the Claimant relied on was “increased stress, anxiety and depression”. What he actually said in evidence however was that it would take him longer to process the disciplinary decision and decide whether to appeal. That is very different to increased stress, anxiety and depression and in any event, the Claimant gave no evidence as to how the requirement to notify an intention to appeal had that effect.

[178]This complaint had to fail on the basis that the Claimant did not establish facts from which we could conclude that he was put to the particular disadvantage relied upon. We would in any event have found the PCP to be justified. The legitimate aim was consistent application of the Respondent’s disciplinary procedure, which was in our view self-evidently a legitimate aim; the Claimant did not contend otherwise.

[179]Was the PCP a proportionate means of achieving it? Requiring submission by all employees of an indication to appeal in a short timescale was clearly rationally connected to the aim. Given the very limited requirement as to what was required in the 5 working days, and the fact that, as reflected in Ms Edwards’ letter, there was room for extending the deadline if sought, the initial deadline was in our judgment a proportionate means of achieving the aim. Of course it could have been 14 days, or perhaps even longer, but the impact on the Claimant (and by extension other PSOs or employees generally with dyslexia) of the PCP that the Respondent applied was very limited. Reasonable adjustments

[180]The first question in relation to the reasonable adjustments complaint was whether the Respondent had a PCP of requiring employees to complete a certain amount of work in their contractual hours. We have found in the indirect discrimination context that it did, but only in relation to the requirement to complete work for submission to Court twice per month.

[181]Did that put the Claimant at a substantial disadvantage compared to persons who were not disabled? As with the indirect discrimination complaint, he said that the substantial disadvantages were working additional hours unpaid to complete his work and suffering from stress, anxiety and depression. Notwithstanding that we have found he was put to a particular disadvantage by the PCP in the context of the indirect discrimination complaint, we thought it less clear whether that disadvantage could be described as substantial, that is more than minor or trivial. We decided however to assume that to be the case for the purposes of our analysis, as for reasons we will now make clear, the complaint would have failed in any event. We also assumed that the Respondent had knowledge of at least part of the disadvantage, as the Claimant had raised concerns about working outside of normal hours.

[182]The complaint failed on the basis that the Claimant did not suggest a step which we thought it would have been reasonable for the Respondent to take. The step indicated in the List of Issues was reducing his workload by 30 to 50%. The Claimant’s formal case was that this adjustment should have been made in 2018, but as we have already noted, he said in evidence that he did not have any workload difficulties at that point. He can really only have been contending for the adjustment to be made from 2020.

[183]The Claimant did not make clear how that adjustment would have worked in practice in relation to the requirement to prepare files for court twice per month to a fixed deadline. There were three things we noted about that: 183.1. First, changing the Claimant’s overall workload by 30 to 50%, perhaps to give him more time to work on files for Court submission, would have fundamentally changed the relationship between the parties and would not have been reasonable. This is doubtless what Employment Judge Broughton had in mind at the last Case Management Hearing when commenting on the proposed adjustment. The Claimant at no point suggested that he was willing to reduce his pay proportionately to reflect such a reduction. 183.2. Secondly, what was needed was an OH appointment (or appointments) so that the Respondent could get clear advice on first, whether any workload adjustment would, in fact, be rendered unnecessary by improved technology, and secondly if it was not, precisely where workload adjustments could be made. As we have said several times, the Claimant frustrated that process. Mrs Hyatt may well have been right when she submitted that the 20% reduction in report writing had been done without a referral to OH, but that was no longer part of the Claimant’s role. 183.3. Thirdly, no other reasonable adjustment was put to the Respondent’s witnesses for them to comment upon. Whilst reasonable adjustments can be suggested by a claimant as late as the final hearing, they can only be considered by the Tribunal in its deliberations and decision-making if the Respondent has had a chance to deal with them – Project Management Institute v Latif.

[184]Because the step suggested by the Claimant was not reasonable for the Respondent to take, the complaint of failure to make reasonable adjustments failed.

[185]Strictly speaking, questions of time limits did not arise, but we considered anyway what the time limit position would have been had we upheld any of the complaints which were presented out of time.

[186]We begin with the complaints relating to the commissioning of a disciplinary investigation and Mr Wade’s alleged conduct at the investigation meeting (complaints 24.3 to 24.5 in the List of Issues) and that relating to Ms Edwards being rude and dismissive in the disciplinary hearing (complaint 24.6). It would not have been difficult to find that they constituted conduct extending over a period ending with any in-time complaint that had been upheld. This was because they all effectively flowed from the same disciplinary investigation. We would in any event in all likelihood have extended time, on the basis that all of the events in question were very well documented so that there was little evidential prejudice to the Respondent in these respects.

[187]The position would have been different for the indirect discrimination and reasonable adjustments complaints relating to workload, and the connected harassment complaints relating to removal and refusal of reasonable adjustments. This was for the following reasons.

[188]When did time start to run for the indirect discrimination and reasonable adjustments complaints? We agreed with the Respondent that it was from when the Claimant says it first refused to adjust his workload, namely at the latest in 2020. We agree that simply repeating the same request would not have set time running again. This was in the category, on the Claimant’s case, of the Respondent having a policy or practice from a particular point that had continuing effects, rather than being repeated acts of discrimination. For reasonable adjustments purposes, the Claimant could reasonably have expected the Respondent to make the adjustment he contended for within a few months of him first raising it, being the time it would have taken for the Respondent to obtain relevant OH (and any other) advice, work out its implications and implement it. In short, time started to run at some point in 2020 or possibly from early in 2021. We could be no more specific than that, but for these purposes that was specific enough.

[189]We would not have found that these matters represented conduct extending over a period ending with the later events concerning the disciplinary process because first, the subject matter was entirely different, secondly there was a very long time gap between them, and thirdly there were different people involved. Mr Clark was not involved in the disciplinary investigation or anything that flowed from it.

[190]We would not have extended time either: 190.1. The Claimant was aware of the right to bring claims and of time limits, though he did not know what they were at the time. 190.2. He could have obtained the details of the time limit online. 190.3. It was a very long delay. 190.4. It was not adequately explained. The Claimant told us he was drinking to manage the issues, but we have no evidence supporting any suggestion that this affected his ability to present a Claim. Moreover, it was not a satisfactory explanation of the delay to say that he would not have brought any claim at all had the disciplinary issue not arisen. 190.5. There was prejudice to the Respondent occasioned by the long delay, as Mr McHugh submitted, in that the notes of the supervision meetings between the Claimant and Mr Clark, which may well have shed light on the content of their discussions about the core issue of workload, were destroyed in 2021. Of course that was not the Claimant’s fault, but had he brought his Claim in 2020 or even early 2021, that prejudice would not have existed.

[191]The indirect discrimination complaint relating to workload and the reasonable adjustment complaint relating to the same would have failed on that basis also, as would the related harassment complaints. Other matters

[192]Given our conclusions on the substantive complaints, there was no need for us to address the disputed questions of disability and knowledge of disability.

Summary

[193]For the reasons given above, we concluded that the Respondent did not contravene section 39 of the Equality Act 2010 by discriminating against the Claimant because of something arising in consequence of disability by: 193.1. Issuing him with a written warning on 19 September 2023. 193.2. Moving him to an alternative department in September 2023. 193.3. Not permitting him to raise a grievance in December 2023. 193.4. Refusing to reconsider that decision.

[194]We also concluded that the Respondent did not contravene section 39 by indirectly discriminating against the Claimant in the application of either of the following PCPs: 194.1. The requirement or expectation to complete a certain amount of work in contractual hours. 194.2. The requirement to appeal a disciplinary outcome within 5 working days of the date of the outcome.

[195]The Respondent did not contravene section 39 by failing to make reasonable adjustments in relation to the first PCP above.

[196]The Respondent did not contravene section 39 by victimising the Claimant in relation to any of the following: 196.1. Refusing to hear his grievance on 27 December 2023. 196.2. Confirming on 27 December 2023 that he was not permitted to appeal the final written warning out of time. 196.3. Not responding to the letter sent by the Claimant’s solicitor on 17 January 2024. 196.4. On 22 May 2024, not providing certain documents in response to the Claimant’s subject access request.

[197]The Respondent did not contravene section 40 of the Equality Act 2010 by harassing the Claimant as follows: 197.1. Removing reasonable adjustments in 2018. 197.2. The Claimant being degraded by continually asking Joseph Clark (from 2018) and investigating officers (from 2021 to September 2023) for adjustments, without success. 197.3. Conducting three investigations into the same disciplinary allegation with the Claimant repeatedly explaining the impact of his dyslexia and how this contributed to the words he used in an email dated 6 September 2021. 197.4. Saying to the Claimant in an investigation meeting in March 2023, “if you can prove it, Basil” when the Claimant was explaining that it was his dyslexia and difficulty in explaining himself to others in words that led to the 6 September 2021 email. 197.5. Andy Wade rolling his eyes at the Claimant when the Claimant said he had dyslexia and that this caused him to write the email on 6 September 2021. 197.6. Jamie-Ann Edwards being generally rude and dismissive towards the Claimant’s dyslexia in the disciplinary meeting on 7 and 14 September 2023 and making the Claimant feel as though he was putting it on or using it as an excuse. 197.7. Moving the Claimant out of his department and changing his job role. 197.8. Not allowing the Claimant to raise a formal grievance in December 2023. 197.9. Not allowing the Claimant an opportunity to appeal that decision. 197.10. Ignoring the Claimant’s request for reconsideration of that decision. 197.11. Ignoring the Claimant’s solicitors’ letter dated 17 January 2024.

[198]All of the Claimant’s complaints were dismissed accordingly.