Mr S L Lemanski v Coventry University Higher Education Corporation: 1307979/2022

EMPLOYMENT TRIBUNALS

Case No 1307979/2022

Between

Mr S L LemanskiClaimant

Coventry University Higher Education CorporationRespondent

Before

Employment Judge Maxwell

In person for claimant

Ms Smeaton (instructed by Counsel) for respondent

Date 22 June 2026

JUDGMENT

[1]The Claimant's unfair dismissal claim (ordinary and automatic) is not well founded and is dismissed.

[2]The Claimant's protected disclosure detriment claim is not well founded and is dismissed.

[3]The Claimant's health and safety detriment claim is not well founded and is dismissed.

[4]The Claimant's discrimination arising from disability claim is not well founded and is dismissed.

[5]The Claimant's reasonable adjustments claim is not well founded and is dismissed.

[6]The Claimant's harassment claim is not well founded and is dismissed.

[7]The Claimant's claim of victimisation at [12.2.1] is dismissed on withdrawal.

[8]Insofar as it was not withdrawn, the Claimant's victimisation claim is not well founded and is dismissed.

[9]The Claimant's claim of less favourable treatment as a part-time worker at [13.1.1] is dismissed on withdrawal.

[10]Insofar as it was not withdrawn, the Claimant's claim of less favourable treatment as a part-time worker is not well-founded and is dismissed.

REASONS

[1]We were provided with an agreed bundle of documents running to page number 2040.

[2]The following witnesses gave witness statements and oral evidence:2.1 Stuart Lemanski, the Claimant;

2.2 Linda Ryan, Governor;

2.3 Patricia Ashman, Associate Head of the School of Engineering;

2.4 Caroline Lambert, Head of the School of Engineering;

2.5 Wendy Garner, Head of the School of Mechanical, Aerospace and Automotive;

2.6 Gemma Bailey, People Advisor;

2.7 Steve Galliford, Vice Provost for Education;

2.8 Joanne Oguzie, Director of Partnering – Academic & Research;

2.9 Karen Lawrence, Head of Safety & Security;

2.10 Lousie Walden, People Director;

2.11 Michael Fitzpatrick, Lloyds Register Foundation Chair in Structural Integrity and Systems Performance;

2.12 Raymond Farmer, now retired formerly Academic Dean of Engineering, Environment and Computing.

[3]We also had the benefit of:3.1 the Claimant's skeleton argument;

3.2 the Respondent's opening note;

3.3 the Respondent's table summarising the Claimant’s grievances;

3.4 both parties’ written closing submissions. Procedural matters Day 1

[4]EJ Connolly’s case management order, made following a hearing on 28 October 2024, directed the Respondent to prepare a final hearing bundle with the claim, response and relevant Tribunal orders at the front. The bundle prepared by the Respondent did not comply with this order. Whilst there was a section at the beginning for pleadings and case management, the last document in this section was notice of a preliminary hearing on 29 April 2024. Perusal of the orders to be found there did not reveal a list of issues and the case management process appeared far from complete. This omission prompted the Judge to consult the Tribunal’s file and require the administration to source documents from the email inbox. When this was raised at the start of the final hearing, Counsel indicated that much of the missing material could be found towards the end of the hearing bundle (which ran to over 2000 pages) interspersed with the documentary evidence. This was unsatisfactory, especially in circumstances where the index itself ran to 27 pages. The proper course, if the Respondent elected not to comply with the Tribunal’s order because it wished to maintain the existing page numbering, would have been to include a separate section of supplemental pleadings and case management orders at the end of the bundle, together with a prominent note in the index at the end of the first section to indicate where the missing documents could be found. Had the Respondent followed this course, judicial time would not have been wasted.

[5]Pursuant to the order made by EJ Connolly, which was the culmination of an extensive exercise in the case management process of clarifying the issues arising on the Claimant’s claim, the Respondent sent a final version of the list of issues to the Tribunal on 11 November 2024. A minor and non-material amendment was made to this by agreement between the parties and sent to the Tribunal on 20 January 2025. Both parties confirmed at the outset of the final hearing that this document correctly reflected the issues for determination.

[6]The Respondent had been unable to send a copy of the hearing bundle to the Claimant as a single PDF file, because the compression algorithm used by its provider had corrupted this. Instead, it sent the bundle in two halves. The same problem had not arisen with the Tribunal document upload centre. The Claimant said this would cause him difficulty during the hearing, when trying to find pages in the second half (i.e. because the embedded pagination would not match the page numbering in the PDF). Following a discussion about this, the Claimant said he would try to use a free trial of PDF software to combine the two PDFs into one. He was to do this during the afternoon on day 1 whilst the Tribunal was reading. In the event he was unsuccessful, then he was to contact the Respondent’s solicitor and it would try sending the bundle to him by way of a different digital service.

[7]The Tribunal indicated that it intended to follow the timetable set out in EJ Connolly’s order. This included a non-sitting day to be allocated. On 16 January 2026, the Claimant had written to the Tribunal asking to be excused from attending on 2 February 2026 because of a medical appointment. He emphasised that he did not wish the hearing to be postponed. The relevant date was the day before closing submissions. A decision was made, with the parties’ agreement, for 2 February 2026 to be the non-sitting day. The Claimant would be able to attend his appointment and both parties would have an opportunity to take stock before making their closing submissions.

[8]The timetable included 5 days for the evidence of the Respondent’s witnesses. The greater part of this time would be given over to the Claimant for cross examination. The Respondent was calling 11 witnesses, which tended to suggest that two or three would need to be heard from on any given day. The parties had agreed an appropriate sequence between themselves.

[9]During our discussion in this regard, the Claimant took issue with the Respondent referring to witness availability and annual leave, as being a relevant consideration. He suggested that an earlier final hearing had been postponed because one of the Respondent’s witnesses was not available for a single day. This seemed most unlikely. Parties are not expected to have all of their witnesses available for every day of a long listing, such as in the present case. It would seem more likely if an earlier proposed final hearing was postponed due to witness non-availability, it was because a relevant witness was not available at any point during that trial window. The Judge also explained that it was a matter for a party to decide the order in which it called its witnesses.

[10]The Judge spent some time sketching out the process by which witness evidence would be received and the amount of time available, in particular for cross-examination. The Claimant was asked whether he had prepared questions for the Respondent’s witnesses. He indicated these were contained within a large volume of paperwork next to him on the desk, which appeared to equate to a lever arch file. The Claimant said this set of documents included the witness statements and was not, therefore, solely his questions. Nonetheless, given the Respondent’s witness statements ran to circa 140 pages, the volume of his questions appeared considerable. The Judge said it seemed likely the Claimant had more questions, perhaps many more, than there would be time for him to ask and receive answers. The time allocation in this matter was considerable and appeared proportionate to the issues arising on the claim. It would be necessary for both parties to tailor their questions to the amount of time available. To that end, the Claimant was urged to review his questions and identify the most important matters, being sure to prioritise those.

[11]The Judge emphasised that it was incumbent upon the parties to draw the Tribunal’s attention to relevant parts of documents during the hearing, in particular through cross-examination and their closing submissions. The Tribunal would not trawl through the bundle of documents, reading that in its entirety from cover to cover.

[12]The Tribunal JVS system was not operating properly. It was not possible to allow remote observation, by the Respondent’s witnesses, on either day 1 or day 2 of the hearing. The Respondent also sought permission for one witness, who is resident in the Isle of Man, to attend remotely in the event of travel difficulties caused by bad weather. The Claimant opposed this course, saying that because of his autism he was reliant upon visual cues to understand what people were saying and this would be impaired by the use of video. Whilst such visual information might be important for general communication and the maintaining of good interpersonal relationships, it was not obvious that the Claimant would be put at a disadvantage when engaged in the more formal process of asking questions and listening to answers during cross examination. If the choice were between on the one hand, denying the Respondent the opportunity to rely upon the evidence of the witness at all and on the other, requiring the Claimant to cross-examine by video, the interests of justice would likely call for the latter. Having expressed this provisional view, we did not at that stage make a ruling, as the Respondent’s intention was still for the witness to attend in person.

[13]The Respondent drew the Tribunal’s attention to the Claimant’s skeleton argument. In connection with his claim under the PTW, many more alleged detriments were set out then appeared in the list of issues. When the Claimant was asked to comment on this, he said these were not put forward as claims upon which adjudication was expected, they were set out for context. The Judge indicated that it would be a matter for the Tribunal to determine the extent to which it explored background matters. The primary focus would be upon the claims in the list of issues, which was itself very lengthy. Day 4

[14]On day 4, the Claimant began to cross-examine the Respondent’s witnesses. During the morning session, it appeared matters were proceeding in accordance with the previously agreed timetable. Shortly before the lunch adjournment, the Claimant indicated that he was hopeful of being finished with Mrs Ashman before that point was reached. In the event, that did not happen and the Claimant said he had a few more questions. The Claimant’s assessment in this regard proved not to be accurate. He continued with Mrs Ashman until circa 3:15pm. The Judge had reminded the Claimant about the passage of time and that if he spent more time asking questions of an earlier witness, there would be less opportunity for him to do so with later witnesses. When we did get onto the next witness, Mrs Lawrence, the Claimant sought to compensate for the lack of time by asking his questions in a rapid manner. He was assisted by a very concise and direct approach on her part to answering him. We sat a little later than had originally been envisaged, so he might finish. There was no time for any evidence from Mr Farmer on day 4. The Judge invited the Claimant to reflect on his experience this day when asking questions of Mr Farmer and the other witness due to give evidence on day 5. He would need to consider which questions to ask given the amount of time available, rather than trying to fit in more by speaking quickly. At this stage, the Claimant said he had more questions for the earlier witnesses. He appeared to invite a departure from the timetable, saying it had been set by the Respondent. The Judge pointed out this had been discussed and agreed at the beginning of the hearing. Nonetheless, we invited Counsel for the Respondent to explore the availability of her witnesses in case it were necessary to make adjustments. We were, however, reluctant to contemplate a substantial amendment to the timetable. We were not confident in the Claimant’s assessment about the amount of time he might need to ask questions of later witnesses and it was important to avoid a scenario in which a large number of individuals were called to give evidence at the end of the hearing, with only a limited opportunity for them to be asked questions. Even if it transpired the Claimant did not have many questions for them, it might take him longer to ask these than he believed and / or the Tribunal may need to explore matters Day 5

[15]There was a further discussion about the timetable at the beginning of day 5, following which the Tribunal decided to adhere to that which had been previously agreed. Despite the Claimant saying he had fewer questions for the later witnesses, when we explored and added up his individual estimates, there was little if any time to spare. We also took into account the extent to which several witnesses were named by the Claimant as alleged perpetrators in the list of issues. The more frequently they appeared, the more likely there would be a need for them to be challenged on their evidence by the Claimant.

[16]Whilst the Claimant’s disability or other traits may have predisposed him to prepare a large number of questions and to wish to work through matters with each witness in a most comprehensive and meticulous fashion, it did not follow that it would be a reasonable adjustment simply to allow him to proceed in that way, not least because the case would almost certainly go part heard. A proportionate amount of time had been allocated, taking into account the need to make adjustments for the Claimant. Save unless something unexpected happened, it was in the interests of justice to follow the agreed timetable. This would necessitate the Claimant editing his questions and asking fewer. This is a challenge faced by many unrepresented litigants.

[17]The Judge reminded the Claimant that his questions should focus on the matters the Tribunal had to decide, as set out in the list of issues. Many of the questions the Claimant asked, involved the witness being invited to accept the Claimant’s perspective was reasonable, if they took as their starting point several factual propositions with which they did not agree. The Judge indicated that the answers given to such questions may not carry much weight and the Claimant ought instead to challenge witnesses on the disputed facts and their alleged wrongdoing. At the end of the Claimant's cross examination of each witness, where it appeared the Claimant’s case per the list of issues had not been put, the Judge directed the witness to the relevant allegation or part in the list of issues and invited their comment. Day 6

[18]In an email sent late on day 5 and received by the Tribunal early on day 6, the Claimant applied to amend the list of issues, to allege a new basis upon which his dismissal was unfair, namely that there had been a breach of the Respondent’s procedure because his line manager had been excluded. The Judge expressed a provisional view that whilst it was often helpful for claimants to indicate the points that would be made about fairness within ERA section 98(4), this may be unnecessary and did not limit the claim. There plainly was an unfair dismissal claim before the Tribunal and it would need to consider fairness in all the circumstances. Rather than losing time that could otherwise be used to hear witness evidence, the Judge indicated the parties could address the Tribunal on this point in closing submissions.

[19]In the course of cross-examination, the Claimant put to Ms Walden that she and Mrs Ashman had colluded to decline the Claimant’s application for a career break and terminate his employment, because he was a part-time worker. The Claimant then applied to amend the list of issues to add such complaint, saying it had not been included before because he had only learned of this after disclosure and witness statements were exchanged. The Judge explained that the list of issues was intended to reflect the Claimant’s claim form. Given the Claimant was saying he had not been aware of this matter before, it seemed unlikely it would be in his claim. In response to this, the Claimant merely referred to the text in his claim form where he said he had been treated less favourably because he was a part-time worker. The Judge explained that was insufficient and the detail of his complaint had to come from his particulars of claim, or by subsequent amendment. Given the matter was not already before the Tribunal, the Claimant would need to apply to amend his claim if he wished to add this. The Judge expressed a provisional view that it was very late to be seeking to amend the claim, disclosure and the exchange of witness statements had taken place long before the hearing began, and it did not appear likely the Claimant could say this complaint emerged only from the responses given to him in crossexamination. The Judge also reminded the parties that time lost hearing and deliberating on applications, would not then be available for witness evidence. In the event the Claimant decided not to pursue an amendment application. Day 7

[20]As the case went on, it became apparent the Claimant had taken on board not merely the Tribunal’s encouragement to adjust the number of his questions to fit the time available, but also the way in which he asked them. The need for the Judge to intervene decreased markedly. The Claimant would sometimes begin to ask a question and then recognise himself that this was not something the witness could properly comment on or it was a point more appropriate for his closing submissions. Day 8

[21]The witness evidence finished at the end of day 8. There was then a discussion about proceedings the following week. Day 9 would, as planned, be a non-sitting day, giving the parties the opportunity to take stock and prepare their closing submissions.

[22]The Judge spent some time working through the list of issues again, offering a further explanation of the component parts of the various legal wrongs alleged by the Claimant and how these fitted together. The Claimant was encouraged to focus on factual matters relevant to the various issues, rather than case law and the like, although it was made clear that he could address us on the law if he wished

[23]Unsurprisingly, the Claimant indicated that it was his intention to put forward written closing submissions. It was explained that he was entitled to do so, but under no obligation

[24]Ms Smeaton suggested the parties exchange their written closing submissions at 9 am on day 10, with oral representations starting two hours later at 11 am, hers being likely to last about 30 minutes. Following a discussion with the Claimant, we agreed to proceed as suggested, save that the Claimant would not be required to make his oral submissions immediately after Ms Smeaton finished, rather he could address us at 2 pm. On this basis, the Claimant would have two hours to consider the Respondent’s written submissions before Ms Smeaton spoke and then another hour and a half plus lunch, before he himself addressed us. Inevitably, the Claimant would be reading much with which he disagreed, and we encouraged him to focus on what he wished to put forward rather than becoming sidetracked by trying to respond to each and every point Ms Smeaton was advancing. Day 10

[25]Closing submissions proceeded as previously agreed. The Tribunal reserved its decision. Facts Witness Evidence

Facts

[26]We were satisfied that all witnesses were doing their best to give an accurate account of events, based on their current recollection. In the Claimant's case, on a number of occasions, we came to the conclusion that his recall was mistaken or his perception of events unrealistic. This was not, however, an indication of a lack of honesty on his part. The passage of time inevitably takes its toll on the ability of witnesses to recall matters. Heated exchanges and emotion will often detract from objectivity. The Claimant strongly disagreed with a number of decisions that were made and found it difficult to accept these could have been arrived at in good faith. As a result, he tended to look for adverse motives to explain the same, rather than contemplating the possibility of genuine disagreement. When faced with material disputes of fact, where possible we looked to the contemporaneous documentary evidence.

[27]Even where we did have correspondence passing between the parties at the time, this did not mean there was no dispute. Whilst there could be no disagreement about the words appearing on the page, their meaning was often contested. On many occasions, the Claimant misinterpreted documents, as a result of focusing on particular words or a sentence, without considering the text as a whole or looking at the context within which it had been written. As far as the Claimant's own correspondence was concerned, as his disagreement with the Respondent became more protracted, he had a growing tendency to use exaggerated language and could also be aggressive, threatening or rude. Policies

[28]The Respondent’s disciplinary procedure included: 3. INVESTIGATING DISCIPLINARY CONCERNS AND NOTIFYING THE EMPLOYEE When it becomes clear that there are grounds for invoking this procedure, the Line Manager should make contact with the People Team and agree the plan of action. The employee involved should be informed of the concern as soon as possible and that action may be taken, which could include further investigation into the concern. The employee’s Line Manager will normally advise the employee of the concern and that, subject to any further investigation, there may be a case for formal disciplinary action. There may be occasions where it is not appropriate for the Line Manager to have this conversation and a manager of equal or higher seniority will be asked to speak with the employee. … Where an investigation is required, it will normally be carried out by the individual’s Line Manager with the support of the People Team. However, in some circumstances this may be inappropriate e.g. where technical skills or knowledge is required to understand the complexity or seriousness of the misconduct involved or where there is a perceived or real conflict. In such cases, the People Team will be responsible for identifying an independent investigator, with appropriate skills, to conduct the investigation and produce a report, for the Line Manager, detailing the findings. … 8. FORMAL DISCIPLINARY ACTION Where a disciplinary concern has been identified, which it is deemed unsuitable to be dealt with under informal action, the Line Manager will need to take formal action. The Line Manager should discuss this with the People Team in the first instance. In some cases concerns at this stage will need to be investigated further prior to instigating formal action. Please refer to Section 3 for more detailed information regarding investigations. … Reasonable notice will be given to the employee of a formal hearing (ideally not less than 5 working days, though this could be less in some serious misconduct or gross misconduct cases), and this notice must be in writing, and should include the details indicated at 8.1.2 below. This is to enable the employee to arrange to be accompanied if they choose and to allow sufficient time for preparation for the hearing. It is the employee’s responsibility to ensure the availability of their chosen companion. Prior to the hearing, and where appropriate, further relevant information will be provided to the employee, as indicated at 8.1.3 below, and the employee will also be required to provide relevant information to the appropriate People Team representative. Whilst all parties should endeavour to adhere to these timescales, they may be varied in appropriate circumstances (for the purposes of this procedure working days are regarded as Monday to Friday). … 8.1.3 Exchange of information Where possible, no less than 3 working days before the hearing, the employee will be provided with the following information: - copies of any written statements or other documents (e.g. the management case, policies or procedures) that will be referred to by the manager bringing the case against the employee during the hearing. - the names of any witnesses who are to be called to give evidence. … 8.2.5 Disciplinary Dismissal … - In cases where the Panel’s recommendation to the Vice-Chancellor is dismissal without notice, and the Vice-Chancellor, or such other member of staff to whom the Vice-Chancellor has delegated his authority in this matter acting on his behalf, approves the recommendation the employee will not have the opportunity to make representations in advance of the decision but will retain the right to appeal against the dismissal (see Section 10)

[29]The Respondent's grievance procedure included: 4.1 Employee Responsibilities: The University expects all employees to take responsibility for conducting themselves in a professional and considerate manner. […] Employees should accept the manager’s right to manage and be able to distinguish the difference between this and a genuine grievance about the treatment they have received. If an employee is found to have submitted a malicious grievance or if there is any evidence of victimisation of anyone involved in the process, they may be subject to disciplinary action. […] 10.1 […] Where the grievance arises from a specific incident or event the employee should attempt to deal with their concerns as soon as possible after the event to ensure an early and effective resolution. Concerns left to fester will undoubtedly be more difficult to resolve in the longer term. Ideally the employee should address the problem within 10 working days and certainly within no more than 2-3 months of the incident or event concerned. It is, however, recognised that some grievances result from a build-up of issues rather than one single event. Employees are encouraged to discuss concerns with the individual involved at the earliest possible stage and before they become a big problem. […] The People Team can advise if mediation is a possible way forward, taking into account all relevant factors within the grievance as well as the cost of mediation. Mediation is voluntary and therefore will only be successful if both parties are willing to participate. Mediation involves the appointment of a qualified mediator who is able to help people in dispute reach agreement. Mediation can be particularly helpful in situations involving interpersonal relationships. Disability

[30]The Claimant has suffered with intermittent stress, anxiety and depression. On 4 December 2015, the Claimant’s GP noted he had been suffering with a stressrelated problem, was feeling better and intended to reduce the number of days on which he worked as well as trying to move his workplace closer to home. The Claimant reported stress again in March 2016. In April 2016 the GP recorded anxiety and depression. Further entries for stress, anxiety and depression or low mood appear in the Claimant’s medical records thereafter. He was prescribed antidepressant medication in the periods March 2016 to September 2017, July 2019 to September 2020, December 2021, and from February 2022.

[31]Whilst the Claimant's witness statement refers to him having a “nervous breakdown” on more than one occasion, we were not referred to use of that formulation by his GP or any other medical practitioner. At such times, our conclusion is that the Claimant was suffering more than usual with stress, anxiety and depression.

[32]The Claimant underwent an assessment and received a diagnosis of autistic spectrum disorder (“ASD”) on 5 May 2023. The parties agree that ASD is a lifelong condition and the fact of the Claimant being diagnosed when he was, does not mean the condition only began then.

[33]The assessment report includes extensive notes of the reported history, going back to the Claimant's childhood. Whilst Dr Dein does not say, expressly, that these various matters tend to support the diagnosis made, it seems to us there would be little reason for the inclusion of this material if that were not so. We have, therefore, proceeded on the basis that the reported matters were influenced by the Claimant's ASD. Dr Dein’s report included: Autism Spectrum Disorder ICD11 code 6A02.0 (With mild or no impairment of functional language and without Disorder of Intellectual Development) … - Stuart experienced difficulties in his places of work due to unclear instructions, due to people moving the goal post and not doing exactly as promised. He found it very difficult to cope with inconsistencies in communication. … - At school breaktimes, Stuart would join in games organised by (a group of around six) children but would get very upset if he thought that someone had cheated. … - Stuart’s conversation was ‘very direct and to the point’. … - Stuart takes things literally. For instance, at Cambridge University he was informed that the department did not struggle to obtain funding for research. Stuart took this to mean that they would definitely access funding to extend his fixed term contract. He was very disappointed when this did not materialise. … - Stuart would not recognise that someone was upset through their non- verbal gestures unless they were crying or shouting. … 2. Insistence on sameness […] - He didn’t like change, but once the change had occurred, he would get very attached to it. - He didn’t like any change to his routine. Stuart would sulk if this happened. … He ‘likes things to be done properly’. … - He generally likes to have time to plan something, rather than to do it spontaneously. … Opinion Stuart clearly demonstrated and described deficits in reciprocal social communication and social interaction as well as restrictive, repetitive, and stereo type patterns of behaviours/interest/activities. This was confirmed by his father, as being present from an early age. Diagnosis Autism Spectrum Disorder

[34]In representations prepared for this litigation, the Claimant cited material from the International Classification of Diseases (“ICD”) for ASD, including at ICD-11: Disruptive behaviour with aggressive outbursts (explosive rages) may also be a prominent feature of Autism Spectrum Disorder. Among individuals with Autism Spectrum Disorder, such outbursts are often associated with a specific trigger (e.g., a change in routine, aversive sensory stimulation, anxiety, or rigidity when the individual’s thoughts or behaviour sequences are interrupted), rather than reflecting an intention to be defiant, provocative, or spiteful, as is more typical of Oppositional Defiant Disorder.

[35]The medical evidence before us did not suggest the Claimant was prone to behaviour such as cited in the above extract as a result of his ASD. Dr Dein’s report did not include any propensity for disruptive behaviour with aggressive outbursts. The reference in ICD-11 does not tell us about the Claimant. The traits of one autistic person may differ markedly from another, there being a spectrum in this regard.

[36]The Respondent admits the Claimant was a disabled person at all material times by reason of the cumulative effect of ASD, anxiety and depression. It does not admit that any of these impairments in isolation would amount to a disability. Employment History

[37]The Claimant began his employment with the Respondent university on 1 October 2014, as a Senior Lecturer in the Faculty of Engineering, Environment and Computing at its Coventry campus. On joining the Respondent, the Claimant did not say that he had ASD, anxiety or depression. He was subject to a pre-employment occupational health (“OH”) assessment, which did not identify any mental health issues or neurodiversity.

[38]The Claimant and his family live near Cambridge, where his wife is an academic. He did, therefore, have a very long commute to work in Coventry. From an early point, the Claimant was dissatisfied with the split in his work between teaching and research. The Claimant wished to do less of the former and more of the latter. He believed the amount of teaching he had to do was not what had been agreed when he accepted the job.

[39]In February 2016, the Claimant wrote to Mr Lees, the Head of Department, asking to reduce his contract to working 2 or 3 days a week, saying he was struggling with his health and had recently been too ill to drive to Coventry. The subject line of his email was “struggling with life”. In March 2016, the Claimant wrote to Mr Lees to say that he had been prescribed antidepressant medication and advised by his GP not to work more than two days a week for the next month. He said he had also been told not to drive long distances and suggested he work two days a week at home or at TWI (a site in Cambridge).

[40]The Respondent agreed to the Claimant’s request to vary his hours. A letter was sent on 13 April 2016, notifying him that his working pattern would now be 14 hours and 36 minutes, based on two days a week (i.e. 0.4 FTE). The Claimant’s pay was reduced proportionately.

[41]Mrs Ashman became the Claimant’s line manager in 2016. By that point he was already employed on a part-time basis. Mrs Ashman’s understanding was that this arrangement was intended to support the Claimant, by reducing the need for him to travel to Coventry.

[42]In his witness statement, the Claimant alleged that Mrs Ashman was jealous and resentful toward him because he worked part-time. He said she had told him he was lucky to work part-time, as she had sought to do this several years earlier and had to resign her employment in order to spend more time with her children. In her oral evidence, Mrs Ashman refuted this. She said she had two long periods of employment with the Respondent of circa 11 years. The break came when she was on maternity leave, because at that time the Respondent proposed a generous voluntary redundancy package, which she applied for. This also allowed her to accompany her husband when he moved to America. Subsequently, when they returned to the UK, the Respondent contacted Mrs Ashman and asked if she wished to work for it again, saying she could do so on a part-time basis. Mrs Ashman characterised the Respondent as having been very supportive. We accepted her evidence on this. Part-time working is very common in the University. The Claimant’s fractional contract provided no reason for Mrs Ashman to feel jealousy or resentment towards him. The Claimant’s belief in this regard would seem likely to be an after the event rationalisation, as a result of decisions being made with which he strongly disagreed. We do not accept Mrs Ashman said to the Claimant he was not busy because he only worked part-time, or that he was lucky to work part-time or made any other statements of that sort. The Claimant’s working pattern was wholly unremarkable. The Claimant has either misunderstood or mis-recollected their conversations about this. Given the Claimant wrote his witness statement some 8 years after the event, it would be unsurprising if memories had faded.

[43]The Claimant’s perception is that his workload in 2017 was equivalent to 3 days per week (i.e. 0.6) rather than 2. This was his subjective opinion about the amount of work he had to do, rather than a figure derived mathematically from objective data. The Claimant was not alone in believing at some times that his workload was more than his fraction might suggest. Whilst Mrs Ashman was the Claimant’s line manager, she was not responsible for managing his workload, rather this was dealt with by the Deputy Head of School, Mr Poote.

[44]The Claimant believes his relationship with Mrs Ashman deteriorated in mid2017, which he attributes to him being a part-time worker. There was a change which occurred at about this time. In the earlier part of their time working together, the Claimant frequently visited Mrs Ashman for informal discussions after he had finished his work. A point came when she sought to reduce these. When challenged on this in cross examination, Mrs Ashman said she had become overwhelmed by their late-night chats and did start to tell him that she was too busy. She had her own young family and needed to get home. She felt her workload was above 1.0 (i.e. 100%) at this time. She sought to put in place professional boundaries and this had nothing to do with anything else (i.e. the fact of him being a part-time worker or any other unlawful reason). We accepted Mrs Ashman’s evidence on this.

[45]On 8 June 2017, the Claimant replied to a chasing email sent (by a person who was not his line manager) to a large number of supervisors. reminding them of their need to complete three chapters of an online course by a particular date. The Claimant’s response included various complaints. He also wrote : I am not the only person who feels this way (I'm probably the only person who is aspergers enough to actually say it so bluntly).

[46]The Claimant did not have a diagnosis at this time, although he had begun to suspect he may be autistic. The Claimant’s son had been experiencing difficulties at school and following a lengthy assessment, had received a diagnosis of autism. During this assessment process, the Claimant had learned of relevant traits and began to see them in himself. Whilst the Claimant told Mrs Ashman about his son’s autism, he did not share with her his growing belief that he too may be autistic. The Claimant’s recollection in this regard (i.e. that he did tell her) is wrong. He would, however, go on to tell a later line manager, with whom he shared a more open relationship, what he believed about himself.

[47]In September 2017, the Claimant wrote to Mr Johnson, the Research Development Executive at the Respondent’s Research Development Unit, explaining that his family would be travelling to South Africa in September 2018 and he wished to undertake research whilst there, in the hope that he would not have to take unpaid leave or resign from the Respondent. To that end, the Claimant proposed applying for an Engineering and Physical Sciences Research Council (“EPSRC”) travel grant to carry out impact testing on energy absorbing structures, possibly in connection with cycle helmets, at Cape Town University. As well as being an engineer, the Claimant is also a keen cyclist.

[48]The Respondent did not have a site in South Africa. There were no existing plans to start carrying out research there. The Claimant may have previously contemplated exploring the area he proposed, but his email to Mr Johnson and the steps he subsequently took were motivated by the prospect of his family relocating in September 2018 because of his wife’s work. She had secured the opportunity to carry out research in South Africa, whilst remaining employed by Cambridge University.

[49]The fact of Cambridge University having facilitated his wife being able to work in South Africa, is likely to have contributed to a belief on the part of the Claimant that the Respondent should do the same for him. This would appear consistent with the Claimant’s insistence on sameness, as noted in the report of Dr Dein.

[50]There was a significant volume of correspondence passing between the Claimant and Respondent in connection with his attempts to arrange matters such that he might continue in paid employment with the Respondent, whilst in South Africa. This prompted him to both prepare a research proposal and indicate he would apply for a career break. Pursuing these two different options in tandem was an unusual approach, which caused a degree of confusion on the part of those involved in responding to or deciding on the same. The Claimant could not remain in paid employment with the Respondent and have a career break at the same time. Employment with a recognised institution was also one of the eligibility rules maintained by EPSRC.

[51]The Respondent scrutinises research grant applications before they are submitted to the funder. This is to ensure their quality. The Respondent wished to avoid a situation in which it submitted a large number of research funding applications, which were then unsuccessful because they did not meet the required standard. The Respondent sought to ensure research grant applications were strong before they were put forward to the funder. In the way the Claimant was proceeding, there was an element of the cart being put before the horse. The ordinary procedure for research was a proposal, internal approval, external success and only then would practical arrangements including travel be arranged. Here, the Claimant’s travel to South Africa was a done deal, he was trying to put in place research arrangements that would fit with this.

[52]Mr Fitzpatrick was one of those who reviewed the Claimant’s draft research proposal. He thought it fell well below the required standard. On 29 March 2018, he wrote to a colleague, Ms Gaura: Hi, would you have a look at this? I think that it’s weak and unlikely to succeed, but in this case it might be better for EPSRC to let him know that...

[53]On 9 April 2018, Ms Gaura replied to Mr Fitzpatrick about the Claimant’s research proposal: Generally we would not let this application through. It lacks robustness in all areas and the PI is not well placed either. I understand it is a special case, as I have interacted in the past with the PI. If he is not in a rush to submit, we may be able to coach Stuart to fix at least some things, although it won’t improve the application other than marginally.

[54]On 10 May 2018, Mrs Ashman wrote to the Claimant suggesting that he keep his calendar up to date to show his working days, ensure visibility of his 0.4 working pattern and switch on his out of office replies on non-working days. The Claimant replied to this, raising concerns about his current workload and asking for advice on which activities he should prioritise. Mrs Ashman replied at some length, with suggestions about priorities and also saying: We all certainly are experiencing a bottle neck at this time of year with deadlines all clashing and it is a difficult time for all of us juggling work priorities whether we are 0.4fte it 1.0fte. I hope I have shown you flexibility all year to let you flex your 0.4fte to suit your family life so that you have a bit extra to give when it is required.

[55]Mrs Ashman’s experience was that there would be workload peaks and troughs in the course of the academic year and the Claimant was currently encountering the former. The working model for 1.0 FTE was 1,500 hours. These would not, however, be distributed evenly throughout the academic year. Similar considerations applied, pro rata, to those on fractional contracts. In this way, whilst an individual might work more than their fraction suggested in a given week, this evened-out over time.

[56]Also on 10 May 2018, the Claimant wrote to Mr Fitzpatrick applying for a career break: I am writing to apply for a career break from 1st September 2018. I understand that the minimum period for the career break is 1 year. I have attached the scheme details for your ease of reference. The purpose of the break is to accompany my family overseas and look a er my children while my wife is undertaking ESRC funded research in the humanities. I realise that this is less notice than is usually required (6 months) but in mitigation you, Ashley and Patricia (my line manager) have all known about the trip since at least autumn 2017 and I am not planned into any undergraduate delivery for the 2018-2019 academic year. A career break is not my preferred option. I had hoped (and still do) that I can continue to be employed and play a useful role for Coventry whilst overseas by (for example) hosting ﬁeld trips, applying for an EPSRC OTG, continuing to supervise PhD students, preparing video lectures in impact mechanics, and by continuing to act as IM for about half a dozen of our courses. However, none of these options have been “ﬁrmed up” and I do not have any agreement in writing. I therefore feel the need to have an “option b” in the event that Ashley changes his mind and tells me that he doesn’t feel there is enough beneﬁt to what I would do to justify employing me whilst overseas.

[57]On 16 May 2018, Mrs Ashman wrote to Ms Walden and Mr Lees about the Claimant’s application for a career break: I would appreciate your advice as to what are our options here? This lecturer is 0.4fte and is supporting his wife on a 1 year secondment abroad. His main function with us was to do tier 4 visits at an off campus location (TWI), this will no longer continue and we will have to put in alternate arrangements that will be essentially permanent and so on his return there will no longer be a requirement for him to do this role. We are generally struggling to find alternative responsibilities for him that match his skills for example we can longer ask him to teach or support students as this has not worked out well for him or the students. My preferred choice is that we don't approve the career break as he will no longer be able to continue with his primary responsibilities of being on site at our Partner and move to terminate his employment on the basis that he cannot fulfill his primary responsibilities at TWI. You will see that his preferred option is to continue working for us but remotely from South Africa though I personally feel that his proposals of OIL projects and student field trips does not justify continuing to salary him 0.4fte of an SL role.

[58]Ms Walden responded to Mrs Ashman, seeking clarification of the business reasons for not supporting a career break. Mrs Ashman answered in the following way: Stuart is LIW and has a desk at TWI in Cambridge which he uses 1 day a week and works on a number of mainly remote activities with us 1 day a week. At TWI he provides local support to our PHD students there and ensures tier 4 compliance. If he departs then clearly he cannot continue to do this as it requires physical presence. We will need to put in support for the PHD students and for continuity and quality of supervision this would be difficult with a different supervisor every year for effectively 3 years especially ie Suart, ANOther and then Stuart again. We need to prioritise the student experience of I believe 9 PHD's and their research outcomes and ensure the client TWI is satisfied with the continuity of care and support we are providing them. I can get statements to this effect from Mike Fitzpatrick and Xiang Zhang, who are the PHD Directors, if you think this is enough grounds to decline the career break and terminate employment.

[59]The Claimant suggested Mrs Ashman’s emails showed that she was attempting to secure his dismissal because he was a part-time worker. We do not agree. Our finding is Mrs Ashman was concerned to ensure continuity for the students the Claimant was supervising if he took a career break. She also believed it may be difficult to accommodate the Claimant on return. There had previously been tension between the Claimant’s desire to carry out research and the Respondent allocating him teaching duties. She foresaw this becoming a problem again when the Claimant came back from South Africa.

[60]Later in the same email chain, Ms Walden referred to “tax problems” for the University if the Claimant were employed in South Africa. The Claimant challenged her evidence on this, his suggestion being it was a smokescreen (our word rather than the Claimant's) and her true, undisclosed, objection was his status as a part-time worker or some other unlawful reason. We accepted the evidence of Ms Walden. The prospect of there being some tax implications as a result of employing the Claimant in South Africa, is entirely plausible. Had overseas working been approved, the Respondent would have to ensure the Claimant’s employment had a proper legal basis in South Africa and that any tax liability was properly accounted for and discharged. The Claimant says that cannot be so and relies upon his wife’s example. We do not agree. We have no evidence of the steps taken by Cambridge University to ensure that his wife was lawfully employed in South Africa. The existence of tax implications does not of course mean that they must represent an insurmountable obstacle.

[61]The Claimant placed considerable reliance upon an email from Mr Johnson of 23 May 2018 in connection with his travel grant application. He saw this as clear evidence of managers conspiring against him. Mr Johnson wrote: I have run out of stalling tactics - Stuart is after a decision on his EPSRC Travel grant application - which is currently sitting with Mike. I understand there are other processes ongoing in the Faculty which connect to this - leave of absence ... Can you please consult and tell me what to do about this, and preferably tell Stuart whats going on

[62]We were not persuaded by the Claimant’s interpretation of this email or the negative meaning he puts upon the words “stalling tactics”. Read in context, it is quite clear that Mr Johnson is being pressed by the Claimant for an outcome on his travel grant application, but Mr Johnson was himself waiting to be told by others what decision had been made and he did not feel he could keep putting the Claimant off. Whilst the Claimant's statement included that Mr Johnson spoke of a reluctance to submit grant applications for part-time academics as they had a lower success rate, there was no contemporaneous documentary evidence to support that suggestion and in any event, he was not one of those reviewing the Claimant's application. Notably, at a very early stage when the Claimant first indicated his intention to make a travel grant application, Mr Johnson provided Ms Zhang with the EPSRC eligibility criteria. In response to that, Ms Zhang asked whether academics on a part-time contract could apply for grants. Our conclusion is this factor was not seen as an obstacle, as if it had been his application would not likely have been sent to the internal reviewers.

[63]One of the ideas the Claimant had been exploring to create work he could do whilst in South Africa for the Respondent, was running two Cape Town field trips. On 4 June 2018, the Claimant was told this was approved and he was invited to discuss making further arrangements. This activity would have occupied a small number of days and it could, of course, only be taken further if the Claimant remained employed by the Respondent during his time in South Africa.

[64]By an email of 7 June 2018, Mrs Ashman advised the Claimant that the Respondent would not agree to continue employing him whilst he was in South Africa. His career break application was, however, approved: We have been exploring many options to enable your planned trip to South Africa as a member of our faculty to support your wife’s research sabbatical. Unfortunately there is no mechanism to allow for us to continue to keep you on salary whilst you are overseas and there would be tax implications for the University in South Africa in trying to do so. In reviewing the options available to us in order to try and support your application for a career break, we are in a position to approve this however the implications on our business of you having the career break requires us to make adjustments to staff workload planning to enable us to accommodate it. As such, in approving the request this means we will be putting in place alternative, permanent arrangements regarding TWI. The reason we feel that we need to put in place permanent arrangements is to ensure continuity of care for the PHD students as well as tier 4 compliance. In addition to continuity of care these arrangements will be more cost effective and more importantly enable us to redeploy your skills and capabilities in a way more commensurate with your status as a Senior Lecturer and in line with our business needs. On your return from career break you will be given leadership of 102MAE or 104MAE with a suitable lecturing and tutorial element and other duties to be determined on your return that will bring your workload up to 0.4FTE. For example, if it is 102MAE you will teach the solid mechanics element in semester 1 and semester 2 and manage the tutorial team. Therefore, your role will be 100% teaching at 0.4FTE and you will be expected to be located back in Coventry 2 days a week.

[65]On 7 June 2018, the Claimant wrote to Mr Lees and Mr Fitzpatrick, about the decision communicated to him by Mrs Ashman: Please see Patricia’s e-mail below. I am obviously very surprised by the content of this e-mail as this is the ﬁrst me that anyone has communicated this to me – either formally or informally. The university has been aware of this for almost a year now, and until Patricia’s e-mail came through, I have been working under the impression that I would continue to be working whilst in South Africa (running ﬁeld trips, giving OIL lectures from the University of Cape Town, continuing to supervise PhD students and moderating Coventry modules). I feel that it is highly inappropriate for such detailed arrangements (to the extent of even deciding what courses I will be leading upon my return) to have been made without someone at least having the courtesy to discuss this with me. Indeed, Patricia’s line management of me has been incredibly negative over the last 9 months. I have frequently been working in excess of the 0.4FTE for which I am paid, and whilst I accept that this is often part and parcel of an academic career, I have had very little accommodation from Patricia who has set up meetings in Coventry that are not on my working days, has e-mailed me a 3 minutes to midnight asking me to get in early the next day, etc. It is also particularly poor resource management on her part that I have spent a signiﬁcant amount of me over the last 7 months putting the groundwork in place to deliver ﬁeld trips, to include OIL into 208MAE, and to write applications for research grants. It makes something of a mockery of Patricia’s comments about being cost-eﬀective that working months of my time will have been wasted on these eﬀorts because she saw ﬁt to exclude me from any discussions about my future up until l this point. Furthermore, it would seem to be directly contradictory to Coventry’s claimed intention to “internationalise the curriculum” and to “ensure that all students have an OIL experience” that when an opportunity to meet many of those objectives arises it is so readily turned down. Sadly, it seems that Patricia’s whole approach has been to ﬁnd problems, rather than to grasp this opportunity to deliver well-prepared and sustainable international experiences to our students. The issue that Patricia raises about “tax implications” is also a non- sequitur. The fact that this has not been a problem for Cambridge University rather suggests that any such issues are relatively easily overcome. In a worst case scenario, I could brieﬂy return to the UK part way through the trip (for example to moderate the January exams) so as not to be overseas for more than 6 months. If I have to take a career break during my me in South Africa, then I will do that and spend the me focussing on my family. Indeed, I had already e- mailed Michael to ask for this op on as a backstop in case ﬁeld trips did not get approved. Of most concern to me personally and professionally is the statement that I will be re-deployed in a 100% teaching role upon my return. This is clearly not what I (or anyone) would expect from an academic role, and rather makes a mockery of the eﬀorts I have made un l now to ensure that I would be REF’able. Furthermore, I have PhD students that I am currently supervising. Patricia talks about continuity of care, yet seems to feel that I should simply drop my commitment to these students when I go to South Africa and upon my return? Patricia knows that my main interests lie in research, and I suspect that the 100% teaching post being oﬀered upon my return is an attempt by Patricia to manipulate a situation so that I will resign my post. Indeed, I had a meeting with her last year where she stated that she felt I should resign my post if I wanted to go to South Africa. In light of all this, I would like to take this opportunity to formally ask for a new line manager. (Ashley, I had already alluded to this when we talked on 17th May). Hopefully this will be possible without me needing to raise a formal grievance against Patricia. I was previously line managed by Christophe Bastien, but when the FRCs were set up, he became part of M&T and I became part of MME. Patricia then took over responsibility for my line management. Since Christophe and I are now both part of the FTC research centre, I hope that you would consider it appropriate if I returned to being line managed by Christophe (if he agrees), and that we can then review with a clean slate what I do with my me in South Africa and what I do upon my return.

[66]The Claimant took the decision very badly. He believed the outcome was arrived at by Mrs Ashman and others acting in bad faith because of his status as a parttime worker. We do not agree. We accepted Mrs Ashman’s evidence in this regard. Part-time working arrangements were wholly unremarkable within this employer. Mrs Ashman did not believe there was a business case to support the Claimant's continued employment by the Respondent whilst he was in South Africa and she had been advised by Ms Walden there may be tax implications if he were. Whilst the Claimant might be satisfied that a convenient role could be fashioned for him out of various ad hoc tasks, we are unsurprised that Mrs Ashman was not. Had the Respondent been convinced there was a good business case for employing the Claimant in South Africa, advice would have been taken on the tax position. That was not the case, however, and the Claimant’s career break application was accepted. Mrs Ashman believed it was necessary to put in place permanent alternative arrangements for the students the Claimant had been supervising, rather than chopping and changing, as and when the Claimant came and went. This would mean someone else taking over his work at TWI in Cambridge. Making a decision on this and about what the Claimant would do on his return, was part of the basis upon which his career break had been approved. Mrs Ashman’s view in this regard was not influenced by his status as a part-time worker.

[67]In advance of them having a meeting to discuss matters, the Claimant wrote to Mr Lees on 11 June 2018. He said he had lost trust in Mrs Ashman and did not feel it was appropriate to continue reporting to her as line manager. He said he had informally requested this on 17 May 2018. With respect to his South Africa trip, the Claimant said “if Patricia's e-mail represents Coventry's official position that they do not want to employ me whilst overseas, then I am willing to take the career break that is proposed.” We pause to note the Claimant’s speaks of the career break as though the Respondent proposed it to him, rather than as was the case, he applied for it. The Claimant complained about being required to return to a teaching role. The Claimant's lengthy email also included: Knowing which aspects of the job that I (as someone on the autistic spectrum) have in the past found the most stressful, I am obviously very concerned that these were the very aspects which Patricia chose to highlight as the main aspects of the role she proposed for me after my return.

[68]On 12 June 2018, the Claimant wrote to Mr Fitzpatrick regarding his application for an EPSRC travel grant. He suggested that if this were approved he could be employed for part of the time he was in South Africa and then take a career break for the other part. Mr Fitzpatrick replied on 14 June 2018, saying he could not approve this until there was clarity over the Claimant's career break application, as the Claimant could not hold a travel grant whilst on such a break.

[69]We accepted the evidence given by the Respondent’s witnesses. The grant proposal was not progressed because the Claimant was taking a career break and an EPSRC grant could not be obtained in such circumstances. The Claimant says he only sought a career break as an alternative to his employment in South Africa and / or grant application being refused. The position arrived at, however, was that the Claimant's application for a career break was granted and Mr Fitzpatrick did not believe a grant proposal could be pursued in such circumstances. If there was any confusion in this regard on the part of Mr Fitzpatrick, it was genuine and understandable. In reality, however, even if the Claimant had not applied for a career break, it is most unlikely his grant application would have been progressed, as Mr Fitzpatrick and the other reviewers thought it to be weak. None of this had anything to do with the Claimant being part time.

[70]The Claimant complains that the time spent by him exploring opportunities to work in South Africa had been wasted. Whilst it may be appropriate for someone employed as a lecturer to explore research possibilities, the Claimant had a specific workload allocated to him and the Respondent could, reasonably, expect discharging that to be his priority. The amount of time the Claimant devoted to working up South Africa-related proposals would appear to have been influenced primarily by his family circumstances. Any resultant increase in workload was of his own making.

[71]The Claimant's expectations of being employed by the Respondent whilst in South Africa have echoes of the matter he reported to the psychiatrist in 2023, with respect to Cambridge University. In both cases, he appears to have made assumptions about his employment that went beyond what he had been told. This dispute also seems tied-in with his expectations of sameness (i.e. a belief that the Respondent should have done for him what Cambridge did for his wife) and reacting badly if he thought someone was “cheating” or “moving the goalposts”. Whilst that is not how we view the Respondent's approach to this matter, we find it was the Claimant's.

[72]As for the Claimant's comparators: Dr Griffin’s proposal was of a high standard and he secured an award from the Australian Government; Dr Kanarachos secured employment with another employer in Egypt; and there was almost no information about Professor Walton. There was no evidence of a full-time employee arranging overseas travel, putting forward a weak research proposal and simultaneously applying for a career break.

[73]On 30 October 2018, the Respondent wrote to the Claimant to confirm his career break, which was to commence on 1 September 2018 and end on 31 August 2019. The letter said these dates have been notified to the People Team. Subsequently, it appears that Mr Lees agreed with the Claimant to put back the start of the Claimant’s career break to 14 September 2018, but he did not update the People Team, with the result the Claimant was paid for 2 weeks in September he did not work.

[74]As planned, the Claimant went with his family to South Africa.

[75]In March 2019, the Claimant wrote to Mrs Ashman about the marking of a dissertation project, pointing out that he was on leave and saying he had been locked out of the Respondent’s IT systems. Mrs Ashman replied, apologising and saying it was inappropriate for such a request to have been made of a colleague on leave. Mrs Ashman asked the Claimant to say if he wished her to pursue the IT matter on his behalf. The Claimant did not take her up on this offer.

[76]On 12 September 2019, the Respondent wrote to the Claimant saying that he had been on a career break from 1 September 2018 until 31 August 2019 and had been expected back on 2 September 2019. The Claimant had not attended a return to work meeting on 9 September 2019 with Mrs Ashman. The Claimant was advised his absence was treated as unauthorised. The Claimant replied on 13 September 2019, saying he thought there had been a mistake, as his career break commenced on 15 September 2018 and would not end until 14 September 2019. He said this was confirmed in emails. Mr Larter of the people team responded the same day, thanking the Claimant and saying they would request salary payment from that date. He also confirmed the Claimant was returning on the basis of 0.2 FTE faculty (i.e. teaching) and 0.2 research.

[77]When he came back to work, the Claimant’s line management was moved to Ms Lambert, the Deputy Head of School. The Claimant enjoyed a good relationship with Ms Lambert.

[78]The Claimant told Ms Lambert of his son’s autism assessment and his belief that he himself may be autistic. The Claimant did not, however, suggest this caused any difficulty at work or that he needed adjustments to be made. In his closing submissions, the Claimant said that unlike other managers, Ms Lambert made allowances for his autism. This was to misunderstand what happened and her evidence about this. The Claimant had put the proposition to Ms Lambert that she made allowances for him being abrupt. Her reply was that she thought this was fair, she then went on immediately to say that she would have done the same for an employee who was not neurodiverse. On that basis, this was not a different approach for the Claimant because he had told Ms Lambert he believed he may be autistic. She also agreed with the Claimant when he suggested that a large percentage of the academics in maths and engineering might be somewhere on the autistic spectrum.

[79]The Claimant’s employment continued in a satisfactory manner for many months. He had a good rapport with his manager and was satisfied with the split in his work.

[80]In March 2020, the UK went into lockdown as a result of the Covid pandemic.

[81]On 9 March 2020, the Respondent published Covid 19 guidance for managers. The University remained open at this time. Amongst other things, the guidance addressed the scenario whereby individual employees who were otherwise well did not want to come to work because they were worried about catching Covid. The guidance said this would not, generally, be a sufficient reason not to attend work. The guidance called for an employee’s concerns to be explored and allayed insofar as this was possible. The Respondent sought to avoid the need for any formal action.

[82]On 16 March 2020, the Respondent announced that face-to-face teaching would be suspended from 20 March 2020. Whilst the Claimant suggested this step had been taken earlier at Cambridge, the evidence did not bear that out.

[83]On 20 March 2020, an email from Professor Perrin to all students and staff, emphasised the importance of staying connected and maintaining communication, both to discuss work and ensure well-being. He said there would be weekly check-ins, by Teams, Skype, phone or in person for those working on campus. This would be for about 15 minutes. The Claimant wrote to Ms Lambert about this email in somewhat intemperate terms, objecting to the proposed check-ins and the Respondent’s recent guidance to managers: Sorry – I’m just adding to your workload by checking in, since the FTC seems to be of the opinion that we’re a bunch of workshy cretins who need to be monitored (see below). Since we’re checking in and raising concerns, I would like to take this opportunity to point out how seriously senior management have mishandled this. (NB I am talking about the VC and senior team – not anyone in the school) On 14th March I got the “Covid19 Advice for Managers” memo. It was pretty unequivocal that: “All of our locations in the UK remain open for business as usual and staff and students are expected to attend as normal.” …and also that… “As a general rule, the fear of contracting an illness is not sufficient reason for failing to attend work and the University can require colleagues concerned about contracting the coronavirus to attend work if needed and can withhold pay if necessary.” I’m sure you will appreciate the sarcasm when I note what amazing foresight our highly valued (or at least well-remunerated) senior leaders displayed here. It clearly showed us how much they value the health and safety of their staff. Right up until the end of last week, I was required to deliver tutorials, theta hours, and student supervisions in person. The staff won’t forget how little the upper management actually care about us. I’m not the only person who feels this way (I’m not even in a minority…) but maybe the only person who is stupid enough to mention it in an e- mail.

[84]Ms Lambert was very concerned by the Claimant’s email. She wrote to him almost immediately: I'm genuinely appalled at that statement you received - can I ask who from? We received very clear guidance as line managers on the 10th March, directly from the top, that was almost the exact opposite from the statements you are making below. I have attached it. I have not seen that as a message at all and think that Ray, at least, would be also be I have not seen that as a message at all and think that Ray, at least, would be also be shocked to know that message came out to staff. I'm not asking you to 'tell tales' but if we have areas of the business that are making up their own rules, in the climate we are in at the moment, this could be disastrous.

[85]From their later exchange, it became apparent the Claimant had already seen and was commenting on the same guidance as Ms Lambert attached. They had read the material and taken entirely different things from it. The Claimant's approach to this document and others the parties disagreed about, often involved taking a sentence or passage in isolation and out of context.

[86]From June 2020, the Respondent was looking at how it might resume in person teaching. A Covid 19 Return to Campus Procedure was created. As part of this, employees had to complete an individual risk assessment.

[87]Following Government guidance, in July 2020, the Respondent published guidance for managers - Supporting your teams in returning to campus. The introduction included: The UK Government has recently announced details in relation to easing lockdown restrictions and preparing for returning to the workplace. A dedicated University Group Team has been established, led by Prof Ian Marshall, Deputy Vice-Chancellor and Chief Operating Officer (DVC COO), with the overall aim to pro-actively manage this transition through adoption of a planned, phased and controlled approach ensuring the continued safety and well-being of our workforce. In support, decisions will be informed by UK Government and Public Health England guidance and the Health & Safety Executive requirements. Returns to hubs and offices internationally will be informed by the relevant government and Public Health England advice. We will ensure that our plans enable us to respond to a further national or local lockdown quickly, safely and with minimum business disruption.

[88]In September 2020, the Respondent published its Covid 19 overarching risk assessment. This provided for further risk assessments to be completed for each building and department operated by the Respondent. The University had consulted with the recognised trade unions and local managers were encouraged to consult with their staff. Cleaning, hand washing and hygiene procedures were introduced. Help would be provided to those working at home. 2m social distancing would be enforced where possible. Where that distance could not be obtained, other measures would be taken. Screens and barriers were erected. All staff would be required to complete an individual risk assessment, as part of a process intended to protect those who were vulnerable. Actions would be necessary where someone had symptoms or there was a need to self-isolate. Reassurance to staff and students would be provided and steps taken to ensure they understood what was expected of them. Mask wearing was not mandatory but would be expected where social distancing was not possible. Masks would not be required in classrooms or office spaces, but people could choose to wear them. There was also recognition that mask wearing may be difficult for some with disabilities. A separate policy on the reopening of buildings and business recovery was published. Guidance for building managers was prepared. A considerable volume of detailed documentary instruction was generated by the Respondent at this time. This reflects a careful and thorough approach on the part of many senior managers.

[89]Along with the vast majority of other higher education bodies, the Respondent resumed face-to-face teaching in September. On 2 September 2020, Professor Marshall, Deputy Vice Chancellor and Chief Operating Officer wrote to all employees of the University: Having reviewed all available advice from the UK Government and Public Health England, it is clear that face coverings are seen as primarily for the protection of others, rather than the protection of the wearer. Face coverings are not a replacement for other ways of managing your safety – such as increased hand washing or maintaining 2m social distancing. We expect all colleagues and students to wear a face covering when indoors in communal areas on campus. They are not mandatory but they are expected where social distancing is not possible. We are asking this of all colleagues and students as we feel we all have a responsibility to do whatever we can to protect each other. In line with official advice, face coverings are not required in classrooms, other formal study spaces and office spaces where social distancing is possible, but some people may choose to wear them and that individual decision should also be respected. We are mindful that wearing a face covering may create difficulties for some students or colleagues who need to lip read to support their understanding of what is being said. All of our teaching space has been risk assessed and meets social distancing requirements and therefore we don’t envisage a need for our lecturers to wear face coverings in the classroom. We appreciate that some people will have a valid reason not to wear a face covering and ask all colleagues and students to be mindful and respectful of this. Throughout this pandemic, we have been consistent that we will be led by the official advice from the government and Public Health officials. Current UK Government guidance states that, as of 27 August, wearing face coverings is mandatory by law in certain places including: - public transport - transport hubs - shops and supermarkets View the full list on the government website. This means if you’re travelling to or from campus on public transport, you must wear one, and you must wear one inside any shops or takeaway food outlets on campus. The law allows for exemptions for people with an age, health or disability reason for not wearing a face covering. People can be fined for failing to comply with this law. Face coverings are not classed as personal protective equipment (PPE). There is government guidance on what constitutes a face covering, when to wear them, and how to make your own face coverings.

[90]The Claimant responded to this email by sending an email to all of the Respondent’s employees: I very nearly sent this to all MAA, but decided that a quieter approach would perhaps cause less trouble... I response to Ian Marshall's e-mail earlier this afternoon, can you please clarify whether face coverings will be mandatory within all communal areas of ECB? I would obviously expect this to be the case. Legislation mandates face coverings in shops, public transport and other equivalent situations where we would meet people with whom we are not normally in close social proximity. Ian's comments that "We expect all colleagues and students to wear a face covering when indoors in communal areas on campus" appear inconsistent with the next sentence that states "They are not mandatory but they are expected where social distancing is not possible". Whilst I am sure that you are too tactful to comment on my following observation, I have been very disappointed by the tone of messages coming from the very highly paid university senior management throughout this crisis. Universities are obviously a high-risk environment. After all, we are not isolated oﬃce workers who interact with only a half dozen colleagues in a day - we will be mixing with several hundred students from each year group, who have returned to Coventry from all over the country (and indeed all over the world). I would expect that as a responsible employer with everyone's safety as ﬁrst priority, the University would be promoting the highest standards of safety, not just the minimum recommendations required by legislation - I will certainly expect any students I am teaching face to face to wear a face covering, and I would similarly continue to wear mine during any such teaching.

[91]The Claimant’s evidence was that he sent this email by accident to all of the Respondent’s employees and had intended to send it only to Mrs Garner. He points to his opening sentence in support of this. Realistically, it is unlikely to be the case that the all staff email address came to be in the Claimant’s email by a keyboard slip. The Claimant was, clearly, at some point intending to write to all of his colleagues to express his views in this regard and entered the email address for that cohort. The most that could be said, is that the Claimant thought better of such an approach but then forgot to change the recipient’s email address. The question posed at the beginning of the Claimant second paragraph is difficult to understand. Mr Marshall’s email is clear that face coverings would be expected but not mandatory. The Claimant was unhappy that different and lesser precautions were being taken within the University, from those that would be required in some other public spaces. This was, however, consistent with the Government’s guidance for higher education.

[92]This marked the beginning of what would become an irreparable breakdown in trust and confidence between the Claimant and Respondent. The Claimant fundamentally disagreed with a return to face to face teaching.

[93]The Claimant could not accept the adequacy of the Respondent’s response to Covid. Rather than seeing this as a matter upon which different people might, reasonably, differ, the Claimant came to think that those in the Respondent’s management who took a different view from him, did so in bad faith, for reasons of financial gain and / or with callous disregard for the safety and welfare of staff and students alike. This seems to us to have been a blinkered approach. The Claimant does not appear to have attached any weight to the fact that most if not all of those with whom he disagreed, would themselves be exposed to the risks present on campus.

[94]Broadly, there were three principal strands to the Claimant's challenge. Firstly, he suggested the Respondent had failed to comply with UK Government guidance. Secondly, he contended the Government guidance itself, in particular that provided to educational institutions, was insufficient and / or failed to comply with the Health and Safety at Work Act 1974. Thirdly, he argued the Respondent failed to enforce its own Covid rules.

[95]During the hearing, the Judge explained the function of the Tribunal was to determine the Claimant’s claims and it would not be an extensive inquiry into the adequacy of the steps the Respondent took in the pandemic. We do, however, note the Claimant was shown to be wrong about a number of propositions he advanced in connection with the alleged failure by the Respondent to comply with official guidance. In cross-examination, the Claimant was taken to the information provided by the UK Government at different points in time, which were then reflected in measures the Respondent took. In response to this, the Claimant suggested that Cambridge University had gone further and faster. We accepted the Respondent’s evidence, its own approach was consistent with the published guidance and that followed by the vast majority of higher education providers.

[96]The Claimant suggested the Respondent's senior management and those whose job it was to implement a safe system, such as Ms Lawrence, had decided to return to 5 hours of face to face teaching per week, irrespective of the risk to safety, because there was a contractual obligation to students and the Respondent put profits before people. We did not accept this proposition. The Respondent's witnesses gave credible and persuasive evidence in this regard, in particular Ms Lawrence, who:96.1 explained the lengths to which the Respondent had gone to ensure a safe return to face to face teaching;

96.2 explained how the Respondent sought to minimise and mitigate the risks from a return to face to face teaching, she did not purport to eliminate all and any risk in this regard;

96.3 pointed out there were also risks to the students and others from not returning to campus, namely social isolation, which could be especially acute for students who were stranded away from home and family;

96.4 recognised that human behaviour being what it is, there was always likely to be some non-compliance by individuals from time to time, and the Respondent was concerned to ensure high levels of compliance, rather than perfection;

96.5 gave compelling evidence about the effective use of ventilation;

96.6 explained why windows not opening or condensation appearing on them did not establish a lack of sufficient ventilation;

96.7 explained her view that the efficacy of these measures was established by data showing the remarkably low levels of cross-infection which were found to have stemmed from on campus contact.

[97]The Claimant's attack on Ms Lawrence was somewhat superficial. Rather than engaging with the detail of her explanations, he picked up on individual words or phrases found in the vast body of correspondence. One of the words the Claimant alighted upon was “creative”. Rather than reading this as a reference to needing novel solutions to an unprecedented problem, he construed it as meaning something improper (such as in the expression creative accounting). A similar pattern could also be seen in some of what the Claimant wrote to managers at the time. He would highlight words in an email which he found to be objectionable, ignoring what preceded or followed them and provided context or nuance.

[98]Whilst we do not propose to make very detailed findings about the specific measures implemented by the Respondent on campus, there were some points of particular note.

[99]The Respondent is fortunate enough to occupy a very modern purpose-built airconditioned building in Coventry. It was, therefore, possible for the Respondent to turn up the rate at which fresh air was drawn into the building from outside, to such an extent that the air within was no different from the air without. This is what the Respondent did. Very few workplaces or public indoor spaces of any kind, which remained open during the pandemic, would have been able to achieve that level of ventilation. The Claimant pointed to windows that did not open or upon which condensation could be seen. We accept the evidence of the Respondent’s witnesses, to the effect this said nothing about the adequacy of the ventilation, which was not dependent upon air flow through open windows. While some measures in this regard, were taken, these were for reassurance rather than practical effect. The Respondent conducted various risk assessments, at large scale for the University as a whole, and at a lower scale in various different locations. The impression given was one of thoroughness. Limits were set on the numbers in attendance. Guidance was provided on the wearing of masks. The Respondent’s approach to mask wearing was to seek to obtain a high level of compliance, rather than perfection in this regard. We accepted this was a realistic stance in the circumstances, notwithstanding it did not satisfy the Claimant.

[100]Covid and lockdown was a very worrying time for most people. Individual levels of anxiety about this varied considerably. It seems to us the Claimant was acutely worried. It is unlikely there were any measures that would have fully satisfied the Claimant that it was safe or reasonable for him to be required to come to work in person. The Claimant wished to work from home.

[101]Also on 2 September 2020, the Claimant completed am individual Covid 19 risk assessment and sent this to Ms Lambert. This included: Does the employee/worker have an existing mental health condition or are there indications they are having difficulty coping? YES Ongoing mild depression - medicated by Citalopram Does the employee/worker have a physical disability or other condition that may affect their return to work? NO … Does the employee/worker have members of their household who are at risk because they are: a) clinically extremely vulnerable b) clinically vulnerable YES My father is over 70 and currently in remission from cancer. … Mental health Ongoing frustration with condition inadequate IT, and repeated doublespeak/moving of goalposts in communications from University leaders exacerbates this problem IT to repair laptop (battery and USB policy)

[102]Given the answer provided by the Claimant to the question about whether his household included a vulnerable person, it would have been natural to understand his father lived with him. This was not, however, the case. The Claimant’s answer was misleading. His father did not live with him. Having one or more elderly and vulnerable parent, who lived at a separate address, is something that the vast majority of middle-aged people would have been able to say during the pandemic.

[103]We also note what the Claimant wrote about doublespeak and moving the goalposts. Whilst we do not accept the Claimant’s characterisation, as it appears the Respondent adopted a clear position that was consistent with Government guidance at the time, these words did reflect his own subjective view. This in turn, is likely to tie in with his ASD symptoms. The Claimant becomes frustrated when he thinks others are cheating or not doing things properly. Furthermore, the lack of objective justification for his view will not have tempered the frustration he experienced. This reaction influenced the terms in which he subsequently wrote to and engaged with (or not) the Respondent.

[104]By email on 10 September 2020, Mrs Garner distributed a narrated PowerPoint with key information about the approach to Covid in teaching spaces. This included that academic staff facing students should stay at least 2m away from them. They were not to allow students to move closer. And no items were to be passed between people, including pens or paper.

[105]It is likely the Claimant shared his Covid concerns and worries with colleagues between 23 September and 1 October 2020. Given the lack of evidence from the Claimant or elsewhere on this, we can make no findings about what he said, when or to whom.

[106]On 1 October 2020, the Claimant was teaching on campus. In the course of this, he accepted some paperwork from a student. When challenged in cross examination on his failure to follow the guidance he had been given, the Claimant said he could not do his job without taking this step. It was, however, the Claimant’s responsibility to manage this class. If there were things that would have been done ordinarily during a class but these were contrary to the Covid guidance, then the proper approach would appear to be not to do those things. Unfortunately, the student coughed whilst handing the Claimant his paper.

[107]The Claimant was very upset by the coughing incident. He immediately went to see Ms Lambert to complain about what had happened and the working environment being unsafe. Mrs Garner was also present. When he arrived, the Claimant was very angry and swore. Whilst he was addressing Ms Lambert, Mrs Garner became concerned and asked him to calm down. Mrs Garner and Ms Lambert were surprised to hear this had occurred, because they thought the Claimant ought not to have allowed students close enough to him for that to happen. The Claimant began to calm down. He said he did not believe the University’s Covid protocols were being followed and felt unsafe. The Claimant was due to teach another class that afternoon. He asked Mrs Garner what would happen if he refused to teach students face-to-face. Mrs Garner had, as a result of circumstances relating to another employee, spoken to the People Team about this issue. She had been told that such a refusal could be a disciplinary matter, but it would depend on the circumstances, including the employee’s health. Mrs Garner said that “refusing to teach a class face-to-face could amount to a disciplinary matter, although we would not want it to get to that point.”

[108]We do not find that the Claimant said “under the health and safety at work act you cannot force me to work in an unsafe environment". This version of events appears to have emerged for the first time in about October 2021, 12 months after the event, when the Claimant included it in a number of emails. We prefer the recollection of Mrs Garner. She was giving anodyne management advice, in response to a question from the Claimant. She did not threaten him with disciplinary action. The Claimant was in a heightened state on the occasion, which is likely to have impaired his recollection even shortly afterwards. Furthermore, by the time he put forward this version of events, he was involved in an entrenched dispute with the Respondent, had instructed a solicitor and was contemplating litigation.

[109]Later on 1 October 2020 at 1.13pm, the Claimant sent an email to Mrs Garner, Ms Lambert, Mr Farmer and the facilities management staff, entitled Covid 19 protocol violations on ECB ground floor: Walking once along the ground floor area from reception to ECG‐01, I came across almost a dozen people violating our mask wearing regulations in ECB. I was not able to get SID’s from all of them, but here are three that I did. (I am only providing SID’s of the ones who gave me lip and chatback in response to being asked to wear a mask). It seems that we are not even enforcing the H&S protocol that we have. Sid: […] no mask, he left it at home apparently Sid: […] no mask, wrong way on 1 way system, refused to turn around when asked Sid: […] no mask refusal to put one on, later claimed that she was asthmatic, then claimed instead that she was autistic As you can see, me being coughed over by a student earlier today was not an isolated incident ‐ we are failing to provide a safe working environment for our employees. Indeed, this is a structural institutional failing ‐ I was approached and told by a staff member that it was “not my job” to enforce the mask wearing in the building. As I corrected them – Health and Safety is everybody’s responsibility and it is therefore doubly disappointing that I am being reprimanded for doing so.

[110]In addition to sending this email to various others, the Claimant also copied it to his own Hotmail account. At 1.17pm the Claimant wrote: In case you feel you need more evidence, I have just moved up to walk through the 1st ﬂoor. Out of 10 people in the communal area, precisely zero were wearing masks. Most were receptive to being told “excuse me, please could you put your mask on”.

[111]At 1.24pm the Claimant wrote: Except one who took it oﬀ as soon as my back was turned. The then got stroppy when asked for he SID number: …

[112]The Claimant’s agitation at being coughed on and his direct communication style are likely to have influenced the manner in which he approached the various students. Mr Farmer replied at 1.26pm: Thanks for this. All staff should encourage, in a professional and polite manner, students to follow the Covid protocols – social distancing, wearing a face covering in the communal areas in ECB and following the one way systems. I will emphasise this with colleagues again. Of course we have to be aware that some people do have a legitimate reasons not to wear a face covering and we have to respect this.

[113]Ms Barber of the Respondent’s facilities management office had seen the Claimant approaching students and was concerned by how this had been done. She wrote to Mr Farmer, Mrs Garner and Ms Lambert: When I came back from lunch the ECB Receptionist informed me that Stuart Lemanski was going round all the students in the ECB cafe area who were not wearing masks and taking their details in order to report them. When he came back to the Reception area I asked him not to do this as the Student Ambassadors were taking care of this. He said that they obviously weren’t and that it is the responsibility of everyone to ensure that people adhere to the COVID rules. He had a list of the students on his laptop and I was not sure what he was going to do with his list at the time. I saw a girl on her own at the first table and she was trying to put her mask on in between sipping her drink. I went up to her to say that she didn’t need to do that and that if she was eating or drinking then she didn’t need to wear her mask. She got upset and referred to her intervention with Stuart and explained to me that she is on her own, is asthmatic and autistic. I suggested that she get an exemption lanyard and badge from the Student Centre so that she wasn’t challenged in future. She was clearly upset, in tears and had a mild panic attack in front of me. I calmed her down enough to explain to her that the academic should not have challenged her as she was clearly drinking and that I would follow up to address the situation with what he was doing. She had asked me for the details of the Dean prior to this, but she was in such a state that she couldn’t find paper or a pen and I doubt that she could write until she’d calmed down. I took her name and student number, which I can forward to you if required. I stayed with her until she had calmed down and was breathing more easily. I asked if she would be ok now and she said that she would and thanked me for my help. I told her to take care of herself.

[114]The Claimant corresponded with Mr Farmer further that day and the next, asking what disciplinary action would be taken against the students and for a copy of the risk assessment. Mr Farmer replied the matter would be followed up appropriately with students and he sent the Claimant a copy of the requested assessment.

[115]On 3 October 2020, the Claimant sent another email (this time from his Hotmail account) to Mr Farmer, Ms Lambert, Mrs Garner, facilities management and various others: It does unfortunately appear that Coventry is not even following many of its own required local actions (e.g. classroom windows being left open for ventilation), although it does appear that students are by far the worst offenders when it comes to not respecting social distancing and not wearing masks (I’ve already highlighted our institutional failings in not challenging people about this). On the basis of the observed lack of compliance, I remain of the opinion that the University is not providing a safe working environment ‐ particularly for student facing staff. This goes beyond the incident on Thursday where an unmasked student coughed over me ‐ I would go so far as to say that it is a minority of students who are correctly complying with all of the requirements (including maintaining social distance and following the demarcated one‐way systems within the building). It is, perhaps, no surprise that students are lax about CoVid protocols within the department, given the widely‐reported breach of CoVid laws (and lack of common sense) displayed by a large number of other Coventry students. I was disappointed to be threatened (not by you) that “if you refuse to do face to face teaching that would be a disciplinary issue”. I note also the contents of the “guidance to managers” issued at the start of the CoVid pandemic ‐ which explicitly stated that fear of contracting an illness is not sufficient justification not to attend work. However, this goes beyond a simple “fear of contracting an illness” ‐ the University is not providing a safe working environment. I obviously do not need to remind you that the University’s first and foremost responsibility is towards the health and safety of its employees and students. Not the “student experience”. Not the NSS. Not the amount of money the students bring in. (Sorry if it feels that I am labouring the point, but up until now there has been no satisfactory response to any of the concerns raised previously). Obviously I am concerned that by raising my head above the parapet, I am putting my university career at risk (Coventry has a poor reputation for the way it deals with people who “rock the boat”), but it is not reasonable for the University to continue to risk the health and safety of me and other staff (and by extension our families) because the University ill‐advisedly promised students 5 hours of face‐to‐face teaching per week.

[116]Mr Farmer forwarded the Claimant’s email to Mr Marshall and others. Ms Jennings, Group People Partner replied expressing her concerns: Thanks Ray. Happy to look at a response before you send if this would help? I also note ‐ separate to the contents ‐ that he’s emailing from a Hotmail account which is concerning given that these are work related emails. Can you mention this in your response as clearly from a GDPR perspective if discussions of students are included... I will defer to your judgement here of course but I also worry about lecturers challenging students in the manner described below and then describing their reaction in that way / taking IDs? I am very concerned about the potential impact of this behaviour on, for example, students with invisible disabilities. I appreciate he may be very anxious and that this is a difficult time ‐ I wonder whether someone in Karen’s team could sit down with him and go through all the precautions etc?

[117]Notably, as would become typical of the Respondent’s reaction to the Claimant’s email traffic on this matter, the concerns raised related not to the substance of any information the Claimant had disclosed about Covid, but rather the way in which he was conducting or expressing himself.

[118]On 5 October 2020, Mr Farmer wrote to the Claimant, giving him guidance and instruction about proper communication and also seeking to address the concerns that had been raised: Thank for this email. First I must point out that only University email accounts should be used for work communications. This is especially important if confidential information is being shared including any student details. I think it is important to emphasise that the University and the Faculty are following advice from the government to provide a safe and secure working environment for staff. You mention two particular issues which I will address. 1. Ventilation. The ventilations systems in the Faculty buildings have been adjusted to maximise fresh air flow through the buildings. This is effective in minimising transmission given that the level of occupancy in classrooms is less than 50% of normal capacity. In addition cleaning staff ensure that windows in classrooms are open at the beginning of the day and again during second daily room clean. It should be noted in ECB the building management system will automatically close windows if it is raining. When the rain has finished the building management system will re-open windows that were open. The windows on the sloping sides take a little longer to re-open as the rain water has to drain away. 2. Staff and students are expected to wear face coverings in the building. On Friday when I walked building most of the students were wearing face coverings and following social distancing measures. The few that were not wearing face coverings put one on without complaint when I asked them to do so. The adherence to the social distancing measures and use of face coverings is improving. It very important that we take a professional, polite and friendly approach to students who are not wearing a face covering. As I have made clear in all my communications to staff and students some may not be able to wear face coverings and this must be respected. If a student or a member of staff asserts that the cannot use a face covering then this should not be challenged. I will remind staff to keep windows open in classrooms if possible to ensure that they have adequate ventilation. I will also cascade advice regarding vigilance and adherence to social distancing protocols. Also I am sure that conversations with colleagues were not intended to be threatening. Equally the University has to be able to deliver its commitment of 5 hours learning on campus. Our feedback from students and staff about the 5 hours on campus has been positive.

[119]Mr Farmer’s attempts to reassure the Claimant were unsuccessful. On 6 October 2020, the Claimant replied, saying he had copied this email correspondence to his private email address so he had a record that was not dependent on his continued access to the Respondent’s email system. Our finding is the Claimant envisaged he might be dismissed or resign over this issue, as that would seem to be the most likely reason for him not to have access to work email. By this point, the Claimant had started copying in the entire staff body within the department. The Claimant took issue with windows being closed and then went on to say more about his interaction with students on this issue: (2) I am afraid that my experience of asking students to adhere to the CoVid measures put in place was simply very different to yours. I walked around the building again after my emails to you last Thursday and took several photographs of students not wearing face coverings. It is maybe unsurprising that students are more compliant in putting on their face coverings when asked by the Dean, than when asked by a random staff member. Despite a professional and polite request on my part, I got "backchat" from a number of students (these were the ones whose SID's I then demanded and forwarded to you). One of them took the mask off immediately after my back was turned. […] Since your e-mail contains no evidence of concrete action to address the H&S issue, only justification of the existing measures (which are not providing a safe working environment - at least for student-facing staff). Whilst you assert that "feedback from students and staff about the 5 hours on Campus has been positive, most staff I have spoken to are concerned about the risks they are being exposed to. I have therefore filed a report with the HSE. I have copied this current e-mail to MAA, as I would encourage all staff with similar concerns to do the same. They can do so anonymously at the following link: https://www.hse.gov.uk/contact/concerns.htm I am sorry it has come to this and sorry for the difficulties this pandemic is causing you but (given the lack of any concrete action in response to my concerns and faced with the prospect of disciplinary action if I do not continue to risk my health to deliver face-to-face teaching in an unsafe working environment) I feel this is the only option left open to me as my continued employment in an unsafe working environment is untenable.

[120]Mr Farmer replied to the Claimant later that day: I would note that my response did address your concerns, specifically around ventilation and why the windows may not be open; however as you have cited specific rooms I will liaise with relevant colleagues again to ensure there are no known issues with how the ventilation of the building is working. In addition, while I acknowledge your concerns regarding face coverings and one way systems, I have responded to this and the University is doing all it can to reinforce messages to staff and students regarding adherence to the rules and I will reiterate that we must respect colleagues and students who are not able to wear a face covering. Whilst I appreciate that we (staff and students) are all working with new guidelines and parameters in the current climate, colleagues in Estates, Health and Safety and the wider Group have been and continue to work extremely hard to ensure that we remain a COVID secure environment. Clearly, as you have indicated, colleagues have the right to contact the HSE should they wish, however I would strongly encourage anyone to raise these concerns internally first (as you have done) and as I stated in my email to you, I will arrange for a meeting to be set up for us so that we can further discuss these concerns, and I will ask a member of the University’s Health and Safety team to attend. I take the safety of all colleagues within the Faculty very seriously, and am confident in the range of measures we have put in place.

[121]The Claimant wrote further on 7 October 2020. He disagreed that his concerns had been addressed. He said Mr Farmer was doing no more than providing a standard response. Our finding is that the Claimant would only consider his concerns had been addressed, if the Respondent agreed with him. Responding to the Claimant’s concerns, setting out the Respondent’s position and the rationale for this would not satisfy him.

[122]Later that day, the Claimant and Mr Farmer spoke briefly by Teams.

[123]Early on 8 October 2020, the Claimant wrote to Mr Farmer again. He suggested there was a high level of non-compliance with the Respondent’s Covid rules and attached various photos of staff and students he had taken. Mr Farmer was very concerned by the Claimant taking photos in this way without permission. He wrote to the Claimant: Please do not use your Hotmail account for University emails and do not take any further photographs of staﬀ or students in University property without their written permission.

[124]The Claimant replied, saying he was gathering evidence so the University could not deny its lack of compliance. Mr Farmer responded to this, saying it was still not appropriate for the Claimant to take photos of students or staff. The Claimant wrote back to Mr Farmer: If the university is going to continue to force us to attend and teach in a non-Covid-secure environment, and subsequently then attempt to claim otherwise, then it is appropriate (for me as an individual being knowingly placed at risk) to keep evidence of that.

[125]And then a little later: It is necessary to provide incontrovertible proof of continued H&S breaches, and as such is protected under whistleblowing regulations.

[126]Because of the reference to whistleblowing, Mr Farmer sought advice from Ms Jennings. She replied that using the term whistleblowing was not a defence to the Claimant breaching the privacy of staff and students.

[127]Mr Farmer wrote to the Claimant just before 2pm, inviting him to a meeting, at 2.15pm, to discuss his concerns.

[128]At 2.56pm the Claimant wrote saying he had only just got Mr Farmer’s email and was due to teach a class shortly. He said he had raised his concerns through all available channels. He also wrote: Whilst I acknowledge that the university has put in infrastructure that would (for the most part) enable a safe Covid-secure working environment, the lack of compliance by students (and some staff) result in an unsafe Covid‐insecure working environment. This has already affected my family life and my mental health, and the situation cannot continue indefinitely. I have cc’d Katie as she was on the distribution list for the original e‐mail, and (as with previous communications) have also cc’d my personal e‐mail address so that my access to correspondence is not contingent upon my continued access to my university e‐mail account.

[129]Mr Farmer replied: Thank you for your email; I am sorry that you did not pick up my invitation as it would have been useful for us to be able to meet today. I understand that your next working day is Wednesday 14th October and so I will shortly send you a Teams invite which I would be grateful if you could please rearrange existing commitments to accommodate as we need to discuss the concerns you have raised (which as I have already stated, the University takes seriously and is addressing) and my expectations in regards to the manner in which you have raised them. I will reiterate that it is not acceptable to use your personal email address for University business and you must cease to do this. I appreciate that you are finding this a difficult time and would like to remind you of the University's counselling support helpline which you may find useful. It is a free and completely confidential service that can be accessed 24/7 by calling […]. Additionally, we are happy to refer you to Occupational Health should you wish for additional support and any advice that might be relevant to you, and I would also note that we do have the Connections Matter Teams site and Together All both of which have a range of supportive resources.

[130]The Claimant replied, saying he would not attend the meeting: I reiterate that I am not using my personal e-mail for university business. I am only using my personal e-mail to retain a personal copy of our continued correspondence that is not contingent upon my continued access to University email. Since you are inviting Katie Jennings to the meeting, I would prefer this whole matter to be dealt with in writing. I am feeling very stressed and harassed by the current situation, and my mental health has already suffered considerably and I feel like I am almost ready to snap completely. (The cracks are already beginning to show). Under these circumstances, I feel that it would be better that I am able to digest information and take stock before responding, and that is obviously impossible in a live meeting. Indeed, it might be more appropriate if I took some time off work entirely to try to recover my mental health and then we can approach this whole situation from a healthy perspective rather than a tired, stressed, anxious mindset.

[131]On 9 October 2020, Mr Farmer wrote the Claimant: Thank you for your email. I wish to address first your continued use of your personal email in correspondence related to University business. Regardless of your rationale for doing so, this is a breach of both good data protection practice and the University’s Information Security policy, which can be found here and in which I draw your attention to section 3.6 in particular. Therefore, you must cease to copy your personal email address into University correspondence with immediate effect. I must make you aware that failure to comply with this request will be considered a further breach of this policy and we will need to deal with this accordingly. Information in regards to your role at the University -particularly sensitive information involving our students and colleagues - must be handled securely and in line with the requirements of GDPR. This is for your protection so that data breaches do not occur and I would urge you therefore to comply with this. Secondly, I note from your email that you are experiencing difficulties currently with your mental health; I would reiterate the range of support services available as in my previous email and encourage you to make use of these as appropriate; you can also contact Katie for more details of any of these services and how you access them. […] Once you have determined whether you are well enough to work we can discuss the meeting next Wednesday further; we will, if you are in work, need to meet with you in regards to yesterday’s incident so that we can determine an appropriate way forward and prevent any futures incidents of this nature or any more data breaches. I am of course happy to provide you with a written summary following our meeting so that you have time to reflect and will answer any further questions that you have following this. Finally, I would again urge you to seek support from your GP. I appreciate that this is a difficult time and can assure you that all colleagues are working hard to ensure a safe environment.

[132]Because of his concerns about a potential data breach, Mr Farmer referred the matter to the Respondent’s Internal Governance Unit (“IGU”). On 13 October 2020, he was asked to provide a copy of the Claimant’s email.

[133]On 14 October 2020, the Claimant commenced a period of sickness absence. He did not attend the proposed meeting with Mr Farmer. In an email of 19 October 2020 to Ms Lambert, the Claimant said that his GP had doubled the dose of his antidepressants and a trip to occupational health might be helpful when he returned to work. On 20 October 2020, the Claimant told Ms Lambert he had a telephone consultation with his GP that morning and would be signed as fit to work away from the campus. The Claimant said he agreed with this assessment.

[134]The Claimant wrote to Mr Farmer again on 21 October 2020, copying this to his own solicitor: As pointed out, I do not feel that a face to face meeting would be appropriate. The university has damaged my mental health on several occasions during my employment, including causing two nervous breakdowns - which is why even now I can still only work two days a week. As a result of the recent incident where an unmasked student coughed over me (and the subsequent unfortunate behaviour of the management structure in failing to resolve my concerns which precipitated my subsequently feeling the need to obtain photographic proof of the issues which I raised) my mental health has once again taken a turn for the worse (last week my GP has doubled my dose of antidepressants and this week has signed me as only fit to work off- campus). I therefore hope that you would not continue to exacerbate this situation and I would once again request that you please put your issues and proposals in writing. As you will see, in the face of your continued threats, I have not copied my personal e-mail address (although I believe that I would be entitled to do so, as this contains no “sensitive data” as defined by GDPR). I have instead copied my solicitor directly. I would politely urge you that (rather than arguing the nuances of university procedures and legal definitions), you resolve the more urgent (and far more serious) problem that the ECB and BSB are not being operated in a Covid-secure manner (despite the efforts of management and estates). The problems with ventilation and lack of compliance by significant numbers of students (and a few staff) renders the working environment unsafe (particularly for student facing staff). If necessary as a last resort, that should involve closing the buildings and moving teaching online (as was recommended by the SAGE committee). This should not be swept under the carpet - your previous assertions that “we are improving” is not good enough. If someone was operating a piece of engineering machinery in such a way as to risk the health and safety of a large proportion of staff and students, and then continued to operate in an unsafe way despite repeated warnings from numerous staff, this would be urgently addressed as a very serious matter. The university’s duty of care to its staff and students is not removed simply because this situation involves an invisible virus rather than a visible piece of machinery.

[135]Mr Farmer forwarded the Claimant’s email to Ms Jennings, pointing out that he had now copied in his solicitor.

[136]On 23 October 2020, the Claimant wrote to Mr Farmer again. He commented on an email Mr Farmer had sent the previous day to all staff about the need to ensure social distancing, agreed classroom capacities and not allowing students to move their seats closer to one another. On this occasion, the Claimant decided to copy his email to the entirety of the Respondent’s academic body, over 400 individuals. The Claimant repeated the points he had made previously. He also said it was “ironic” that Mr Farmer should have written that afternoon, as the Claimant had just found out one of the students he had taught three weeks previously had tested positive for Covid and this led to the Claimant catching it. He complained about not being informed his student had tested positive. He wrote about the Respondent putting the health and safety of employees and their family members at risk by dismissing or ignoring reports of protocol violations. He went on to say: Indeed, recent missives from the senior management make it appear that this issue is being wilfully ignored. It is for this reason that I reluctantly now feel forced to write publicly – this is health and safety issue that directly affects all staff, and the university management appears not only to be failing in its statutory duty to provide a safe working environment under the Health and Safety at Work Act, but also by apparently sweeping this issue under the carpet they are providing a misleading picture to staff of the risks to which they are being exposed. I am sure that all student‐facing staff would be grateful to hear from you what concrete actions (beyond the platitudes about the current measures which are clearly failing) are being taken to ensure a safe working environment for them.

[137]Mr Farmer was concerned by the Claimant’s report and wished to follow this up. He replied asking for the name of the student who had tested positive, as a matter of urgency. Unfortunately, the Claimant’s reply was not very helpful, he said he did not know the name of the student.

[138]Mr Farmer believed that the Claimant’s email, sent to the entire staff body, had the potential to cause alarm. In the circumstances, Mr Farmer decided to send a public reply: Colleagues, Please can I ask you to raise any concerns you have directly with your line manager or your school management team and do not email the whole Faculty. The health and safety of staff and students are paramount – we take all issues seriously. We continue to work with Estates and colleagues across the University and follow government guidance. The University has a Covid‐19 reporting system (https://livecoventryac.sharepoint.com/sites/coronavirus‐reporting ) and senior colleagues work to communicate with staff and students if there is a requirement to self‐isolate. Any concerns raised, including those raised below, will be investigated swiftly and addressed directly and privately as is appropriate.

[139]The Claimant’s response to Mr Farmer’s email to colleagues inviting them to raise matters privately with their managers, was another public email to the entire staff body setting out his complaints, which included: The ongoing failure to actually deal meaningfully with the issues I have raised, and continual evasion and obfuscation of the underlying issues by senior management leads me to question whether my continued employment at Coventry University is a constructive path to follow – both in terms of my own mental health (which has already suffered significant long‐term damage as a result of my employment here) and the more immediate health risks to myself and my family resulting from the University’s failure in its statutory duty under the Health and Safety at Work Act to provide a safe working environment. I am taking legal advice in relation to this matter, though I am sure that you will not be sad to see me go if I am advised that resigning is the most constructive option for me in these circumstances.

[140]Mr Farmer replied to the Claimant: As I have previously stated the Health and Safety of our staff and students is paramount and we take all issues seriously. We continue to work with Estates and colleagues across the University and follow government guidance. As you have raised your concerns I have responded to these, liaised with appropriate colleagues, advised you of the support services on offer, reminded you of the covid‐19 reporting system and have offered to meet with you. However, I am now writing to ask you to refrain from writing any more public emails as I have received some feedback about these and the negative impact it is having. As such should you have any further correspondence you wish to share with the University regarding your concerns you are asked to address these directly to myself as Dean of the Faculty.

[141]The Claimant replied copying in his solicitor, saying colleagues had expressed their gratitude and no one had made a negative comment to him. He also wrote: Can you also please clarify for me that you are asking me not to make my colleagues publicly aware of Health and Safety issues (i.e. repeated and ongoing systematic failings and breaches of Covid‐safe protocol) which could place their health at risk, and that instead I should only raise it privately with you? I would point out that management has at no point been forthcoming about the failures so far (other than to play down the severity of those failures in response to my public e‐mails). Thus, even if my comments do have a "negative impact", Health and Safety at work is everyone's responsibility ‐ I would not want to be complicit in covering up ongoing issues which place my colleagues at risk as I would not want to live with the consequences if one of them were to become ill (or worse) as a result of my failure to highlight these issues. I am sure that my solictor (cc'd) would have an opinion on the legal position in that regard.

[142]Mr Farmer found responding to the Claimant’s correspondence was beginning to take its toll on his health and well-being. He sought further support from his own line manager and the People Team.

[143]Mr Farmer next wrote to the Claimant on 29 October 2020: I wanted to address your email of 14:35 on Saturday first. Clearly, it would not be appropriate of me to share emails sent by colleagues to me privately, and I would ask you to reflect on the potential impact of the emails you are sending. You will be aware that everyone’s mental health is a key issue at the moment (and, importantly, also a health and safety concern) and therefore, I am asking you again to raise such concerns via the appropriate channel to me as Academic Dean and Katie Jennings as the People Partner for the Faculty - not in public emails. This will ensure that concerns can be resolved via the appropriate University channels. For clarity and the avoidance of doubt, I am not asking you to avoid raising concerns, which we would as always treat seriously and investigate further if necessary, I am asking you not to do so via an all School email or with non University email addresses copied in; this is not appropriate behaviour and if you continue to do you will be in breach of a direct management instruction and this will be dealt with appropriately. In regards to your second email (14:49), I will reiterate that the University has test and trace in place, and are working closely with PHE to ensure that when cases occur contacts are tracked and isolated as appropriate. As there was no need for you to isolate in this instance, you were not contacted; this is in line with normal practice and ensures that very sensitive health information is not shared more widely than necessary. […] We are committed to work with you to address your concerns and enable a return to face to face teaching (a vital part of your role) but do need to underline our expectations that you will behave in a professional manner, in line with the above.

[144]The Claimant replied saying that Mr Farmer was trying to keep the continued failings of the Respondent a secret. The Claimant said that if he did not continue to make staff aware of this, he would be failing in his own duty under the Health and Safety at Work Act. The Claimant said that raising matters through the appropriate channels had resulted in him being subject to threats of disciplinary action. The Claimant concluded: Employees need to be able to trust and have confidence that their management will provide a safe system of work (not just during Covid, but in all matters). Your actions have left me convinced that my health and safety (and that of other employees) has been “thrown under the bus” because the University places a higher priority on delivering 5 hours of face-to-face teaching. I have no doubt that it will do so again when it is operationally expedient.

[145]Not having received a response to his latest email, the Claimant chased Mr Farmer on 10 November 2020.

[146]Also on 10 November 2020, the Claimant made a data subject access request (“DSAR”): As a result of the numerous inaccuracies which I outlined earlier, I now write to make a subject access request for all correspondence relating to or mentioning me or the issues which I have raised that has been sent to or from anyone with management, HR or H&S responsibilities (or admin staff supporting those roles) since 30th September 2020.

[147]Mr Farmer responded to the Claimant on 11 November 2020: 1. If any colleague perceives what they believe to be a health and safety issue then it should be reported through the appropriate channels, which are to their Head of School, the Faculty Operations Manager or a member of the Deanery and not in an email to all staff. This has been re-iterated in an 'All Staff' email and we would of course encourage colleagues to report such concerns. 2. In no way do we wish to adversely affect your mental health. We have referred you to various support services in the University, urged you to consult your GP as appropriate and are also undertaking an OH referral for you to gain some further advice in regards to the situation. 3. As I have previously confirmed, the University wishes to support you during this difficult time. We do also need to ensure that we address concerns with staff as they arise, and taking photos of students and sharing from a personal email address is not considered acceptable behaviour. As you know, we are awaiting OH guidance in regards to our wish to meet with you further regarding this incident and to resolve the current situation given that you have declined to meet with us about this. 4. The University 'Test and Trace' is operating in accordance with PHE guidance and advice. 5. The Health and Safety of staff and students is of the utmost importance to the University. The University is communicating regularly with staff via email and the staff portal to ensure they are aware of how the University is responding to the Covid crisis and the actions they need to take. I will be in further contact once we have received the OH report and understand their advice. I am keen to move forward and appreciate that a continued exchange of emails prior to receiving this may be less helpful in supporting your wellbeing.

[148]A vast exchange of correspondence, in which Mr Farmer had sought to address the Claimant’s concerns, had done nothing whatsoever to reassure him. On the contrary, the Claimant continued to write in ever stronger terms. Unsurprisingly, Mr Farmer thought carrying on in this way was unlikely to assist the Claimant with his mental health.

[149]Separately from the Claimant’s Covid related objections, the Respondent wished for advice on whether there was any health issue or medical reason preventing him from attending campus and any adjustments that might be made to support his return. An occupational health referral was made. The Claimant attended the assessment on 11 November 2020. An occupational health report was provided, which included: Stuart tells me that he suffered with a nervous breakdown in 2016 and since has been on and off on anti-depressants. He claims that he has been having counselling through NHS which has come to an end after 6 sessions. He tells me that he has been working from home and does not want to go back to face to face teaching at this present time. Stuart also tells me that he is on the Autistic spectrum, but this has not been officially diagnosed and he has not required any adjustments at his place of work. 1. Is there a component of the job that the individual is not fit to do? Stuart is fit to undertake all components of his job role. […] 4. Are there any medical reasons that would make it significantly detrimental to the health of the employee to meet with an appropriate manager and/or HR Advisor? Please detail these reasons, including the results of any relevant assessments carried out on the employee There is no reason why Stuart cannot meet with the appropriate manager or HR Advisor. […] 6. Are there any medical reasons that would make it significantly detrimental to the health of the employee, for an appropriate manager and/or HR Advisor to contact the employee in writing or on the telephone? Please detail these reasons including the results of any relevant assessments carried out on the employee. Stuart is not absent from work and tells me that he continues to work from home and communicating via Teams or emails with colleagues and students that he supervisors. […] 9. What is the medical reason that the employee is not fit to be on campus? I am not aware of any medical reason why Stuart is unfit to return to the campus. He has raised as stated above his concerns regarding his wellbeing and contacting COVID-19 due to the University not following guidelines. […] 12. What adjustments should be considered to allow the employee to return to campus? It would be advisable to discuss with Stuart his concerns about being on campus and reassuring him that students will be asked to follow guidelines and classrooms will be provided with good ventilation including being able to open windows. A phase return onto the campus for approx. 3-4 weeks which may give Stuart the confidence and reassurance that safe working practices are being carried out at the University. […]14. the employee states he is on a higher dose of anti-depressant medications. From a medical perspective, is there any impact of this to cognitive functioning that we should be aware of? In your medical opinion are there any reasonable adjustments to make with regards to the change in medication? Stuart states that he is taking prescribed anti-depressants but, in my opinion, this would not impact on is cognitive functioning and no further adjustments would need to be made due to his medication.

15. Would counselling be a method of support for the employee? Stuart claims that he has received a course of 6 counselling sessions through NHS which has now ended. However, I have also referred him for counselling here at Occupational Health which he has agreed. […] 17. What is the likely outcome of ongoing treatment, for example, which conditions are likely to flare up, be completely resolved? Stuart claims that his mental health has had a relapse due to going on campus and seeing what he believes not a safe working environment due to the corona virus.

[150]The report also included an extensive narrative, based on the medical history and Covid concerns reported by the Claimant. We find it was a fair reflection of what the Claimant told the adviser at the time and the opinions she expressed were her own.

[151]The occupational health report was sent to the Respondent on 20 November 2020. It was not sent to the Claimant at the same time and he did not receive it until 30 November 2020. When the Claimant got his copy, he wrote to the provider saying that he had expected to receive this for comment prior to it being sent to his employer. He also wrote: whilst she is entitled to her own professional opinion, the report is not an entirely accurate reflection of the discussion that I had with Herninder.

[152]The Claimant’s email was forwarded to the OH adviser, who wrote inviting him to call her and discuss it.

[153]Kristina Garmute of IGU wrote to the Claimant on 27 November 2020, noting that his DSAR was very broad: Thank you for your email, in which you have requested correspondence that has been sent to or from anyone with management, HR or H&S responsibilities (or admin staff supporting those roles) relating to or mentioning me or the issues. In terms of your request for email correspondence, I want to clarify that we will search the University’s email archiving system for emails. This means that we are unable to search correspondence from specific departments, this is because the system can only search either all emails (irrespective of department) or emails involving named individuals. Below are some examples of the search parameters that we would us: 1. Search parameters 1: Any emails where “Stuart Lemanski” has been mentioned either in body or subject line since 30th September 2020. Please note the search end period is the day the data subject access request has been made. Or : 2. Search parameters 2: Any emails between named individuals, where “Stuart Lemanski” has been mentioned either in body or subject line since 30th September 2020. Please note the search end period is the day the data subject access request has been made. In respect to proposed search 1, this is a very wide search and is likely to contain emails that may not be relevant to your query or issues and may produce a large amount of emails, so we would recommend to narrow down your request to specific individuals or keywords. In respect to proposed search 2, in order to run this search we would require you to provide specific names to run the search, in particular we would require you to provide names for the individuals in the departments/roles you are referring to in your request. I also would like to note, in your request you stated you want any emails “relating to or mentioning the issues”, in order for us to do a search where you raised any specific issues, we would require you to provide specific keywords, for example “grievance”, “disciplinary”, “appeal”. We can use the keywords within the parameters of proposed search 1 or search 2, this would likely narrow down your request to only capture the information you are looking for and would likely reduce the amount of emails. Please note, where our search brings up personal data not only about you but also others, we will have to consider whether to supply the data, and if so, whether on a redacted basis.

[154]The search proposed appeared to Ms Garmute likely to result in a vast body of irrelevant data being captured. Whilst the Claimant appears to have approached this as though it were merely a mechanistic exercise, it would of course be necessary for Ms Garmute or one of her colleagues to review all of the material captured, so as to ensure only that which the Claimant was properly entitled to receive was released to him and any personal information about others was redacted. This was likely to amount to a very considerable undertaking. There was further correspondence between the Claimant and Ms Garmute about his request, in which she sought to clarify and refine this. On 2 December 2020, Ms Garmute wrote indicating an intention to respond to his request by 25 January 2021.

[155]Also on 2 December 2020, the Claimant wrote to the OH adviser, setting out his concerns about the report she had prepared. This included: In answer to the second numbered question, you have omitted to mention that the stress of working in (what I consider to be) an unsafe environment has affected my health - specifically, this has led to significantly increased symptoms of stress and anxiety- poor sleep, loss of appetite, feelings of hopelessness. Hence the reason for my GP increasing my citalopram prescription. In answer to the fourth question, you note only that there is no reason why I cannot meet with a manager or HR advisor. We discussed that I am on the autistic spectrum and, whilst I have not required formal adjustments, I would note that my line manager and colleagues have been helpful in ensuring that they are clear about what they want me to do, and providing information in writing when requested. Your report fails to make any recommendations in relation to my neuropsychology (other than to state in the introduction that I have not been officially diagnosed) and has neglected to mention whether it would be a reasonable adjustment for the points to be provided in writing. In answer to the ninth question, you state that there are no medical reasons why I am unfit to return to campus. Whilst I would agree that there are no physical reasons why I cannot return to campus, returning to an unsafe working environment would undoubtedly see my stress and anxiety return and have a detrimental impact upon my mental health.

[156]In some respects, the Claimant’s representations sought to add further detail to the existing report or make minor clarifications. It does not follow from this that the existing summary was materially inaccurate. The adviser could properly decide how much to include and the way in which it should be summarised. The factual additions proposed by the Claimant do not suggest that what had been provided originally was not a fair reflection of the discussion which had taken place. In other respects, such as in connection with the Claimant’s ability to attend a meeting with his manager, the Claimant sought to replace the adviser’s opinion with his own. The purpose of an occupational health report is to provide advice from an independent professional and not merely to convey the employee’s opinion. Separately, the terms in which the Claimant wrote did not suggest that he required other adjustments to be made to account for his autism.

[157]Whilst Mr Farmer sought to arrange a meeting with the Claimant to go through and discuss the occupational health report, this did not happen because of the objections raised.

[158]On 6 January 2021, IGU wrote to Mr Farmer: This has been looked into and Mr Lemanski has been advised that the University did not instruct such processing of personal data of our staff and students to be carried out, and that we did not inform data subjects in Privacy Notices (available here) that their personal data will be processed in this manner. He was also advised that he should not be taking and using these photos in a professional capacity as a staff member and that he should not be using his personal email address for work purposes, especially when handling personal data, as outlined in the University’s Appendix 4 – Acceptable Use Code of Conduct of ICT Facilities in Coventry University and Subsidiaries. Mr Lemanski was also informed that the University does not accept any responsibility for this mishandling of staff and students personal data. As such, he was asked to delete any and all photos of our students and staff members taken in any purported professional capacity (and/or to demonstrate Covid-19 guidance non-compliance), unless he has consulted with us (IGU) and completed a Data Protection Impact Assessment or Compliance Report.

[159]Subsequently, IGU appears to have accepted the Claimant’s explanation that the photos were taken in a private capacity. We are not entirely sure how that view can be said to fit with the Claimant being in his workplace, during working hours, taking photos of staff (employees) and students (service users) without their permission, and then sending the images on to various colleagues.

[160]On 3 February 2021, the Claimant chased for a response to his DSAR, pointing out the date of 25 January 2021 had now passed. He said that in the event he did not receive the data by the end of the week he would be “forced” to take it up with the Information Commissioner’s Office (“ICO”).

[161]On 4 February 2021, Ms Garmute wrote to the Claimant providing a response to his DSAR. As is usually the case, this included much redacted material. The Claimant wrote back the same day, copying in his solicitor, complaining about the inadequacy of the response and also saying: It is clear to see that it has been so heavily redacted as to deliberately obscure the nature of the discussion and comments that have been made about me. I also note that you claimed there to be duplicates, but this is not a reason not to include them. You will note that I have copied my solicitor in to this email and would now ask again that you please stop messing around and wasting all of our time, and that you provide me with copies of ALL of the emails that you hold which meet the search criteria (which includes those sent to or from me), as you are legally required to do.

[162]On 10 February 2021, the Claimant wrote to Mr Larter complaining that he should have been given the opportunity to comment on the occupational health report before it was sent to the Respondent. Mr Larter replied the same day saying the Claimant should resolve this with occupational health. The Claimant was dissatisfied with that response, he reiterated his complaint about the correct process and said he wished to raise a formal grievance. Mr Larter replied on 12 February 2021, saying occupational health was an external provider and he was unsure about the process for raising a formal grievance. He provided links to the occupational health service. The Claimant wrote back on 13 February 2021, saying it was a matter for the Respondent if it engaged an external contractor but his grievance was with the University. Mr Larter replied on 17 February 2021, saying that as the Claimant’s complaint was about occupational health he should raise that through their internal complaints processes. He did, however, also signpost the Claimant to the Respondent’s grievance procedure, explaining that he could not take the step of raising a grievance on the Claimant’s behalf.

[163]On 11 February 2021, Ms Garmute wrote to the Claimant at length to explain the process that had been followed in connection with responding to his DSAR: In response to your email dated 4th February 2021. I can confirm that the search parameters that we have use have found 816 emails spread across 2934 pages, as explained in our email dated 30th November 2020. This however appears to have caused some confusion, to clarify although the search located 816 emails it does not mean that all of those emails are your personal data. […] In this case, the search has produced 816 emails, however only 18 emails constitutes as personal data. Some of the other emails may identify you, however the content and context of the emails does not relate to you therefore it is not your personal data and as such it was redacted or withheld. In terms of redaction, as explained above, you are only entitled to information that is your personal data, this means you are not entitled to any other information. In addition, the University has a right to withhold or redact information where i)information is not your personal data ii) information relates to other individuals either by identification or context. We are not required, in response to a data subject access request, to disclose information about another individual who can be identified from that information, except where the other individual has consented to the disclosure or it is reasonable in all of the circumstances to disclose this information without that individual’s consent (see Section 16, Part 3, Schedule 2 of the DPA). When considering the disclosure of third party personal data, we are obliged to balance your right to access your personal data against the other individuals’ rights in respect of their own personal data. We have considered this on a case-by-case basis. Where appropriate, we have disclosed information to you and have withheld or made redactions to remove information that would identify the third party individual where this was considered necessary. We have provided you with information which we determined constitutes as personal data but on a redacted basis. We have redacted information where information is not your personal data or where it relates to other individuals. We also aspart of our normal process removed duplicate information and information you already hold. The University is not under obligation to provide you with copies of information that are readily accessible by you. As you are an employee of the University you can access any emails which you have sent or received, which contain your personal data. Furthermore, we noticed that you routinely include your personal email address to any correspondence with Coventry University in relation to your complaint, therefore you already hold this data in your personal account and we are under no obligation to provide this data.

[164]The Claimant replied to that saying he had raised a complaint with the ICO and: In regards to your repeated attempts to obstruct and avoid providing me with the personal data that I have legitimately requested, I have raised a complaint with the ICO, and I am also copying in the Data Protection Officer at Coventry to raise an internal grievance. As you can see, my solictor has been copied in to all correspondence - we hope it would not become neceesary to obtain a Court Order to force you to provide the information which you are legally required to. I have also copied in my line manager (Caroline Lambert). She is aware of the mental health issues that I have suffered as a result of repeated institutional harrassment that I have experienced from the University, and needs to be aware that this is yet another example of that.

[165]On 18 February 2021, the Claimant raised several grievances, in emails copied to his solicitor. Whilst some of his complaints related to recent events, others went back many months. First Grievance

[166]The Claimant’s first grievance was about the occupational health report: I was instructed to attend an OH meeting as a result of being signed off on-campus work by my GP. I was informed that I would be provided a copy of the OH report prior to this being disclosed to HR. The report was disclosed to HR without my knowledge and without a copy being provided to me. Unfortunately, the report was not an accurate reflection of the conversation between myself and the HR practitioner. I have had no substantive response from OH in my attempts to follow up on this, and a recent e-mail from Mike Larter in HR suggests that he wishes to push ahead with meetings and processes. I have no confidence in the OH practitioner who provided the initial report, and Mike has brushed aside my concerns about failure to follow process.

[167]Ms Jennings acknowledged the Claimant’s grievance the same day. She also wrote: I note also that you have been asked on a number of occasions not to copy external individuals into University business emails and would reiterate this expectation.

[168]The Claimant ignored this instruction and continued to copy in his solicitor.

[169]Mrs Walden wrote to the Claimant on 19 January 2021, saying that to the extent the Claimant’s grievance was against the occupational health service, he would need to raise this with the provider, Coventry City Council. As far as his complaint about Mr Larter was concerned, that would be addressed.

[170]Mrs Walden investigated this grievance.

[171]On 27 May 2021, the Claimant wrote to the occupational health adviser, copying in his solicitor, accusing her of sharing private medical information without his consent and giving her 7 days to rectify this before he would make an official complaint to her professional body. She replied saying the practice since March 2020 had been to take verbal consent before starting the health assessment. The Claimant wrote back saying the consent he gave was only if he had a copy in advance and was happy with its contents. He said in order to rectify the situation she would have to formally retract the report, tell his employer it did not reflect their conversation and formally apologise for the stress and anxiety her failure had caused. He would then decide whether to take this matter further with her professional body. In light of these threats, by an email of 15 June 2021, the occupational health adviser agreed to withdraw her report, writing: As you are aware, I undertook a health assessment for SL on the 11th November 2020 via Teams. At the time, in line with the service protocols, I obtained his verbal consent to go ahead with the health assessment and to send a report back to the University with a copy to him. A report was sent to the University and to SL which was delayed due to admin issues. On the 2nd December 2020 I received an email from SL challenging the report and .the consent. He has emailed on the 9th June 2021 demanded that the OH report is retracted as he says I agreed I would send a copy of the report to him before it was sent to his employer. (He has copied his solicitor into the email) SL states that he feels the report does not accurately reflect our conversation. Although this is not my recollection, I would request that the report is deleted from your records in line with his request and withdrawal of consent and that you confirm to me that this has been done.

[172]Notably the occupational health adviser did not agree that her report was inaccurate.

[173]On 3 July 2021, Mrs Walden wrote to the occupational health adviser: As we have paid for the appointment and report, can I ask how this works now (as we have in effect, not received what we have paid for)? I would also like to understand if this is the usual process you would follow if someone disagrees with the report and asks for this to be deleted, in spite of this not being your recollection of the conversation you had?

[174]The Claimant suggests this is evidence the Respondent had paid to ensure it received a report which would allow for his forced attendance at a meeting. We find it is nothing of the sort. The Respondent contracted with a provider for occupational health advice. It had paid for that advice and the adviser now sought to withdraw it. Separately, it is unlikely there was a “usual process”. The challenge the Claimant made and the response of the individual OH practitioner is likely to have been unusual if not unique.

[175]On 31 August 2021, Mrs Walden wrote to the Claimant providing an outcome to his grievance, which was partially upheld: Findings I have found no evidence to support the assertion that the report would be shared with you prior to it being shared with the University. The OH provider have confirmed their usual process (which is to share the report with both parties at the same time) however have confirmed that on this occasion this did not happen they have apologised for this oversight. As such, I partly uphold this element of your grievance. I have seen evidence which shows that the OH Team did respond to your email disputing the report, and requested a conversation with you about this. Your replied to this and confirmed that you wanted all dialogue to take place electronically. In addition, it has been confirmed that OH asked you if they could share the additional information you provided to them with the People Team but that your explicit permission to share this was not received and as such these details were not passed to the University. As such, I find that while there was dialogue between the two parties, it appears there was no final resolution as to how this matter would be taken forward/resolved by either party. Notwithstanding the above, in relation to the content of the report, the University is not in a position to comment on the accuracy of the report as this was a discussion between yourself and the provider. As such I can make no findings in this regard. Lastly concerning the People Team, I have found no evidence to suggest that Mike has pushed to move forward with meetings and processes, nor that he brushed aside your concerns regarding the process. Mike explained to you how you could contact the OH service to take this forward and has not pursued matters internally while the detail of the report remains in dispute between yourself and the provider. As such I do not uphold this element of your grievance. Next Steps Evidently there remains a factual dispute regarding the content of the OH report. As such in order to take this forward I will ask Mike to contact you to discuss a new referral to OH. I am aware of the reasons for your previous visit and believe, as the University is returning staff to Campus, that this would be beneficial to support your return to Campus and to support the University in working with you. I have noted the comment within your grievance that you have no confidence in the OH practitioner who undertook your meeting last year and although I have not made any findings in relation to the discussion that took place between you, I will ask Mike to liaise with the relevant senior manager in Occupational Health to ask that you are assigned a different practitioner on this occasion to alleviate any concerns or anxiety you may have.

Findings

[176]The Claimant replied to Mrs Walden on 1 September 2021: Thank you for forwarding me the findings of your “investigation” into my OH grievance (attached for reference) In dealing with my grievance regarding the inaccurate OH report (which was provided to you without my consent for my private medical data to be shared), you claim that you “have found no evidence to suggest that Mike has pushed to move forward with meetings and processes”. I therefore refer you to the second paragraph of the e-mail I received from Mike Larter on 17th Feb (copy below) in which he states “as such will be looking to move forward with arranging a meeting with Katie Jennings, People Partner and Raymond Farmer, Academic Dean”. Clearly, you were either not looking very hard for this evidence, or Mike Larter lied to you, or you deliberately overlooked it in order to attempt to justify the University’s ongoing attempts to bully me into silence about my whistleblowing concerns in September/October 2020. Furthermore, I note that you have provided no evidence of my consenting for personal medical information about me (i.e. the OH report) to be shared with my employer by the OH practitioner. This is because I never gave any such consent, and as such you are holding personal data about me which you do not have my consent to hold and which is inaccurate. Both of these are in breach of GDPR. The rest of your findings are littered with inaccuracies and logical non- sequiturs in an apparent further attempt to justify the University’s behaviour. I have seen enough grievance outcomes that I am not surprised by this and have forwarded this to my solicitor (cc’d) as further evidence of the University’s ongoing bad faith in its dealings with me. I would highlight that the University’s continued bad faith in its dealings with me continues to have a serious and long term detrimental impact upon my mental health.

[177]On 30 September 2021, the Claimant wrote to Mr Larter and Mrs Walden, accusing her of sweeping the matter under the carpet, continuing to argue his grievance and saying: …I am unsure how Louise has manage to miss this when arriving at her conclusion. It could have been due to stupidity, or it could have been deliberately overlooked. Or there could be some other reason. Perhaps Louise (cc’d) would care to explain? When the University goes out of its way to cover up it’s obvious and documented failings in this way, I’m sure you can see why I feel there has been a complete breakdown in the relationship.

[178]The Claimant has now conceded that some of his correspondence may have been rude or inappropriate. This was a concession made for the first time at the Tribunal. It has taken him the best part of 5 years to arrive at this point.

[179]Despite having been advised of his right of appeal, the Claimant did not do so. Second Grievance

[180]The Claimant’s second grievance on 18 February 2021, was about the response to his DSAR: […] This request was subsequently dealt with by Kristina Garmute, who took 17 days to come back to me just to state that the request needed to be more specific. This was unfortunately just the start of my issues with Kristina - during my dealings with her, Kristina has repeatedly been tardy and obstructive, attempting to avoid providing the information which she is legally required to give, and (even if not legally required to give) acting in a manner contrary to the University’s principle of “openness” as formalised in the Code of Conduct. It took until 2 December 2020 for her to agree to undertake the search “as soon as possible by no later than 25 January 2021”, but no response was received by 25 January. I chased this up via e-mail on 3 February 2021, and miraculously received a response on 4 February 2021. From 861 e-mails identified in the initial search, Kristina has provided only 18 e-mails, which have all been redacted to such an extent that whilst it identifies my name, it does not identify the data which the University is holding and transmitting about me. I would point out that the whole purpose of the legislation is to provide the subject with a copy of the information which is being held about them – not simply to be given a copy of the e-mail which has the subjects name and almost all other information redacted.

[181]Mrs Walden wrote to the Claimant on 19 January 2021, saying that his grievance relating to the DSAR was about a customer service (i.e. not something done by the Respondent in its capacity as his employer) and he would need to follow the complaints procedure for that

[182]Separately, Ms Garmute had sought legal advice. Ms Dunford, the Respondent’s Principal Solicitor, wrote to the Claimant on 1 March 2021, setting out her conclusion having looked into the matter, namely that the Respondent had dealt with his DSAR appropriately.

[183]Whilst the Claimant says the ICO upheld his complaint about the Respondent, it is unclear whether and if so to what extent that is correct. The 8 July 2021 letter from the ICO required the Respondent to look again and check whether it had fully responded to the Claimant’s DSAR. The ICO did not identify a specific default. The material part of the letter reads: It is our decision that there is more work for you to do and now expect you to take steps to address any outstanding issues with your customer. You need to review your response to Mr Lemanski’s subject access request and decide if you are able to provide any further information or not. You then need to explain this to Mr Lemanski. Third Grievance

[184]The Claimant’s third grievance of 18 February 2021, was about the measures the Respondent took in connection with Covid and the actions of Mr Farmer: The university has not following its own Covid-safe protocols within the department of Engineering, putting risking my health and safety as well as that of my family (the same applies for other staff members). I raised my concerns through the chain (informally with my line manager, with the Head of Department, and with the Dean). At the upper levels of raising this complaint, I felt that I was being brushed off and the serious Health and Safety issues were being swept under the carpet (this is a separate matter which I will deal with separately – I made an internal whistleblowing complaint). The Dean repeatedly attempted to minimise the extent of the problem, describing repeated breaches of Covid-safe protocols that I brought to his attention as ‘one or two isolated incidents’. In response to this, the time that I arrived on campus to teach (8th October) I took photographs (in a personal capacity using my personal mobile phone camera) demonstrating at least seven breaches of Covid protocol in the 5 minutes it took me to walk from the lower ground floor up to the third floor. Instead of addressing the underlying issue (that Covid breaches were widespread within the EBE building) Raymond decided to focus upon non-existent GDPR issues relating to my having taken photographs. He attempted to set up a meeting with me and HR at very short notice (I actually only received the notification of the meeting after it was already due to have taken place). He later declined to provide specific details about what the meeting was supposed to involve. Two months later (on 6th January 2021) I received a rather officious e-mail from Diana Dinu at […] informing me that a data breach had taken place and instructing me to delete the photographs. Due to the timing of the intervention from IGU (quite a long time after the initial “breach” and just after the completion of the whistleblowing investigation), I believe that this was yet another attempt by the University to bully, harass and punish me for raising complaints about the University’s “face-to-face-teaching-at-all costs” approach to on-campus teaching. I replied that the photographs had been taken in a personal capacity using personal equipment and were separate from my employment. Miss Dinu noted this and accepted that this fell outside of the University’s jurisdiction (thus demonstrating that both Raymond’s original objection and the subsequent IGU follow up were unmerited). Miss Dinu has declined to reply to my requests for details about when the complaints were forwarded to IGU, so in the absence of evidence to the contrary (and considering the way that the University has handled my concerns about Covid safety on campus) I am forced to raise this as a grievance for yet another instance of bullying and harrassment. Note that Raymond Farmer’s addressing of the actual issues that I raised is a separate matter which I will raise separately. This grievance relates to how I have been treated in relation to addressing those issues.

[185]Professor Mossman was appointed to consider this. She had no prior dealings with the Claimant and came from a different faculty of the Respondent University. Professor Mossman met with the Claimant on 18 March 2021 to further investigate his grievance. In accordance with the Respondent’s policy, the Claimant was entitled to be accompanied by a trade union representative or work colleague. He could not be represented by his solicitor. Professor Mossman met with Mr Farmer on 23 March 2021 and Ms Dinnu of ICU. In addition to his interview, Mr Farmer provided written representations responding to the Claimant’s grievance.

[186]Professor Mossman did not uphold the grievance. She wrote to the Claimant explaining her decision on 1 April 2021. Her detailed rationale was set out over 5 pages.

[187]The Claimant appealed against this decision. For the most part the Claimant complained that the decision did not address his grievance. We do not agree. Professor Mossman responded to and determined the Claimant’s grievance in a proportionate manner. The Claimant also added a new point, namely that Mr Farmer failed to accommodate his request for information in writing because he was on the autistic spectrum. This is not something that had been raised with Mr Farmer.

[188]The Claimant’s appeal was dealt with by Douglas Howat, Dean of Undergraduate Studies. The Claimant was invited to and failed to attend meetings on 5 and 19 May 2021. Having said he did not receive these invitations, the appeal meeting was rearranged to 9 June 2021 and took place by Teams. Mr Howard did not uphold the grievance. His decision was explained in detail over several pages in an outcome letter of 18 June 2021. Fourth Grievance

[189]On 18 February 2021, the Claimant sent an email to Mrs Garner, copied to his solicitor, with the subject line “If you refuse to do face to face teaching, that would be a disciplinary matter”, saying: I refer to the above statement you made to me last semester, shortly after I spoke to you when I was very upset about the fact that an unmasked student had coughed over me during the tutorial session I had been giving that morning. Your statement was made as a direct response when I pointed out that the university could not force me to work in an unsafe working environment. Obviously your use of the word “you” made the statement personal rather than a generic statement of university policy, and I perceived this as a direct threat and an attempt to bully and harass me – to the extent that I wrote it down word for word after the incident. […] I understand that you have since claimed that this statement was not a threat, although I have heard nothing more from you on this matter. As we have previously had a good working relationship, I am therefore asking you to clarify what you meant by this statement, in the hope that I can avoid dragging this through a formal procedure. If this is the case, can you therefore please conﬁrm to me that if I feel that I am not being provided with a safe working environment by the university, then I am within my rights to remove myself from that environment (as is any staﬀ member). This includes situations where Covid-safe procedures (which form part of the risk assessment that justiﬁed the reopening of campus) are not being followed.

[190]Given the lack of contact between them for many months, it is difficult to understand the timing of this email from the Claimant other than as a precursor to his next grievance, which was presented on 24 February 2021: The university has not following its own Covid-safe protocols within the department of Engineering, putting risking my health and safety as well as that of my family (the same applies for other staff members). I raised my concerns informally with my line manager who was sympathetic, and then (after an incident where a student breached health and safety protocols by coughing over me) with the Head of Department and my line manager (they share an office). Unfortunately, the Head of Department told me “if you refuse to do face to face teaching, that would be a disciplinary matter” which appeared to be a threat to bully and force me into continuing face to face teaching in an unsafe environment. This had a significant detrimental impact upon my mental health at a time when my stress and anxiety levels were already elevated, which resulted in my GP signing me off as needing to work off-campus, and my dose of prescribed antidepressants being doubled.

[191]Mrs Garner replied to the Claimant on 24 February 2021. We accept her evidence, the timing of this was not a response to or prompted by the Claimant’s grievance, which would not have been received by her that day, rather the delay was because she had sought advice from HR. Mrs Garner had previously been advised to cease having communication with the Claimant. She wanted to get up-to-date advice before replying.

[192]The Claimant sent a great deal of correspondence that was rude, aggressive or threatening. Constantly copying in his solicitor and/or making references to the complaints or legal claims he may bring, would, reasonably, be understood by the recipient as an attempt to apply pressure to them to do as the Claimant demanded or else face the consequences. Free-flowing allegations of wrongdoing, incompetence or dishonesty would also be likely to take its toll on the wellbeing of those with whom the Claimant corresponded. To the extent the recipients sometimes sought advice before replying, this was entirely reasonable.

[193]Mrs Garner wrote: Thank you for your email. Firstly, I would note that my preference in these situations would always be to have a conversation so that all parties have a chance to express their concerns and resolve the situation, but as you have indicated your preference for communication to be solely in writing I will respond accordingly. With reference to the incident on 1st October 2020, where you spoke to Caroline and I and stated that a student had coughed on you without wearing a mask, I recognise that your approach during the conversation may have been aﬀected by the anxiety you were feeling and you will recall that Caroline and I suggested a number of solutions to the issue you raised and encouraged you to take some time outside to calm down to support your wellbeing. Within our overall exchange, in response to you asking what would happen if you refused to teach, I advised you that unreasonably refusing to undertake duties, like teaching, that are part of your role could be a disciplinary oﬀence. While I appreciate that this incident was concerning for you, I would note that I did not feel your tone and manner during our exchange was appropriate within a professional and collegiate environment and as you will recall I asked you to cease from using profanity during the exchange. I believe my response to you was professional and appropriate, oﬀered support and responded to the direct question you posed. I would reiterate that it was not intended as a threat nor to bully or harass you. In connection with the other query you have raised, if an employee genuinely believes that they are working within an unsafe environment, my expectation is they would discuss this with their line manager as soon as possible so that they can work with the member of staﬀ to understand their concerns and resolve the situation. I understand that Ray and Katie are still seeking to meet with you in regards to the overall incident and would encourage you to do so in order for us to move forwards. Finally, I would also reiterate my oﬀer to meet with you to discuss your concerns and move the situation forwards, and remind you that the University has a number of support services available to you which I would encourage you to utilise if this would be helpful.

[194]There was some delay by the Respondent in responding to the Claimant's fourth grievance, as the first person assigned to address it was unable to continue to do so because of an accident. There was also, in this grievance as in other circumstances, some difficulty arranging a meeting with the Claimant. This was eventually set for 16 September 2021, with Dr Williamson, Head of School EFA FBL, as decision-maker. On the day the meeting was due to take place, however, the Claimant wrote to say he would not be attending: I’m sorry not to be at this meeting, but I’ve had HR playing silly mind‐ games with me and as a result, I’m unfortunately not in a position where I can face this kind of meeting. Could I suggest that you put any questions/requests in writing and I will do my best to get back to you when I feel up to the task?

[195]Notably, the Claimant did not put forward a health reason for not attending this meeting. Ms Bailey, People Adviser, replied to the Claimant saying that if there was a need to contact him, this would be done in writing.

[196]On 24 September 2021, Dr Williamson interviewed Mrs Garner.

[197]Dr Williamson made a decision based on the information he already had from the Claimant. Dr Williamson did not put any written questions to him. The grievance was not upheld and the reasons for this explained in the outcome letter, sent on 13 October 2021, which included: As you did not attend this meeting, I can confirm it was held in your absence. You did email me following the meeting time to confirm that you were not able to attend and that any requests or questions should be sent in writing and that you would respond when you felt up to it. Unfortunately, as we have re-arranged this meeting now on four occasions, we agreed we would go ahead and hear your grievance in your absence, and as requested put the outcome in writing to you. […] From my investigation, it is not clear to me which aspects of the “work environment” are allegedly unsafe in your claim. The original incident in this Grievance appears to be an isolated case of a student behaving inappropriately (i.e. “coughing over me”). This is clearly unacceptable and appears to have been met with support and compassion by your line manager. It is not clear to me whether any formal action was pursued by yourself against the student in question, nor is it clear that this was anything other than an isolated incident. Fifth Grievance

[198]On 24 February 2021, the Claimant again adopted the approach of submitting multiple separate grievances on a single day.

[199]The Claimant’s fifth grievance included: took a 1-year “career break” from 14 September 2018 to 14 September 2019. (The circumstances of this are another matter about which I have a grievance against the University, but that is a separate issue which I will not go into here). On 9 September 2019, I received a formal letter from Coventry University informing me that I had not returned to work on 1 September, and that my pay was being withheld and threatening disciplinary action. I had had no prior notification of this. It subsequently appeared that my line manager at the time (Patricia Ashman) had attempted to contact me via my University e-mail address, despite the fact that she was aware through correspondence via my personal e-mail address (in which I had offered to mark the 4th year project of a student I had previously supervised whilst on the career break) that I was unable to access my university e-mail address. The withholding of pay (which I fortunately managed to get sorted out upon my actual return to work) and threat of disciplinary action caused considerable stress and anxiety at a time when I was otherwise looking forward to returning to work.

[200]The Claimant's grievance in this regard is most surprising. Following the rather complicated circumstances in which the Claimant came to take a career break, on returning there was a mix-up over his start date. This was quickly and simply resolved at the time. The Claimant did not need to raise a grievance, redress had been provided already.

[201]Faye Mitchell, Acting Head of School, was assigned to deal with this grievance. She met with the Claimant on 24 March 2021 and wrote to him with an outcome on 21 July 2021. The grievance was not upheld. Her decision was set out over f5 pages. The short version, unsurprisingly, was that there had been a mix-up.

[202]The Claimant did not appeal against this decision. Sixth Grievance

[203]The Claimant also raised grievance number 6 on 24 February 2021: I am raising this grievance in relation to the university’s failure to provide a safe working environment during the course of the Covid-19 pandemic. I raised many concerns both formally and informally with the management structure of the university. None of the responses materially addressed my concerns regarding ventilation, face coverings, adherence to social distancing, etc. This culminated in several incidents:(1) myself and other staff being required to teach in overcrowded rooms (i.e. rooms with more students than permitted in the risk assessment),

(2) myself and other staff being required to teach in unventilated rooms (i.e. ventilation of rooms was part of the risk assessment which permitted the reopening of ECB, but the windows in ECB are automatically controlled and it was impossible to manually open them),

(3) myself and other staff being required to teach unmasked students. In my case this resulted in one unmasked student coughing over me during a face-to-face tutorial.

(4) failure of Coventry’s test-and-trace protocol – a student who had attended my class received a positive test result three days later. I was not informed of this, despite my “return to work” form noting that I had vulnerable family members. I was ill in the week following exposure.

[204]We pause to note, the Claimant had not previously raised a concern about being required to teach in overcrowded rooms. No evidence to support this contention was put forward. Nor was there any evidence of him being required to teach in an unventilated room. This and other correspondence demonstrated a tendency on the part of the Claimant to exaggerate. He received explanations about the ventilation, as he had about the approach to mask wearing and test and trace. The Claimant’s concerns were addressed. There is a difference between providing a considered response to a person’s concern on the one hand and on the other, agreeing in all respects to adopt their position. The Claimant sought the latter.

[205]Julia Ryall, Business Transformation Manager, investigated the Claimant’s grievance. She met with him on 3 March 2021 and wrote with her outcome on 17 May 2021. The grievance was not upheld. Ms Ryall’s decision letter set out her conclusions on each of the grounds raised.

[206]The Claimant appealed against this decision. Lucy Hargreaves, Director of Risk Assurance, was the appeal manager. She sought to meet with the Claimant but he declined to do so. The appeal was heard in his absence and not upheld. Ms Hargreaves wrote to the Claimant on 2 November 2021. The Claimant responded, complaining about this decision, on 3 November 2021. With an increasingly typical lack of restraint or measure his email included: Thank you for your e-mail containing the grievance appeal outcome […], which I have attached to this e-mail so that my solicitor has a copy. I note that the outcome letter fails to actually address any of the points I made. I do not know whether this is because Lucy is mentally incapable of following the issues and responding to those issues in an unbiased way, or because she is deliberately avoiding addressing the issues and instead addresses strawman arguments so that she can find in favour of the university. Or perhaps there is another reason. I have copied Lucy to this e-mail so that she can respond herself.

[207]Ms Jones wrote to the Respondent about the tone of his correspondence on 5 November 2021: Whilst you may disagree with the outcome of the appeal, you are still required to be professional in your communications with colleagues and therefore I ask you to refrain from making such degrading statements in the future.

[208]The Claimant did not accept any criticism of his language. He wrote to Ms Jones on 10 November 2021: I have not made degrading statements. I have merely offered two possible explanations as to why Lucy might have failed to address the substance of my appeal and instead focussed upon irrelevant strawman arguments that she has apparently constructed herself. I also indicated that there could be other explanations and even suggested that she could reply to explain herself.

[209]The Claimant did not, however, merely send his reply to Ms Jones, he copied it to all staff as well. Seventh Grievance

[210]On 22 April 2021, the Claimant made an application for annual leave using the Respondent’s online system. The information he provided at the time included: Hi Caroline I am primarily booking this holiday as I am unable to e-mail you because I am locked out of my University e-mail (and other critical functions) because it requires authentication. I cannot use my personal e- mail for business purposes, and I will not use my personal IT equipment (i.e. my mobile phone) for business purposes (Raymond explicitly forbade that). If the university would like to think of a workaround, they can then write to me with a solution at my home address.

[211]The Claimant had not been banned from using his mobile phone for the purposes of multifactor authentication (“MFA”) he had merely been told not to send work-related emails to and from his Hotmail address. Furthermore, the Claimant had been told not to copy internal correspondence to his solicitor and had ignored that instruction. The conclusion we draw is that the Claimant was being deliberately obstructive. He had felt aggrieved about being told not to use his Hotmail account. He saw the introduction of MFA as an opportunity to engage in tit-for-tat.

[212]Ms Lambert emailed the Claimant on 25 April 2021, saying she too had been caught out by the new system and had trouble logging on. She asked whether he was still having problems and to let her know. Not having heard back from the Claimant, Ms Lambert emailed him again on 5 May 2021. This time she copied the email to his Hotmail address also. The Claimant replied the same day: Obviously, as this is my personal e-mail address, I am not able to use it for any university business as Raymond explicitly forbade me from using my personal e-mail address or IT equipment for university business (although strangely Coventry University had previously seemed perfectly happy for me to use my personal e-mail address to continue supervising Coventry students during my unpaid "career break"...) Sadly, this means that I remain unable to log in to my Coventry University e-mail, OneDrive, Teams, etc. However, CHRIS appears to be unaffected, as it does not require two-factor authentication to log in. In addition to my message to you two weeks ago, I wrote to the Head of IT services (28 April) requesting a solution, but have not yet received a response.

[213]Once again, the Claimant was being deliberately obstructive. Whilst there is a general expectation that work-related emails will be sent by way of the Respondent’s systems, there will, obviously, be occasions when it is necessary to contact an employee at home by phone, email, or letter. This will usually be in circumstances where the communication relates to their own employment and they may not be able to receive the communication through work email. That was the position here.

[214]Ms Lambert contacted IT on the Claimant’s behalf and arranged for MFA to be disabled on his account. She followed this up with an email to him: I appreciate I’m having to use your personal email but this is by far the quickest, most efficient approach to get you back up and running as soon as possible. Please do ring ITS to follow this up and I have also escalated your problem to Paul Ireland, who is heading up the MFA roll out. This is something we all need to work together to resolve. […] If you would rather not continue using your personal email to communicate with me then please do ring me on the mobile number below. I will be at my desk tomorrow and my desk phone is also an option My expectation is that you will communicate both with ITS and me during your working day tomorrow to resolve the issue and update me on the tasks you are currently working on. I will ensure I am available to support as much as I can and if you need further support to contact ITS then please contact me using my email or the numbers below.

[215]The Claimant did not do as he had been asked. On 14 May 2021, he wrote to Ms Jennings, Ms Lambert and copying in his solicitor: As previously stated to Caroline, this is my personal email address. Service of documents is not accepted via this e‐mail address. Raymond Farmer (who was Dean of the Faculty at the time) explicitly instructed that I was NOT to use my personal e‐mail address (or personal IT equipment) for University business purposes and threatened me with disciplinary procedures if I did so.

[216]Despite the terms in which he wrote, the Claimant was not engaged in litigation. He was receiving communications from his employer and managers. The notion of permitted means of service had no application in this context. He insisted on paper correspondence only. Once again, he was being deliberately obstructive. We do not accept that he had any genuine fear that he would be subject to disciplinary action if he did as Ms Lambert asked.

[217]Mrs Walden wrote to the Claimant on 18 May 2021. Her letter included: Prior to this formal request, while I appreciate you were asked by the University to refrain from using your personal email address for work related matters (where you were copying your personal email address to correspondence and using your work email address as well), this request was made at a time when you had no IT issues and there were no genuine business reasons for you to be corresponding through this channel. In order to assist you with the current issue you are facing, it was reasonable for the University to correspond with you via your personal email address in order that your issue may be rectified as soon as possible and it was, in the circumstances, reasonable for you to respond via this channel in the absence of any other reasonable route. […] Therefore, you are required to attempt to log into University systems on your next working day and if you find you are unable to do so you are required to contact IT services immediately to inform them that you are having problems with your system. You can log a call electronically by contacting […] and reporting that something is broken. If they can then resolve the issue virtually, they will do so. Alternatively, and as clarified by Caroline and Katie, you can contact them on […]

[218]By email of 23 June 2021, the Claimant raised a grievance number 7: Raymond Farmer (Dean of the Faculty at that time) threatened me with disciplinary action for using my personal e-mail address to send evidence of H&S breaches within the department, and for subsequently cc’ing further correspondence on the matter to my personal e-mail address. He highlighted that use of my personal e-mail address for business purposes was contrary to University procedures and explicitly stated that I must not do so, and that if I did it would be considered a breach of a direct instruction and would be dealt with appropriately. I was some later locked out of my e-mail due to the bungled introduction of MFA across the university. I was shocked and disappointed to find that the university then repeatedly wrote to me via my personal e-mail address for business purposes – in direct contravention of University procedures, and also in direct contravention of the Deans explicit instruction. Despite repeated attempts informing them that I was not to use my personal e-mail address for university business, and despite informing them that I considered such correspondence to be harassment, these e- mails did not cease.

[219]Carolyn Wynne, Director Doctoral College & Centre for Research, dealt with this grievance. She met with the Claimant, Ms Jennings and Ms Lambert. The grievance was not upheld. Ms Wynne wrote to the Claimant on 26 October 2021. She set out her findings over 6 pages. Ms Wynne had understood the grievance to include complaints against Mr Farmer and she address this aspect in her decision.

[220]By email of 28 October 2021, the Claimant wrote to Ms Lambert, copied to Ms Wynne and his solicitor, asking questions about and challenging the content of the outcome letter. Ms Lambert replied, advising the Claimant the correct approach was for him to appeal if he was dissatisfied by the decision made. Rather than raising an immediate appeal, the Claimant continued to ventilate his concerns in correspondence, including another all staff email on 10 November 2021, in which he berated the Respondent for its reckless disregard of staff safety.

[221]The Claimant put in an appeal on 17 November 2021. This was stayed pending the outcome of the disciplinary process, which is referred to below. Risk Assessment

[222]The Claimant completed an updated individual risk assessment in May 2021. This included: Does the employee/worker have an existing mental health condition or are there indications they are having difficulty coping? I have had mental health issues since a work-stress related nervous breakdown in late 2015, which was exacerbated by further work-related stress in 2016, which resulted in a further nervous breakdown and necessitated a reduction in my working hours (and pay) to 2 days per week. It turns out that I was on the workload moe as 100% when my contract and pay were based on 80%. My mental health has been further damaged by work-related bullying by Patricia Ashman in 2017, and work-related stress and bullying (in relation to unsafe working environment) in 2020. As a result of this prolonged and repeated pattern of stress and bullying my current mental health is extremely fragile Does the employee/worker have a physical disability or other condition that may affect their return to work? I am generally fit and healthy although my physical health has been significantly impacted by these work-related mental health problems. I am sleeping poorly, my blood pressure has increased, and I have gained weight. Mental health Severe detriment to the employee’s mental health (and knock on consequences for physical health)

[223]The Claimant did not cite any risk arising in connection with autism or propose adjustments in that regard. New OH referral

[224]Following the outcome of the first grievance, on 10 September 2021 Mr Larter wrote to the Claimant seeking to arrange a new occupational health referral.

[225]On 14 September 2021, the Claimant replied to Mr Larter, complaining that he had been contacted by the Respondent’s occupational health provider. The Claimant said this unexpected approach had worsened his mental health. Mr Larter replied on 22 September 2021, saying the call had been made to arrange an appointment following the outcome of his grievance. Mr Larter also said this would be an appointment with a different occupational health practitioner. On 29 September 2021, the Claimant wrote back saying that he would not attend an appointment with the same provider. In connection with a suggested meeting he wrote: Finally, thank you for the Teams invite. However, given the complete breakdown in relationship between myself and the University, I would prefer to communicate in writing. Eighth Grievance

[226]The Claimant lodged his eighth grievance on 20 October 2021: In summer 2017, my wife (at Cambridge University) had a grant to undertake research in South Africa in September 2018. This would have involved my spending several months in South Africa (which was at the time a country where Coventry was actively encouraging staff to develop collaborative partnerships). As academic staff were being actively encouraged to develop international collaborations, I suggested that I could run a COIL project, and two international field trips for Coventry students, and carry out research at the University of Cape Town during this time. These proposals were initially met enthusiastically by my line manager (Patricia Ashman) and the head of school (Ashley Lees), and 15 months would give ample time to plan and prepare. I therefore proposed a COIL project with the University of Cape Town, planned a detailed itinerary for field trips, and wrote a research proposal to carry out part-time research work in the blast and impact laboratory at the University of Cape Town. (I work 0.4 FTE). In spring 2018, there was then an abrupt change in tone from the management. There was no suggestion that my teaching proposals were unsuitable, it just suddenly became impossible to get anything signed off (e.g. formal approval to run the field trips and advertise them to the students). My repeated requests would go unanswered. I was told by Patricia that if I wanted to accompany my family overseas I would have to resign from my job. Simultaneously, my research proposal was suddenly blocked from proceeding. Although I had been given initial feedback on an early draft of my research proposal (the suggestions of which I had incorporated into a subsequent draft), no further feedback was forthcoming, and I was blocked from submitting the proposal to the funding body. The research grants coordinator (Barry Johnson) did not answer my repeated requests for information until the 11th hour at which point I was told that the proposal had not yet been signed off by Mike Fitzpatrick (after I had been chasing for almost two months). I tried repeatedly to get to the bottom of this, and was repeatedly gaslighted: Patricia Ashman (who doesn’t have a PhD) tried to claim that my research proposal wasn’t good enough (although she refused to elaborate, it turns out that she had only read feedback from an early draft and that the proposal which was sat ready to go and awaiting sign off had addressed the early feedback). In the end, the only answer I got from the University for why I was being prevented from carrying out the planned overseas activities came from Louise Walden who stated that since I would be overseas for more than 6 months and that the University wasn’t prepared to incur the administrative cost of employing someone overseas. Fortunately I was able to take a one-year “career break” and so still had a job to come back to, but this was only done as a last resort, and the lack of salary for a year placed considerable financial strain upon me and my family. Some months after my return to work (the career break ended in September 2019), I discovered that one of my colleagues had been on a 4 month trip to an overseas University. Their research proposal had been signed off and approved without difficulty. The only material difference was that they were a full-time employee and that consequently the duration of the trip was less than 6 months. This is a clear breach of The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) state that part- time workers must not be treated less favourably than comparable full- time workers as regards the terms of their contract or by being subjected to any other detriment by the employer on the ground that they work part time. A full-time employee has been able to apply for a grant to undertake research at an overseas institution but, as a part-time employee, I have been blocked from making a similar application (as a part time employee it takes a longer calendar time to complete a similar amount of work). Disciplinary Proceedings

[227]More than three years had passed since the events about which the Claimant was complaining in his latest grievance. Mrs Walden had become concerned by the pattern of the Claimant’s grievances. It appeared to her they were becoming increasingly repetitive, historic and personal, as the Claimant sought further matters to complain about. She believed his approach was now vexatious and there had been a breakdown in trust and confidence. Mrs Walden decided not to process the Claimant’s grievance in the usual way and instead to commence disciplinary proceedings. We accepted Mrs Walden’s evidence as to the reasons for her actions. She was not prompted by reason of the information the Claimant had included in his various grievances, setting out the way in which he said the Respondent had failed in its legal duties or otherwise wronged him. It was the manner in which the Claimant raised and pursued his grievances that appeared improper, rather than the factual content of any individual grievance. The decision to commence disciplinary proceedings was made jointly with Rena Reeves, Director of Employee Relations and Magi Hopitt, Chief People Officer.

[228]Mrs Walden wrote to the Claimant on 10 November 2021: I am writing to inform you that further to the grievance you submitted on 20 October 2021, having reviewed the details of this the University considers that this grievance is out of time for review and is vexatious in nature. As such we will not be taking this forward for investigation. I am also aware that you have confirmed your intention to appeal the outcome to your grievance chaired by Carolyn Wynne and this will be held in abeyance at this time, pending the outcome of the below disciplinary process. In relation to our dialogue regarding Occupational Health, I can confirm that having liaised with the City Council, they are able to organise for you to see an external Independent Medical Officer who are contracted to work with the City Council. As such I will ask Mike Larter, People Advisor, to make arrangements to meet with you to discuss the referral and take this forward. In addition to the above, this letter serves to inform you that a formal disciplinary hearing will be arranged in accordance with the Disciplinary Procedure for Employees (enclosed) in respect to the allegations below: - That you have and continue to submit multiple and vexatious grievances and appeals against the University, the last one being dated 20 October 2021. – - That the University considers there is a breakdown in trust and confidence. This is echoed in correspondence received by yourself which states “I’m sure you can see why I feel there has been a complete breakdown in the relationship”

[229]On 18 November 2021, the Claimant was sent a revised letter in connection with the disciplinary proceedings. An additional allegation of misconduct had been added: That you were given a reasonable management instruction by Ray Farmer (Academic Dean on 23 October 2020 that you should refrain from copying in all staff to your emails due to the impact this was having on staff. It is alleged that on 10 November 2021, you sent two emails to all staff in [Mechanical, Aerospace and Automotive Engineering], in breach of this reasonable management instruction.

[230]Also on 18 November 2021, Mr Larter wrote to the Claimant saying that Mrs Walden had agreed he could be seen by an independent medical officer. Mr Larter sought to liaise with the Claimant to obtain information relevant to this.

[231]On 24 November 2021, the Claimant wrote to Mrs Walden, saying he would not open the attachment to her email (i.e. the letter of 18 November 2021) until she had dealt with his most recent grievance. Mrs Walden replied the same day, saying her letter would explain how the Respondent intended to proceed. The Claimant was, again, being deliberately obstructive. Because he did not agree with the way the Respondent was proceeding, he would not cooperate.

[232]A letter of 29 November 2021, invited the Claimant to attend a disciplinary. The allegations were the same as had previously been set out. The invitation letter also included: The case against you will be presented as possible gross misconduct and therefore please be advised that in line with the University Disciplinary Policy, a panel has been identified to hear this case. Steve Galliford, Dean – Postgraduate Studies, will chair the Panel supported by me and Aidan Friend, Associate Pro-Vice-Chancellor – Apprenticeships and Strategic Developments. A note-taker will also be present. This formal disciplinary hearing has been arranged for Thursday 16 December 2021, at 11:30am in Meeting Room 3, 1st Floor, Portal House. A Microsoft Teams link can also be sent, should you prefer to join remotely. A possible outcome of the hearing, if gross misconduct is found, is that you may be dismissed from the University without notice. Please see enclosed Disciplinary Policy for additional details should you require them. […] The management case will be presented by Louise Walden, Senior People Partner. In line with the disciplinary policy you will be provided with a copy of their management case and any other documents they intend to rely upon no later than 3 days before the hearing. As you work on Wednesdays and Thursdays, exchange will take place on Thursday 09 December 2021. During the hearing you will be afforded the opportunity to respond to the allegations and question management. You are also required to provide a written statement in advance of the hearing and you should present this along with any other documents to me in line with the timescales above. If you require any clarification of this, please contact me directly.

[233]Notably, the Claimant was not required to attend in person at the Campus. He could do so if he wished, or he could participate by Teams. Because he caught Covid, the disciplinary hearing was postponed.

[234]On 22 December 2021, the Claimant wrote to Mrs Walden saying he had returned to work that day, was not feeling well and having read through her email he asked her which grievance she considered to be vexatious. Mrs Walden replied the same day saying she was sorry to hear the Claimant felt unwell, advising him to contact his line manager if he was too ill to work, saying that a member of the People Team would be in touch with him to outline the next steps and with respect to the disciplinary allegations, explaining he would be provided with the management case detailing this. The Claimant responded saying he agreed there had been a complete breakdown of trust and confidence and repeating his previous question about the vexatious grievance. The Claimant also submitted a further DSAR.

[235]The Claimant’s witness evidence included that he believed the disciplinary case against him had been dropped, because he did not receive any correspondence about it in January 2022. We found it difficult to accept this genuinely reflected the Claimant’s state of mind at that time. He had been told he faced disciplinary proceedings for alleged gross misconduct, that might result in his dismissal. We were not persuaded by the parallel the Claimant sought to draw between this situation and the unauthorised absence letter he received in 2019. With respect to the latter this misunderstanding was quickly resolved in correspondence. OH Referral

[236]On 26 January 2022, Mr Larter wrote to the Claimant again in connection with the occupational health referral. He said he had identified two independent advisers and sought the Claimant’s response.

[237]On 2 February 2022, the Claimant wrote back saying he would source his own occupational health practitioner as the University had agreed he could. We pause to note that whilst the Claimant was free to see any medical adviser of his own choosing, the Respondent’s email of 18 November 2021 did not either invite him to find his own occupational health provider or say the Respondent would fund this. On 4 February 2022, Mr Larter wrote: Thank you for your email. I am sure you can appreciate that for an individual to source their own Occupational Health practitioner, I would have concerns about the impartiality of that practitioner. It would also be difficult to put any health related reasonable adjustments in place that is not informed by Occupational Health. Could you therefore please provide an answer to my email of 18th November, attached again for ease. This will enable the University to be properly informed about how it can support you, including consideration of reasonable adjustments.

[238]The Claimant replied on 9 February 2022, challenging the impartiality of any adviser appointed by the Respondent: Why do you consider it legitimate for *you* to have concerns about the impartiality of an OH practitioner that *I* have sourced, and yet you feel that an oh practitioner which *you* have sourced would be impartial (despite evidence that the previous OH practitioner that you have sourced was demonstrably *not* impartial)?

[239]An impasse was reached. The Claimant would not agree to be seen by someone the Respondent appointed. The Respondent would not agree simply to pay for him to get such advice as he saw fit.

[240]For the avoidance of doubt, there was no evidence whatsoever to support a conclusion that the Respondent had at any point sought to obtain a biased, or skewed medical opinion. Separately from the question of independence, the Respondent had an existing agreement for the provision of occupational health advice by Coventry City Council and to the extent it went outside of this, would need to follow its own procurement procedure.

[241]The Claimant’s unwillingness to undergo an occupational health referral, otherwise than on the basis the Respondent would pay for him to choose the assessor, prevented the Respondent from getting professional advice in connection with his ASD, anxiety or depression, and any adjustments which might be necessary in that regard. Disciplinary hearing

[242]On 2 March 2022, Ms Oguzie sent a letter inviting the Claimant to a rescheduled disciplinary hearing on 23 March 2022 by email. Because of the need to preserve confidentiality, the Respondent’s practice was to send emails of this sort with restrictions, that limited their onward transmission. There was, however, nothing to stop the Claimant from printing the email and sending it on, or contacting the Respondent and asking for an email to be sent without restrictions. They were, after all, put in place for his benefit rather than for the Respondent's. If the Claimant did not wish for that element of security, he could ask for it to be removed.

[243]Once again, the Claimant was told he could participate by Teams rather than attend on-campus. He was also warned that if he did not attend, the disciplinary hearing may still go ahead. The letter informed the Claimant that Mrs Walden would present the management case and he would receive a copy of this no later than three days before the

hearing.

[244]The Claimant’s evidence at the Tribunal was that he did not see this email because he had a backlog in his inbox. We did not accept this was so. The Claimant had not previously demonstrated a failure to respond to correspondence in a timely fashion. On the contrary, the Claimant frequently fired off responses within minutes of receiving something with which he did not agree. It is more likely, the Claimant was deliberately avoiding emails about the disciplinary process because he objected to and did not wish to participate in it.

[245]There was nothing to suggest to Mrs Walden, Ms Oguzie or anyone else involved in the disciplinary process, that the Claimant would not receive emails sent to him at this time. We do not accept the Claimant told Mrs Lambert about a difficulty keeping on top of his emails or that he was struggling with a huge backlog. Indeed, his failure to do this, in circumstances where they enjoyed a good interpersonal relationship, tends to undermine the credibility of the Claimant's assertion in this regard. We note also, the Claimant was quick to put his complaints and concerns in writing and we were referred to no correspondence sent prior to the disciplinary in which he told Mrs Lambert or anyone else about this alleged difficulty.

[246]Nor did we accept the Claimant's evidence that he believed the disciplinary had gone away. We are not persuaded the Claimant would have accepted ambiguity over such an important matter, which seems inconsistent with his approach more generally.

[247]There was, therefore, no need for Mrs Oguzie to contact the Claimant by other means. The possibility of him choosing not to open emails or refusing to attend the disciplinary hearing was foreseeable, but that was a matter for the Claimant to decide upon. It was not the Respondent’s job to compel his participation.

[248]Ms Walden prepared the management case. She set out the background starting in October 2020 with the Claimant’s Covid concerns, the email traffic including that sent to the whole team and the Claimant’s solicitor, Mr Farmer’s attempt to meet with the Claimant and instruction to raise his concerns through line management rather than to the faculty as a whole. Ms Walden referred to the impasse reached with respect to obtaining occupational health advice. She also summarised the outcome to the Claimant’s various grievances and his response to the same. The Claimant’s intemperate language, personalised complaints and repeated statements suggesting a loss of trust and confidence were highlighted. Ms Walden said that employees were entitled to submit grievances but by the point of number 8, it was believed the Claimant was doing so vexatiously. In connection with the loss of trust and confidence, Ms Walden relied on the highlighted material, the Claimant’s objection to being contacted by his personal email address when he had failed to successfully login to the Respondent’s systems and copying his solicitor into correspondence with his employer. For the failure to follow Mr Farmer’s instruction of 23 October 2020, the Respondent relied upon the Claimant’s emails of 10 November 2021, which were said to be unprofessional, offensive and a breach of confidentiality.

[249]On 17 March 2022, Ms Oguzie sent an email to the Claimant with a link to the management case. Disciplinary Meeting

[250]On the morning of the hearing, 23 March 2022, Ms Oguzie sent the Claimant a Teams link, so that he might attend remotely. Mr Galliford was the chair. He was accompanied on the panel by Ms Oguzie and Mr Friend, Associate Pro-Vice Chancellor. The Claimant did not attend. This in itself did not come as a great surprise, as there had been a pattern of the Claimant attending some meetings and choosing not to join others. Having waited for the Claimant to arrive, when he did not do so, the panel decided to proceed in his absence.

[251]After the meeting had begun, Ms Oguzie received an email from the Claimant at 10:21 am: I have not read your previous emails. So far this morning, I have been working on preparing teaching work that I am due to deliver this afternoon. Please contact my lawyer, Mr Matthew Robbins, who is copied to this e‐ mail.

[252]At 10:34 am, the Claimant solicitor wrote to the Respondent: My understanding of this situation is that my client has not received notice of any hearing and in any event, even if he did (for example an e‐ mail that was sent, but not opened or received or responded to), he did not confirm his ability to attend, nor would he have done, given his teaching commitments today and the need to prepare for those this morning. I must put you on notice that to proceed with any hearing in my client’s absence, when he has not confirmed he can attend, would be a fundamental breach of the duty of mutual trust and confidence that should exist between an employer and an employee. The point is even more resonant, given my client’s mental health – a fact that you are formally aware of. Please can you forward me a copy of the “occupational health assessment” that presumably confirms my client is well enough to start attending work again and well enough to attend any hearing? I look forward to receiving the same please.

[253]These two emails were not accepted as providing a satisfactory explanation for the Claimant’s non-attendance and the disciplinary hearing continued. Notably, the Claimant made no attempt to join the hearing, preferring instead to go about his usual teaching duties. Following presentation of the management case and deliberation, the panel decided to support dismissal of the Claimant.

[254]At the Tribunal, a great deal of time was spent by the Claimant addressing the evidence of the Respondent's witnesses that it appeared he had “tentatively” accepted the Teams invite. Ms Oguzie and Mr Galliford interpreted this as an indication the Claimant had seen the invitation and responded to it. The Claimant contended that “tentative” was the default position in an Outlook calendar and would appear without the recipient of the invitation having taken any action. This was, however, something of a red herring. The Teams link was only sent that morning. It could not have been accepted at any earlier point. This did not say anything about whether and when the Claimant looked at the emails he had been sent previously. Furthermore, it was clear from the witness evidence the hearing would have gone ahead anyway. The “tentative” point did not make any difference. Ms Oguzie and Mr Galliford were satisfied the Claimant had been properly notified of the disciplinary hearing and provided with the management case as he should have been. They believed any default was his own, rather than that of the Respondent.

[255]The Claimant wrote again at 11.51am: I am checking back through my e‐mails and found this which you sent at 4:31pm on Thursday 17th March. As you will no doubt be aware, I only work Wednesdays and Thursdays (I reduced to 40%FTE in an attempt to protect my mental health after nervous breakdowns arising from work‐related stress). Even if I had been checking my e‐mail non‐stop during the afternoon, I am not quite sure how you expected me to receive, process and respond to this information in advance of a meeting at 9am on my next working day Wednesday 23rd March (to which I only received a calendar invite at 8:24am on the morning of the meeting). Furthermore, I note that clicking on the link provided in your e‐mail does not bring me to a document file ‐ it simply brings up a dialog box which says that the link cannot be found and suggests to make sure that I am using the correct location or web address. As such, I still do not know the details of the accusations which have been levelled against me. Please direct any further correspondence to my lawyer, Mr Matthew Robbins as these University's continued bad‐faith actions are even now having a significant detrimental effect upon my mental health.

[256]We note the Claimant said nothing at this time about a backlog of emails meaning that he had been unable to read that sent by Ms Oguzie two weeks previously. As far as the link is concerned, it is unclear why this did not work for the Claimant. Had the Claimant attempted to open these documents before the disciplinary hearing and encountered a difficulty, he could have sought assistance from the Respondent in this. Ms Oguzie replied: I write to acknowledge receipt of your, and your legal representatives, emails this morning. This is an internal matter, and I will not include your legal representatives within the correspondence. As you are aware, I wrote to you on 29 November 2021 to advise you that a disciplinary hearing had been arranged, and the allegations were included in the letter. I then wrote to you on 09 December 2021 to advise that this would be postponed, as I had been advised that you were unwell. I then wrote to you on 02 March 2022 with the new arrangements, outlining that as it had been rescheduled, it may proceed in your absence, and sent the link to the attachments, as identified below on 17 March 2022. You did not respond to any of these emails. I sent you a Microsoft Teams link this morning, which will have shown in your calendar. This was because you had not indicated that you would be attending in person, as was outlined in the letter, so although you had not advised that your required the link, I sent it to provide you with an opportunity to attend. The hearing took place this morning, and the panel will issue you with an outcome in the coming days. You will have the right to appeal the outcome, and I would advise that all of the issues you have raised, after the commencement of the hearing, may form part of any appeal. I do not think it would be useful to enter into any further dialogue, until you have received the outcome letter.

[257]The Claimant wrote again to Ms Oguzie, this time his representations included the suggestion that the disciplinary proceedings were invalid because they had been sent by email and he did not accept this method of service.

[258]Before the Tribunal, the Claimant argued the requirement that the management case be sent to the employee 3 working days before the disciplinary hearing, should be calculated by reference to the employee’s working days. On this basis, an employee working one day a week would be entitled to 3 weeks’ notice of the management case. We do not agree. There is no basis to construe the policy in this way. Indeed, it expressly provides that working days are Monday to Friday. We accepted the Respondent’s practice was not to release employees from their usual duties, so they might use working time to prepare to respond to disciplinary allegations. Employees would have to do that in their own time. Dismissal Recommendation

[259]By letter of 31 March 2022, the Claimant was advised of the outcome of the disciplinary meeting. Mr Galliford first addressed the circumstances in which the meeting went ahead: The disciplinary meeting was originally scheduled for 16 December 2021, and was rescheduled because you were off sick. You were advised of the new date of the meeting on 02 March 2022, in a letter which outlined arrangements, advised that you could request a Microsoft Teams link to attend remotely, confirmed that the hearing may go ahead in your absence and provided you with the opportunity to attend, send a representative on your behalf or provide statements or additional documentation to the panel. You were then provided with all documents relating to the hearing on 17 March 2022. However, you did not respond to either of these emails. Jo Oguzie wrote to you on the morning of the hearing, providing you with a Teams link, and advising again, that the meeting may go ahead in your absence, if a reason for postponement was not provided. The panel opened the Teams meeting at 09:30am, and left it open for you to join for 15 minutes. You did not send any communication, or join the meeting, although the calendar invite had you marked as “tentative”. The hearing went ahead, and concluded at just before 11:00am. After the meeting, Jo Oguzie reviewed her emails, and found correspondence from you, sent at 10:21am, in which you advised that you had not read any of her previous emails, and so far that morning, you had been preparing teaching materials ready for delivery that afternoon. You also advised her to contact your lawyer. You then sent another email at 11:51am in which you informed her that you had gone through her previous emails, could not access the documentation that had been sent, and challenged the appropriateness of the documents being sent after 4pm on your last working day before the hearing. Jo responded to you at 12:18pm, advising that the hearing had already taken place, outlined the dates on which you had been contacted, advised that the letters contained all of the information you required, along with contact information if you had any concerns, and advised that any issues you had raised after the commencement of the disciplinary hearing may form the basis of an appeal against the outcome.

[260]The panel’s reasoning with respect to the disciplinary allegations was set out over 4 pages and included: Allegation 1 […] you had submitted a grievance relating to occupational health, an external provider, on 18 February 2021, and you were advised that this should be raised as a complaint with them. You then submitted 2 other grievances on 18 February 2021, and these were responded to on 19 February 2021, outlining the steps that would be taken . On 24 February 2021, you submitted 3 further grievances. You then submitted another grievance on 23 June 2021 and a further grievance on 20 October 2021. In total, you have submitted 8 grievances and 3 appeals. These have all been addressed appropriately. […] they were repetitive in nature, and becoming increasingly personal towards key individuals and unreasonable.[…] some of the allegations you made were historic in nature, suggesting that you were attempting to find issues to raise as concerns, despite not raising them at an appropriate time. […] a vexatious complaint as one that is pursued, regardless of its merits, solely to harass, annoy or subdue somebody; something that is unreasonable, without foundation, frivolous, repetitive, burdensome or unwarranted. We find that whilst you initially believed that you had grounds to raise concerns, your actions, through repeated submission of issues that had already been addressed, the number of grievances submitted in a relatively short-time frame, plus your actions in terms of making public the correspondence with key individuals, do meet the definition outlined above. […] We also considered whether a mental health condition may have impacted on your behaviour. In your correspondence with the University you state that your mental health is impacted, and a number of your sickness episodes have been recorded as "Emotional/ Psychological Stress - Work related" . This has been difficult for the panel to assess, because there is no information from Occupational Health that would advise on your condition, potential impacts and mitigation, as you have raised a complaint about the original report, and have not responded to confirm that you will meet with the independent occupational health provider that has been identified to provide a further assessment. Based on the information we have available to us, we find that you may have felt that your initial concerns had not been addressed appropriately, and this resulted in your repeated submissions of the same issues in different grievance processes. However, we do not find any mitigation for the submission of historic information or the tone and language used in relation to individuals within those processes Therefore, this allegation is upheld. Allegation 2 […] numerous examples, also highlighted in the management case, in which you have stated that you have lost trust and confidence in the University. […] number of grievances you have submitted is another indicator that you have lost trust and confidence in the University. […] Ray Farmer and Katie Jennings had tried to meet with you informally, and your line manager has also tried to work with you to support you, but you have not engaged. […] […] Having reviewed the correspondence, including those which you have sent to Jo Oguzie since the hearing, it is clear that you believe that the University continues to act in bad faith towards you, and therefore the relationship cannot be restored. Allegation 3 […] despite receiving the clear instruction on 23 October 2020, you sent 2 emails on 10 November 2021 relating to 2 separate grievance processes, to all staff within MAA. In one email trail you question whether the investigating manager is "mentally incapable of following the issues" and state that she has made a "rather arrogant" epithet. In the second email trail, you request clarity around a statement made by your line manager in relation to a different grievance. When she asks you to follow the appeal process, you continue to press her for information, and when she refers you to the appeals process again, you copy in all MAA staff to your response in which you allege that you were threatened by a senior manager, that there was a fabrication of events in relation to the grievance outcome, and demand a response, stating that you will have to raise another grievance if you do not receive the information. This could be perceived as a threat. […] this had a significant impact on the colleagues named who were horrified and felt that their reputation was damaged by your conduct. In addition, this caused members of the school that were copied into the email to be upset by the content. […] Both of these incidents are a breach of the grievance procedure which states: 'The nature of the grievance and the names of any employees involved will, as far as is reasonably practicable, be kept confidential. Only the People Team and those directly involved need to be kept informed about the grievance and all parties are expected to maintain confidentiality throughout the process. Failure to do so may be subject to a separate disciplinary procedure". They are also a breach of the Code of Conduct of Staff Behaviour which states "All staff are expected to maintain professional standards of conduct, both while at work and also in their day-to-day dealings with the wider community, especially when representing the Group in external activities" and ... "staff are expected to use their best endeavours to work in a collaborative and cooperative manner to create productive and supportive working relationships, in which the rights and dignity of all are respected". As you did not attend the hearing, we considered potential mitigation in relation to these issues. It is possible that you may have considered that the issues you sought to raise were relevant to all staff, because they linked to health and safety within the school. It is also possible that you did feel some stress or emotional turmoil after being told that the matter was being referred to a disciplinary hearing. It is the panel's view that this does not however justify the conduct that you displayed when sending these all staff emails, and using such inappropriate language and tone to colleagues. […] Having considered all of the information available to us, we find that your actions in relation to allegations 1 and 3 are tantamount to misconduct. In respect of allegation 2, we find that your actions throughout this timeframe, including the failure to engage with the disciplinary process from November through to the hearing date, demonstrate that there is a breakdown of trust and confidence between yourself and the University, and this cannot be restored. As such, it is the intention of the panel to recommend to the Vice- Chancellor that your employment with the University should be terminated with notice. In accordance with our practice regarding a potential dismissal with notice under the University's Disciplinary Procedure, you have the opportunity to make representations to the Vice-Chancellor (or other such member of staff to whom the Vice-Chancellor has delegated his authority in this matter acting on his behalf) before a final decision is made. The representations can be in writing or in person. If you choose to make representation in person, you may be accompanied by a Trade Union representative or colleague (companions may not act in a legal capacity). If you intend to make representations please confirm this in writing to Jo Oguzie, Director of Partnering, via email at […] within 5 working days of the date of this letter, indicating whether you wish to meet with the Vice- Chancellor or intend to submit a written case. Jo will then make the necessary arrangements for you. If we do not hear from you by that date then the Vice-Chancellor (or delegated authority) will consider the information made available to him through my recommendation.

[261]We are satisfied the letter accurately reflects the reasons why the disciplinary panel made their decision. They believed the Claimant had raised a large number of grievances within a relatively short period of time, doing so repetitively in circumstances where he disagreed with the outcome. His complaints became more personal (i.e. he made unjustified attacks on individuals). He also started to raise grievances about matters long after they occurred, without a satisfactory explanation for why he was doing so only at that point. The Claimant had not said this pattern was related to ASD or otherwise acknowledged there might be anything untoward in his conduct needing to be explained. The failure to obey a management instruction appeared to be made out on the papers. The evidence of trust and confidence having been lost came from the Claimant's own words and the other conduct of which he had been accused. Representations Hearing

[262]Under the Respondent’s disciplinary procedure, whilst the disciplinary panel make a recommendation, there is then a hearing in front of the Vice Chancellor before a final decision is made. This is known as the representations hearing. The employee has another chance to argue against dismissal. The disciplinary policy does not specify the matters to be considered at this stage, and the Vice Chancellor has a wide discretion.

[263]On 5 April 2022, the Claimant’s solicitor wrote to the Respondent in connection with an appeal against dismissal, seeking additional time for this to be presented and proposing an occupational health referral for the Claimant. Mr Robins made no reference to the impasse that had been reached in this latter regard. He asked the Respondent to “call off the attack dogs” and allow without prejudice discussions.

[264]Ms Oguzie replied, explaining the next stage in the procedure was the representations hearing and offering an extension to 28 April 2022.

[265]After a number of letters from the Claimant’s solicitor, the Respondent instructed its own solicitor to correspond with him. In a letter of 17 May 2022 on the Respondent’s behalf, its solicitor wrote: We note from your most recent letter that Mr Lemanski alleges he is not aware of the disciplinary case against him because he has been unable to open the disciplinary paperwork. This is not correct. Our client has provided Mr Lemanski with the relevant papers on multiple occasions, and in multiple formats, including sending a copy directly to you. There is no technical reason why Mr Lemanski cannot open the papers (unless perhaps he is not connected to the University’s VPN) but we appreciate that perhaps there is a personal reason why he is not choosing to do so. It is for this reason that our client forwarded a copy of the outcome letter directly to you on 31 March 2022, as instructed by Mr Lemanski. You should therefore have read and explained the basis for the University’s recommendation to dismiss Mr Lemanski to your client already so that he would be in a position to respond promptly, but you have seemingly not done so. It is not in his best interest to have no knowledge of the basis of the proceedings he is facing. With this in mind, we enclose a further copy of the outcome letter so that you can update him, if he still feels unable to read them himself. Please let us know immediately if you are unable to open the documents for any technical reason. Notwithstanding the above, we acknowledge that Mr Lemanski has now confirmed he would like to make formal representations to the Vice Chancellor (VC), as is his right under paragraph 8.2.5 of the University’s disciplinary procedure. We note however that you have asked for Mr Lemanski to be referred to Occupational Health beforehand. This request is denied. Mr Lemanski has been provided with a number of opportunities to meet with Occupational Health previously but he has always refused to engage. As we are sure you will appreciate, our client must now conclude the disciplinary process that has already been ongoing for a considerable time. The University cannot accommodate any further delays to the process. However, that being said, in recognition of the fact that Mr Lemanski may be struggling with the demands of the process, and despite the prohibition on legal representation set out in the University’s procedures, we shall allow you, as Mr Lemanski’s solicitor, to support him in making written submissions to the VC on this occasion. Please kindly provide your client’s written submissions, to us, by no later than 31 May 2022. No further extensions to this deadline will be granted. If submissions are not received by this date without good reason, our client reserves the right to proceed with the disciplinary process and seek the VC’s approval of the recommendation to dismiss your client. Irrespective of whether Mr Lemanski submits representations to the VC, he will of course retain his right to appeal in accordance with section 10 of the

procedure.

[266]On 25 May 2022, the Claimant emailed Mr Larter complaining that he had not had a reply to the question posed in his 9 February 2022 email. Mr Larter responded to this on 30 May 2022, reiterating the Respondent’s position on a further OH referral: Please find attached a copy of my email sent to you on 23 February setting out the University’s position with regards to Occupational Health. We remain willing for you to attend an independent Occupational Health advisor, but as you have previously been advised, this provider must be sourced by the University so we can be confident of their credibility, having undertaken our own due diligence on such providers. If you would like to attend an Occupational Health advisor of your own choosing you are of course free to do so, but the University will not cover the cost of that attendance. If you decide to proceed with that option, and wish to rely on their report in the ongoing disciplinary process, we will also require you to attend our chosen provider as well so that we can consider both reports. Please let us know if you wish to proceed on this basis and we will make arrangements for attendance with our chosen independent provider. We will not be engaging in any further dialogue with you regarding the University’s choice of provider.

[267]There was a dispute between the parties’ solicitors about whether and when the management case was provided. A further link was sent to the Claimant’s solicitor on 30 May 2022.

[268]On 31 May 2022, the Claimant’s solicitor wrote saying the Claimant wished to present his representations “orally and with occupational health support”. There appears to have been a misunderstanding in this regard. Occupational health provide advice, not care. The Respondent did not agree to have occupational health in attendance.

[269]The Claimant did not submit written representations.

[270]The Claimant says he did not receive the management case until 17 June 2022. We accepted the Respondent’s evidence, namely that no attempt was made to access the link sent to Mr Robins until 16 June 2022. It appears this may be related to the taking of annual leave, although it was unclear whether that was the Claimant’s, his solicitor’s or both. In any event, delay as a result would be a matter between the Claimant and his solicitor.

[271]By email of 8 June 2022, Ms Hopkins of the People Team invited the Claimant to the representations meeting: As you are aware, In accordance with our practice regarding a potential dismissal with notice under the University’s Disciplinary Procedure, you have the opportunity to make representations to the Vice-Chancellor(or other such member of staﬀ to whom the Vice-Chancellor has delegated his authority in this matter acting on his behalf) before a ﬁnal decision is made. The representations can be in writing or in person. I understand that you have requested to make representation and I believe this is a request to make representations in person.

[272]On 15 June 2022, the Claimant wrote to Ms Hopkins and copied to his solicitor, making a disclosure request, in the alternative making another DSAR. She replied declining to provide this material, saying that the Claimant had been provided with the management case. She did not agree to postpone the meeting pending further DSARs from the Claimant.

[273]On 17 June 2022, the Claimant’s solicitor wrote asking for details of the mental health representative who would be attending the representations hearing to provide support for the Claimant. The Respondent had not agreed to provide occupational health at the representations meeting.

[274]The representations hearing took place on 22 June 2022. We are satisfied the Respondent’s notes of this meeting are a fair representation of the discussion which took place. Mr Marshall was the decision-maker. He explained this was not a rehearing, nor a formal appeal, but rather an opportunity for the Claimant to make further representations before a final decision. The Claimant had prepared a script and was given an opportunity to read from this. The Claimant spoke at length and sought to justify his grievances by arguing their merits. Some of the Claimant’s points were about the provision of documents and service of the management case. Mr Marshall suggested those latter points might be more appropriate for an appeal. We do not accept, as suggested by the Claimant, that Mr Marshall was revealing a predetermined decision. The reality of the position was that dismissal had been recommended, it was plainly an outcome that may follow and if it did, an appeal would be the next stage of the process. The Claimant also said that he was open to mediation and did not consider the breakdown in trust and confidence to be irretrievable.

[275]Shortly after the meeting, Ms Hopkins wrote to the Claimant: I have taken full notes of the meeting but if you wish us to consider the written document you were referring to, that would be most helpful. Please just send through as an attachment.

[276]Ms Hopkins had anticipated receiving something from the Claimant immediately, but this was not forthcoming. She wrote to Mr Marshall: Hi Ian – here are the notes from today’s meeting for you to review. I haven’t had anything from him and actually regret asking because I don’t want to wait for them. I think the notes I have taken cover all the points he made, so, this afternoon I will draft an outline of an outcome and would be grateful if you could perhaps send a few lines on your decision for each allegation and conclusion.

[277]Mr Marshall decided not to await the Claimant’s script. He made a decision based on the information he had already. He wrote to Ms Hopkins later that afternoon: Thanks for the notes. They appear comprehensive. With regard to the decision to dismiss, I confirm the decision. With regard to Allegation 1 having read the management case and listened to your representation, I agree with the management case that you continue to submit multiple and vexatious grievances and appeals against the University. With regard to allegation 2 having read the management case and listened to your representation, I agree with the management case that the University considers there is a breakdown in trust and confidence. While you highlighted during your representation that you felt the situation could be improved and recovered via mediation, at this stage that is not possible. With regard to allegation 3 having read the management case and listened to your representation, I agree with the management case that you were in breach of this reasonable management instruction not to send group emails to your department. I listened to your interpretation of the instruction from Ray Farmer not send group emails to the department. I concluded that you understood the meaning of the original instruction and chose to ignore it. There is a difference between asking for help related to teaching and broadcasting an email regarding grievances and disciplinary matters.

[278]Notwithstanding what had been said about this not being a rehearing, it is apparent the Claimant did make representations about the substance of the disciplinary allegations and Mr Marshall considered whether he was satisfied the management case had been made out. Dismissal

[279]By a letter of 30 June 2022, the Claimant was informed of his dismissal. Mr Marshall’s reasons were set out over 5 pages and included: Allegation 1 […] The reason why these grievances were considered by the University to be vexatious was due to them being repetitive in nature and that they were becoming increasingly personal towards key individuals. Some of your complaints were also historic, which suggested that you were finding issues to raise. The disciplinary panel defined a vexatious complaint as “one that is pursued, regardless of its merits, solely to harass, annoy or subdue somebody; something that is unreasonable, without foundation, frivolous, repetitive, burdensome or unwarranted”. The disciplinary panel considered that, on the facts, your repeated grievances were vexatious, and upheld this allegation. […] you stated that you considered that raising multiple grievances did not in its nature mean they were vexatious. You said you felt repeatedly stonewalled when you tried to resolve issues informally. You agreed that maybe some but not all of your grievances were interlinked. You stated you believed that having made a public interest whistleblowing complaint in late 2020 that this led to a threatening pattern of behaviour from the University. You said you had raised separate grievances to give an opportunity to allow each one to be considered on its own merits and stated that the correct test of whether the grievances were vexatious was whether they were made in good faith rather than the grievance outcome. Having read the management case and listened to your representation I consider that the University considered each grievance appropriately, and in accordance with its procedures. […] I therefore agree with the management case that you have continued to submit multiple grievances and appeals; you agree that many were interlinked and I am not satisfied by your submissions that they were all submitted in good faith. I also agree with the disciplinary panel’s view that these grievances are, on the balance of probability, vexatious. Allegation 2 […] At the disciplinary hearing, numerous examples were considered (which were also highlighted in the management case), where you stated that you have lost trust and confidence in the University. […] It was also explained that the number of grievances you had submitted was an indicator that you have completely lost trust and confidence in the University. I understand that steps had been taken to rebuild trust and confidence with you. Both Ray Farmer and Katie Jennings have previously tried to meet you informally, and in addition, your line manager has tried to work to support you but you did not engage with the processes. […] […] Having read the management case and listened to your representations, I agree with the management case that the University considers there is an irreparable breakdown in trust and confidence. While you highlighted during your representation that you felt the situation could be improved and recovered via mediation, your previous correspondence with the University has stated the opposite and you have not indicated you would be willing to partake in mediation before this hearing. Further, and in any event, the University has concerns that you will not engage proactively with a restorative process given that you have failed previously to engage in our informal attempts to repair the relationship. The relationship between you and the University has been damaged further since these informal attempts were ignored, in particular with you refusing to communicate with the University without your solicitor being copied into correspondence, and therefore I am not satisfied that the relationship, as it is now, is capable of repair. Allegation 3 […] I listened to your interpretation of the instruction from Ray Farmer not to send group emails to the department and, despite your comments to the contrary, I concluded that you understood the meaning of the original instruction but chose to ignore it. There is a difference between asking for help related to teaching, and broadcasting an email regarding grievances and disciplinary matters. […] You were also aware that the hearing was going to take place in your absence, and that you were given the opportunity to be represented. When the University had not heard from you with regards to the meeting, it sent you a Teams invite to ensure you could attend remotely. Notwithstanding this, you failed to respond to communications regarding the disciplinary process, or join the meeting, although the calendar invite you had been sent by Jo Oguzie, was marked as “tentative” and her email sending the Teams link had been read in sufficient time to attend.[…] […] you have been obstructive in relation to arranging Occupational Health attendance and have refused to attend any provider sourced by the University even though significant efforts have been made to source someone independent. You have however insisted that you attend your own Occupational Health provider. You have been advised that the University is happy for you to attend your own provider, but the University will not cover the cost of this as the University requires you to attend a provider upon which it has carried out appropriate due diligence to ensure their competency. Considering all of the evidence and information presented before me, including the representations you have made, I concur with the disciplinary panel's recommendation of dismissal with notice on the grounds of misconduct for allegation 1 and 3. I also concur that, regarding allegation 2, there has been a fundamental breakdown of trust and confidence between yourself and the University, which I am not satisfied could be restored. I therefore now inform you that your employment will terminate and that your last date of employment is effective from the date of this letter, 30 June 2022. […]

[280]We are satisfied the letter accurately reflects Mr Marshall’s reasons for deciding to dismiss. He adopted the reasoning of the disciplinary panel. He believed the Claimant was guilty on two counts of gross misconduct (allegations 1 and 3) and there had been an irreparable breakdown of trust and confidence (allegation 2). Mr Marshal was satisfied the Claimant had submitted multiple, repetitive, increasingly personal grievances, intending to vex the Respondent and sent group emails ignoring a clear management instruction to desist, which he had understood. Mr Marshall was also convinced there had been an irreparable breakdown in the relationship between employer and employee.

[281]Notably, the Claimant did not at the time of his dismissal, say the reason he brought so many separate and repetitive grievances, or employed rude and aggressive language, or raised historic allegations, was because of autism or for any other health reason. On the contrary, he sought to justify his actions.

[282]At the Tribunal, the Claimant suggested he was put at a disadvantage because the scope of the representations hearing had not been adequately explained to him, in particular he did not realise it was an opportunity to apologise and show contrition. We do not agree. An employee facing misconduct allegations can always choose to apologise for what they have done, in order to mitigate the sanction. That does, of course, depend on them being willing to acknowledge that they have done some wrong. In this case, it is abundantly clear the Claimant did not accept he had done anything that was not right and proper. The lack of contrition on his part had nothing to do with a misunderstanding about the power Mr Marshall had. Even at the Tribunal, 5 years later, the Claimant was largely of the same view. By the end of the proceedings here, he had only just arrived at the point of accepting that some of his language may have been inappropriate.

[283]The Claimant’s evidence was that the reason he submitted so many separate grievances, was because as an autistic person he found it easier to keep the issues separate. This was reflected in the list of issues, as one of the matters the Claimant contended arose from his disability: 9.2.8. A tendency to wish to break allegations down into matters to be dealt with one at a time (associated with autism);

[284]Whilst the Claimant's autism is likely to have been a factor in his approach to complaining, generally, the evidence we were referred to does not support the specific trait at 9.2.8. The psychiatrist’s report did not include this behaviour as a symptom of the Claimant’s ASD and we are not satisfied it was. The Claimant has enjoyed a successful academic career in the field of engineering. Inevitably, his work will have involved the analysis of complex systems with many factors in play at the same time. We are not satisfied the Claimant finds it difficult to deal with more than one problem at a time. Notably, he chose to present a single Tribunal claim form containing many complaints, rather than a series of separate ET1s. The matter at 9.2.8 said to arise from his disability, looks very much like an after the fact rationalisation by the Claimant of the behaviour for which he was dismissed and that is our finding. Whilst the Claimant’s early grievances were unremarkable (in light of his concerns) as their numbers grew, the inference we draw is that he was looking for things to complain about, so that he might continue his dispute with the Respondent. The Claimant had adopted a disputatious and litigious mindset. This was especially so by the point of grievance 8, where the Claimant was reaching back into the distant past.

[285]We do, however, accept that the Claimant's grievances, the manner in which he expressed them, including number 8, his failure to follow Mr Farmer’s instruction and the matters found by the Respondent to show a breakdown in trust and confidence were fuelled to some extent by: [9.2.2] low mood (associated with anxiety/depression); [9.2.9] a tendency to be direct in conveying thinking without the diplomacy a neurotypical person would do (associated with autism and depression); [9.2.12] A tendency to become overwhelmed in very stressful situations (associated with autism, and exacerbated by anxiety/depression), leading to: […] (2) a “fight-or-flight” response where the Claimant becomes disinhibited in defending his position; [9.2.14] a black and white sense of right and wrong, and extreme frustration when this is violated (associated with autism).

[286]The Claimant's certainty of the correctness of his position, belief that the Respondent was responding to his complaints inadequately and dishonestly (bad faith etc) and reaction to this, appears similar to that described in the assessment report when he felt that others were cheating or moving the goalposts. He became frustrated and angry. The Claimant's rude and aggressive correspondence fits with the description of not merely directness, but deficits in reciprocal social communication and social interaction.

[287]We should also say we accept that when giving his evidence the Claimant believed what he told us was true. He has convinced himself it was necessary to bring all of these grievances in the way that he did because of his ASD and he was not to any extent at all trying to be difficult. While he may believe that now, we are not persuaded. The passage of time can affect the reliability of witness evidence. Sometimes this will relate to the detail of what did or didn’t happen. On other occasions, the problem is accurately recollecting past thought processes. This can be especially difficult if the person was then in a heightened emotional state. More reliable evidence can often be found in the contemporaneous documentation. Much of that we have read demonstrates the Claimant was angry, aggressive and obstructive. We find he was, to some extent in the way he raised his later grievances, trying to be difficult. We do not say the Claimant believed his individual grievances, or any of them, to be unmeritorious. We do, however, find that the way in which he chose to divide and present them, in particular towards the end and by the point of number 8, was intended to vex. It is possible for someone to believe what they say is true and yet at the same time, to choose to complain in a way and at a time intended to cause trouble for another. Because he believed the Respondent was making things difficult for him, the Claimant felt entitled to reciprocate. Because he believed he was right and the Respondent wrong he also felt able to ignore Mr Farmer’s instruction.

[288]The link between the Claimant's impairments and the conduct for which he was dismissed is a complex one. His disability was certainly not the only factor in play, but it was at least part of the reason why he proceeded as he did. Appeal

[289]The Claimant appealed against his dismissal by an email of 13 July 2022. He made various complaints about the process that had been followed and how documents were or were not provided to him. The Claimant also attached a lengthy document denying knowledge that the disciplinary hearing would be going ahead, and then contesting the allegations and management case. The Claimant denied any vexatiousness in his grievances. He said whilst there had been a breakdown in trust and confidence, this had been caused by the Respondent’s actions and could be restored with “symbiotic mediation”. The Claimant also argued that his emails to all staff were justified and/or not contrary to the instruction he had been given. Finally, he contended the Respondent had failed to comply with ACAS guidance and had discriminated against him because of whistleblowing or his mental health. Once again, however, the Claimant did not say that the reason he had done the things for which he was dismissed was autism.

[290]The Claimant’s appeal was received shortly before the end of term. A hearing was arranged to take place early in the next term.

[291]Mrs Ryan was appointed to hear the Claimant’s appeal. She was part of a panel with Andreea Wilmot, People Partner. When reading through the paperwork beforehand, Mrs Ryan noted the Claimant’s written representations included him having a disability. This came as a surprise to her, as there was no other reference to him being disabled, nor any medical evidence. She made enquiries of the Respondent’s HR department and was told there was no record of the Claimant having a disability. Mrs Ryan also noted the Claimant's mention of an occupational health report. She asked for a copy of this, but was told it could not be provided because of the Claimant’s objections.

[292]The appeal hearing took place on 14 September 2022. This was a review rather than a rehearing. We are satisfied the Respondent’s minutes are a fair reflection of the discussion which took place. Mrs Ryan began by asking the Claimant about his disability and whether there were any adjustments that he needed during the hearing. The Claimant said he had high functioning autism, but found it difficult to pick up on non-verbal cues and so needed people to be explicit, saying exactly what they meant. Mrs Ryan asked all in attendance to do so. The Claimant was unaccompanied, as he had been previously. He did not want a work colleague or trade union representative. He wanted his solicitor, but this was not allowed under the Respondent’s procedure. The Claimant did not ask for a non-lawyer, personal friend to attend. From the evidence we heard, it is likely that such a request would have been accommodated. Mrs Ryan asked if the Claimant wished to proceed, being on his own. The Claimant said he did. Because the Claimant had made reference to documents not being provided, Mrs Ryan asked whether he would like to postpone the hearing in order for this to be obtained. Once again, the Claimant said he wished to proceed. Mrs Ryan explained that she would not be reviewing the outcomes of all of the Claimant’s individual grievances, rather she would be looking at the Claimant’s grounds of appeal and whether the decision to dismiss was fair and reasonable (i.e. a review/perversity test). There was a discussion about each of the Claimant’s appeal grounds: not having been offered mental health support; management case being sent to him 29 minutes before the hearing; the link being broken; evidence not being provided; breach of the Respondent’s procedure or ACAS code; predetermination; the number of grievances not being an indication of vexatiousness; the breakdown in trust and confidence being caused by the Respondent and not being irretrievable; and public interest/compliance issues with the instruction not to send all staff emails. The Claimant worked from a script he had prepared.

[293]When discussing the breakdown in trust and confidence, Mrs Ryan asked the Claimant what he thought mediation might look like. Their exchange on this included: […] If it were to agree to this now, he believes that the mediation would require himself, an independent mediator, and several main protagonists involved in this event, and he believes the University would first have to be willing to admit its failings and apologise, and steps would need to be taken to address the shortcomings. LR wondered if a mediation would be possible if the University or individuals were unwilling to admit their alleged shortcomings or prepared to make changes. SL responded that the University could admit their errors, but then everyone could draw a line under it all and say ‘let's start over’. However, if they wanted to move forward, there would need to be a much clearer accountability from University for their actions, said SL, because what has been seen is that when there is a complaint against the University it is investigated by a senior manager within the University who has a vested interest in the outcome, given that they are a senior University employee, or by a person within HR who also has a vested interest in finding that they have done nothing wrong. SL said this showed that accountability is required. Therefore, if something similar happens again, he wants to be confident that someone impartial will handle it.

[294]What the Claimant contemplated by way of mediation, is not something that would ordinarily be captured by that word. He sought an admission from the Respondent that he had been right all along. There would seem to have been no scope for compromise, or even agreeing to differ and move on.

[295]Mrs Ryan also asked the Claimant what he would do if a similar situation arose again in the future: LR expressed her empathy for COVID being a scary time for many people. She noted, however, that it may not go away, and so asked SL whether, if theoretically another wave happened like 2020, (say with a different variant), and the University applied the government regulations and the same approach to risk assessments, would he still deem it appropriate to send emails to all staff? SL replied that a variety of factors may mean that Covid is no longer be as dangerous as it once was. He believes that level of concern is now lower so that if there was another Covid wave, that was not as bad as 2020 and, because of the vaccines, the risk is lower and so would not be something to raise as an issue or kick up a fuss over. However, if he felt that University acted in a way that made him and his colleagues unsafe by not implementing appropriate Health and Safety mitigations in this theoretical new Covid wave, or for any other serious H&S concerns, he would raise his concerns, and if those concerns got swept into the long grass as they were last time, then he would do the same thing again.

[296]In his evidence at the Tribunal, the Claimant suggested the breakdown in trust and confidence only occurred as between him and a small number of individuals. We do not agree. The Claimant did not trust any of those involved in the response to Covid – which would comprise the entirety of the Respondent’s senior management – or the People Team.

[297]The minutes of the appeal meeting were sent to the Claimant for approval. His amendments included removing a robust statement Mrs Ryan specifically recalled the Claimant making, namely that he was angry at Mrs Walden and had stopped reading emails from HR. Mrs Ryan thought this may have factored into the Claimant’s knowledge about the disciplinary hearing. Rather than going back and forth on the point, Mrs Ryan kept both sets of minutes, the original which she believed to be accurate and the Claimant’s amended version.

[298]The Claimant’s representations included that he had been punished for blowing the whistle. Following the conclusion of the appeal hearing, Mrs Ryan made enquiries of Ms Kendall, the Respondent’s director of Human Resources, about the manner in which the Claimant's Covid concerns had been addressed. Mrs Ryan satisfied herself that the Respondent had appropriate procedures in place to protect whistleblowers, and there had been no contravention in this case. She also put questions to, Mr Larter, Ms Hopkins, Ms Lambert and Ms Oguzie. One of the matters she took up, was their knowledge of him being autistic. None of them said they knew. The nearest to this, was Ms Lambert, who said: I was aware that his eldest son has autism and had informal conversations where Stuart can see similar traits in himself. I have not seen or received documentation officially stating Stuart has been diagnosed. That may have been provided to a previous line manager or People Team.

[299]Mrs Ryan spoke with Mr Marshall, in particular on the question of predetermination. She was satisfied he had considered everything raised with him before making a decision and there had been no predetermination. When discussing this point, it occurred to Mrs Ryan there were similarities between the way in which the Claimant had presented at the representations hearing and on appeal, in terms of him taking things literally. Asked about possible outcomes to the appeal, Mrs Ryan said she could suggest the original panel revisit its decision or uphold that decision. The Claimant responded saying she was being just like Ian. Mrs Ryan understood that to mean that she had already decided to uphold his dismissal. It appears to us, this is not merely a matter of taking things literally, it also involves taking them out of context. The Claimant was told of more than one possibility. He then seized on and reacts to one, ignoring the alternatives and context, namely being told, expressly, there is more than one possible outcome.

[300]Mrs Ryan also made enquiries about the Respondent's attempts to obtain an occupational health report and the timeline with respect to notification of the disciplinary hearing and documents for the management case.

[301]The further enquiries made by Mrs Ryan led to a delay in the appeal outcome. Whilst the appeal was conducted by way of a review rather than rehearing, it is clear that Mrs Ryan adopted an exceedingly thorough approach.

[302]By letter of 13 November 2022, the Claimant was advised that his appeal was not upheld. A detailed rationale over 9 pages was set out.

[303]The Claimant did attempt to correspond with Mrs Ryan in this regard, but she declined to discuss the matter further, the Claimant’s rights under the Respondent’s procedures having been exhausted. Law Unfair Dismissal

Law

[304]Pursuant to section 98(1)(a) of the Employment Rights Act 1996 ( “ERA”), it is for the respondent to show that the reason for the claimant’s dismissal was potentially fair and fell within section 98(1)(b).

[305]If the reason for dismissal falls within section 98(1)(b), neither party has the burden of proving fairness or unfairness within section 98(4) of ERA, which In any case where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair having regard to the reason shown by the employer -(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[306]Where the reason for dismissal is conduct the employment tribunal will take into account the guidance of the EAT in BHS v Burchell

[1978] IRLR 379

. The employment tribunal must be satisfied306.1 that the respondent had a genuine belief that the claimant was guilty of the misconduct;

306.2 that such belief was based on reasonable grounds;

306.3 that such belief was reached after a reasonable investigation.

[307]The employment tribunal must also be satisfied that the misconduct was sufficient to justify dismissing the claimant.

[308]The function of the employment tribunal is to review the reasonableness of the employer’s decision and not to substitute its own view. The question for the employment tribunal is whether the decision to dismiss fell within the band of reasonable responses, which is to say that a reasonable employer may have considered it sufficient to justify dismissal; see Iceland Frozen Foods v Jones

[1983] IRLR 439

EAT.

[309]The band of reasonable responses test applies as much to the Burchell criteria as it does to whether the misconduct was sufficiently serious to justify dismissal; see Sainsbury’s Supermarkets v Hitt

[2003] IRLR 23

CA.

[310]Where an appeal hearing is conducted then the Burchell criteria must also be applied at that stage, in accordance with the decision of the House of Lords in West Midlands Co-operative Society v Tipton

[1986] IRLR 112

and the speech of Lord Bridge: “A dismissal is unfair if the employer unreasonably treats his real reason as a sufficient reason to dismiss the employee, either when he makes his original decision to dismiss or when he maintains that decision at the conclusion of an internal appeal.”

[311]After an appeal, the question is whether the process as a whole was fair ; see Taylor v OCS Group Limited

[2006] IRLR 613

CA, per Smith LJ:46. […] In our view, it would be quite inappropriate for an ET to attempt such categorisation. What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair.

47. […] The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that ETs will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ETs realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.

[312]A dismissal for some other substantial reason (SOSR”) may also be fair within ERA section 98(1)(b); see Perkins v St George’s Healthcare NHS Trust

[2005] IRLR 934

CA, per Wall LJ: 59. That said, I agree with Mr Langstaff that personality, of itself, cannot be a ground for dismissal within ERA 1996 s.98. For there to be a potentially fair reason for dismissal, an employee's personality must, it seems to me, manifest itself in such a way as to bring the actions of the employee, one way or another, within the section. Whether, on the facts of a particular case, the manifestations of an individual's personality result in conduct which can fairly give rise to the employee's dismissal; or whether they give rise to SOSR of a kind such as to justify the dismissal of an employee holding the position which the employee held, the employer has to establish the facts which justify the reason or principal reason for the dismissal. Provided the employer can do so, s.98(4) then kicks in. So much is, I think, obvious. 60. I did not understand Mr Langstaff to argue that in a given case a breakdown in confidence between an employer and one of its senior executives;(a) for which the latter was responsible; and

(b) which actually or potentially damaged the operations of the employer's organisation (or which rendered it impossible for the senior executives to work together as a team) was outwith s.98 as SOSR and therefore could not result in an employer fairly dismissing the employee whom the employer deemed responsible for that state of affairs. Indeed, I think Mr Langstaff was minded to accept that the facts found by the tribunal could have amounted to SOSR. In my judgment, that concession was both correct, and realistic. Standing outside the case for a moment, it seems to me that it must be possible for an employer fairly to dismiss an employee in the circumstances set out in the earlier part of this paragraph, provided always the terms of s.98(4) are satisfied.

[313]See further Ezsias v North Glamorgan NHS Trust

[2011] IRLR 550

EAT, where the employee was fairly dismissed following a breakdown in working relationships and notwithstanding the Trust’s failure to follow a contractual disciplinary procedure: 53.It is apparent from that passage that the tribunal was alive to the refined but important distinction between dismissing Mr Ezsias for his conduct in causing the breakdown of relationships, and dismissing him for the fact that those relationships had broken down. In these circumstances, the only fair reading of the tribunal’s finding at paragraph 542 about the reason for Mr Ezsias’ dismissal is that although as a matter of history it was Mr Ezsias’ conduct which had in the main been responsible for the breakdown of the relationships, it was the fact of the breakdown which was the reason for his dismissal (his responsibility for that being incidental). […] 58. We understand that concern, but the fact is that the Whitley Council terms only apply when it is the employee's conduct or competence which is the real reason for why the action was taken against him. Although as a matter of history Mr Ezsias' conduct was blamed for the breakdown, the tribunal's finding in the present case was that his contribution to that breakdown was not the reason for his dismissal. We do not suppose that those who were responsible for negotiating the Whitley Council terms had this in mind, but the fact is that the Whitley Council terms do not apply to cases where, even though the employee's conduct caused the breakdown of their relationship, the employee's role in the events which led up to that breakdown was not the reason why action was taken against him. We have no reason to think that employment tribunals will not be on the lookout, in cases of this kind, to see whether an employer is using the rubric of 'some other substantial reason' as a pretext to conceal the real reason for the employee's dismissal.

[314]There are also reasons for dismissal that are automatically unfair. Dismissal for having made a protected disclosure is one such reason. ERA section 103A An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[315]In addressing the question of causation – whether the sole or principal reason for dismissal was a protected disclosure – a distinction may fall to be drawn between the making of a disclosure on the one hand, and the manner in which that disclosure is made or conduct ancillary to that on the other. In Bolton School v Evans

[2006] IRLR 500

CA the claimant teacher was dismissed not for disclosing his concern about the security of the school’s IT systems, but rather the manner in which he sought to ventilate those concerns, namely by arranging for the system to be hacked into as a demonstration of its vulnerability; per Buxton LJ:

[316]Such a distinction was further explored in Panayiotou v Chief Constable of Hampshire Police

[2014] IRLR 500

EAT, per Lewis J:49. First, as a matter of statutory construction, s.47B of ERA does not prohibit the drawing of a distinction between the making of protected disclosures and the manner or way in which an employee goes about the process of dealing with protected disclosures. A protected disclosure is 'any disclosure of information' which in the reasonable belief of the employee tends to show the existence of one of the state of affairs specified in s.43B(1) of ERA, eg that a criminal offence has been or is being committed or that a person is failing or is likely to fail to comply with a legal obligation or that a miscarriage of justice has occurred, is occurring or is likely to occur. There is, in principle, a distinction between the disclosure of information and the manner or way in which the information is disclosed. An example would be the disclosing of information by using racist or otherwise abusive language. Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. An employer may be able to say that the fact that the employee disclosed particular information played no part in a decision to subject the employee to the detriment but the offensive or abusive way in which the employee conveyed the information was considered to be unacceptable. Similarly, it is also possible, depending on the circumstances for a distinction to be drawn between the disclosure of the information and the steps taken by the employee in relation to the information disclosed.

50. Secondly, that distinction accords with the existing case law which recognises that a factor which is related to the disclosure may be separable from the actual act of disclosing the information itself. In Bolton School v Evans

[2007] IRLR 140

, the Court of Appeal recognised a distinction between disclosing information - in that case, that the school's computer system was not secure - and the fact that the employee hacked into the computer system in order to demonstrate that the system was not secure. Disciplining the employee on the ground that he had engaged in unauthorised misconduct by hacking into the computer system did not involve subjecting the employee to a detriment on the grounds that he had made a protected disclosure. The conduct, although related to the disclosure, was separable from it. The Court of Appeal noted, however, that a 'tribunal should look with care at arguments that say that the dismissal was because of acts related to the disclosure rather than because of the disclosure itself' (see the comments of Buxton LJ at

[2007] IRLR 140

at paragraph 18). […] 52. Those authorities demonstrate that, in certain circumstances, it will be permissible to separate out factors or consequences following from the making of a protected disclosure from the making of the protected disclosure itself. The employment tribunal will, however, need to ensure that the factors relied upon are genuinely separable from the fact of making the protected disclosure and are in fact the reasons why the employer acted as it did.

[317]Dismissal for certain reasons connected with health and safety will also be automatically unfair. So far as material ERA Section 100 provides: (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— […] (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or […] Protected Disclosure

[318]The making of a protected disclosure involves three elements. Firstly, there must be a “disclosure”. According to ERA section 43B(1) a disclosure is constituted by “any disclosure of information”.

[319]Secondly, the disclosure must be “qualifying” which is determined by the content of the information disclosed. Section 43B(1), as recently amended, and so far as material provides: (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following—[…] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[320]Thirdly, the qualifying disclosure must be made to a specified recipient, within ERA sections 43C-H, which includes at 43C, the employer.

[321]In some circumstances, disclosing information for these purposes might be distinguished from the making of an allegation; see Cavendish Munro Professional Risks Management Limited v Geduld

[2010] IRLR 38

EAT, per Slade J:23. It can be seen that the victimisation provisions of the discrimination legislation set out different ways in which an individual can assert victimisation. Giving 'information' and making 'an allegation' are treated differently in that legislation as well as in the Employment Rights Act.

24. Further, the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information.

25. In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee's position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee's position. In our judgment, that situation would not fall within the scope of the Employment Rights Act s.43.

[322]Caution in this regard must, however, be exercised. A single disclosure might amount to both the provision of information and the making of an allegation. Furthermore, a rigid dichotomy between giving information and making allegation is not reflected in the language of ERA section 43B. The statutory question is whether information was disclosed (which in the employee’s reasonable belief tended to show one of the necessary matters); see Kilraine v London Borough of Wandsworth

[2018] IRLR 846

CA, per Sales LJ:34. However, with the benefit of hindsight, I think that it can be said that para [24] in Cavendish Munro was expressed in a way which has given rise to confusion. The decision of the ET in the present case illustrates this, because the ET seems to have thought that Cavendish Munro supported the proposition that a statement was either 'information' (and hence within s 43B(1)) or 'an allegation' (and hence outside that provision). It accordingly went wrong in law, and Langstaff J in his judgment had to correct this error. The judgment in Cavendish Munro also tends to lead to such confusion by speaking in [20]–[26] about 'information' and 'an allegation' as abstract concepts, without tying its decision more closely to the language used in s 43B(1).

35. The question in each case in relation to s 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a 'disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]'. Grammatically, the word 'information' has to be read with the qualifying phrase, 'which tends to show [etc]' (as, for example, in the present case, information which tends to show 'that a person has failed or is likely to fail to comply with any legal obligation to which he is subject'). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in sub-s (1). The statements in the solicitors' letter in Cavendish Munro did not meet that standard.

36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in s 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.

[323]Whilst a belief need not necessarily be correct in order reasonably to be held, see Babula v Waltham Forrest College

[2007] IRLR 346

CA, the test is ultimately an objective one; per Wall LJ: 75. […] a belief may be reasonably held and yet be wrong. I am reminded, in a different context, of the well-known speech of Lord Hailsham of St Marylebone LC in the adoption case of Re W (an infant)

[1971] AC 682

at 700D when discussing whether or not a parent could be said to be unreasonable in withholding consent to adoption. He said: – 'Two reasonable parents can perfectly reasonably come to opposite conclusions without either of them forfeiting their title to be regarded as reasonable.' In my judgment, the position is the same if a whistleblower reasonably believes that a criminal offence has been committed, is being committed or is likely to be committed. Provided his belief (which is inevitably subjective) is held by the tribunal to be objectively reasonable, neither(1) the fact that the belief turns out to be wrong – nor,

(2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistle blower of the protection afforded by the statute. […] 77. […] the word 'likely' in s.43B(1)(b) does not affect my conclusion that what the whistleblower must show is a 'reasonable belief' that the disclosure tends to show that a criminal offence is likely to be committed, or that a person is likely to fail to comply with any legal obligation. In other words, what remains relevant is the whistleblower's reasonable belief, and not whether or not it turns out to be wrong. The use in the statute of the word 'likely' does not, in my judgment, import an implication that the whistleblower must be right, or that, objectively, the facts must disclose a likely criminal offence or an identified legal obligation. […] 79. It is also, I think, significant that s.43B(1) uses the phrase 'tends to show' not 'shows'. There is, in short, nothing in s.43B(1) which requires the whistleblower to be right. At its highest in relation to s.43B(1)(a) he must have a reasonable belief that the information in his possession 'tends to show' that a criminal offence has been committed: at its lowest he must have a reasonable belief that the information in his possession tends to show that a criminal offence is likely to be committed. The fact that he may be wrong is not relevant, provided his belief is reasonable, and the disclosure to his employer made in good faith (s.43C(1)(a)). 80.[…] The purpose of the statute, as I read it, is to encourage responsible whistleblowing. To expect employees on the factory floor or in shops and offices to have a detailed knowledge of the criminal law sufficient to enable them to determine whether or not particular facts which they reasonably believe to be true are capable, as a matter of law, of constituting a particular criminal offence seems to me both unrealistic and to work against the policy of the statute.

[324]In Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, the EAT addressed the extent to which the reasonableness of a belief may be informed by the circumstances of the person blowing the whistle. HHJ McMullen QC explained the point in the following way:61. There seems to be no dispute in this case that the material for the purposes of s.43B(1)(a)–(e) would as a matter of content satisfy the section. In our view it is a fairly low threshold. The words 'tend to show' and the absence of a requirement as to naming the person against whom a matter is alleged put it in a more general context. What is required is a belief. Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold. No doubt because of that Parliament inserted a filter which is the word 'reasonable'.

62. This filter appears in many areas of the law. It requires consideration of the personal circumstances facing the relevant person at the time. Bringing it into our own case, it requires consideration of what a staff grade O&G doctor knows and ought to know about the circumstances of the matters disclosed. To take a simple example: a healthy young man who is taken into hospital for an orthopaedic athletic injury should not die on the operating table. A whistleblower who says that that tends to show a breach of duty is required to demonstrate that such belief is reasonable. On the other hand, a surgeon who knows the risk of such procedure and possibly the results of meta-analysis of such procedure is in a good position to evaluate whether there has been such a breach. While it might be reasonable for our lay observer to believe that such death from a simple procedure was the product of a breach of duty, an experienced surgeon might take an entirely different view of what was reasonable given what further information he or she knows about what happened at the table. So in our judgment what is reasonable in s.43B involves of course an objective standard – that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistleblowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their 'reasonable' belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.

[325]Accordingly, the insider, who will be expected to be in a proper position to make a proportionate judgment about any potential wrong-doing, may need to go further in establishing the reasonableness of their belief than the uninformed outsider

[326]In Chesterton Global Limited v Nurmohamed

[2017] IRLR 837

CA, the Court addressed the correct approach to the public interest, per Underhill LJ: 37. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under s.43B(1) where the interest in question is personal in character 5), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade's example of doctors' hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie's fourfold classification of relevant factors which I have reproduced at paragraph 34 above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.

[327]The potentially relevant factors referred to were:(a) the numbers in the group whose interests the disclosure served;

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

(c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

(d) the identity of the alleged wrongdoer […] the larger or more prominent the wrongdoer (in terms of the size of its relevant community, ie staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest […]

[328]An ulterior motive will not avoid the making of a protected disclosure, where the Clamant had a belief that this was in the public interest at the time; see Chesterton, per Underhill LJ:29. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.

30. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para 17 above, the new sections 49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation — the phrase “ in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it. Protected disclosure detriment

[329]In addition to unfair dismissal protection, workers are entitled not to be subject to a detriment for having made a protected disclosure. ERA section 47B(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[330]There is a different causation test in detriment claims. Whereas for the purposes of an automatic unfair dismissal claim the Tribunal must be satisfied the reason or principal reason for dismissal was an inadmissible one, the test for causation in whistleblowing detriment cases is whether the protected disclosure materially influenced, in the sense of being more than a trivial influence, the employer's treatment of the whistleblower; see Fecitt v NHS Manchester

[2012] IRLR 64

[331]As to the meaning of detriment, the question is not an entirely subjective one; see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL, per Lord Hope:34. […]The word ‘detriment’ draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association

[1986] IRLR 103

, 107, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.

35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah

[1979] IRLR 436

, 440, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to ‘detriment’[…] Health & Safety

[332]ERA section 44(1A)(a) provides: (1A) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that— (a) in circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work, or […]

[333]Per Rodgers v Leeds Laser Cutting Ltd

[2023] ICR 356

CA, the questions which arise in a case under subsection (1A)(a) are:333.1 did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:

333.2 was that belief reasonable? If so:

333.3 could they reasonably have averted that danger? If not:

333.4 did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? Disabled Person

[334]Section 6(1) of the Equality Act 2010 (“EqA”) provides: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[335]Guidance on the correct approach to determining whether a person is disabled within the meaning of EqA was provided by the EAT in Goodwin v Patent Office

[1999] ICR 302

, per Morrison P: […] The words of the section require a tribunal to look at the evidence by reference to four different conditions.(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?

(2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities […] and does it have an adverse effect?

(3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial?

(4) The long-term condition. Is the adverse effect (upon the applicant's ability) long-term?

[336]In relation to “impairment” the question for the Employment Tribunal is a functional one, what the Claimant cannot do practically. It is unnecessary to consider the cause of such limitation; see MOD v Hay

[2008] IRLR 928

EAT.

[337]Guidance on the correct approach to identifying a mental impairment was provided by the EAT in J v DLA Piper

[2010] IRLR 936

, per Underhill P: 40. Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin v Patent Office

[1999] ICR 302

(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.[…] 41. The facts of the present case make it necessary to make two general points about depression as an impairment. […] 42. The first point concerns the legitimacy in principle of the kind of distinction […] between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness—or, if you prefer, a mental condition—which is conveniently referred to as “clinical depression” and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or—if the jargon may be forgiven—“adverse life events”. We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians […] and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering “clinical depression” rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.

[338]“Substantial” is defined at EqA section 212(1) as “more than minor or trivial”. In this context a substantial adverse effect means a limitation going beyond the normal differences in ability which may exist amongst people; see the Guidance paragraphs B1. Relevant factors may include:338.1 the time taken to carry out an activity (B2);

338.2 the way an activity is carried out (B3);

338.3 cumulative effect of multiple impairments (B4-B6);

338.4 effect of reasonably modifying behaviour (B7-B10);

338.5 effect of environment (B11);

338.6 disregarding the effect of treatment (B12-B17);

338.7 whether there is a progressive condition (B18-B23);

338.8 severe disfigurement.

[339]In determining whether a person satisfies the definition of disability the Employment Tribunal must focus on what the person cannot do or can only do with difficulty, as opposed to what they can; see Leonard v Southern Derbyshire Chamber of Commerce

[2001] IRLR 19

EAT.

[340]Normal day to day activities can include work activities where they are found across a range of employment situations; see Chief Constable of Dumfries & Galloway v Adams

[2009] IRLR 613

EAT.

[341]The definition at section 6 is supplemented by Schedule 1 to EqA, which includes: Long-term effects 2(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[342]In this context the word “likely” means could well happen; see SCA Packaging v Boyle

[2009] IRLR 746

HL.

[343]The question of disability must be determined as at the date of the alleged discriminatory act, as opposed to the date of hearing; see Cruickshank v VAW Motorcast

[2002] IRLR 24

EAT and Richmond Adult Community College v McDougall

[2008] IRLR 227

CA. Discrimination in employment

[344]In the employment field and so far as material, EqA section 39 provides: (2) An employer(a) (A) must not discriminate against an employee of A's

(b) (B) - (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment. Burden of Proof

[345]The burden of proof in EqA claims is set out at section 136, which so far as material provides: (2) If there are facts from which the court 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 occurred.

[346]When considering whether the claimant has satisfied the initial burden of proving facts from which a Tribunal might find discrimination, the Tribunal must consider the entirety of the evidence, whether adduced by the claimant or respondent; see Laing v Manchester City Council

[2006] IRLR 748

EAT.

[347]Furthermore, a simple difference in treatment as between the claimant and his comparators and a difference in protected characteristic will not suffice to shift the burden; see Madarassy v Nomura

[2007] IRLR 246

CA.

[348]The burden of proof provisions will add little in a case where the ET can make clear findings of a fact as to why an act or omission was done or not; see Martin v Devonshires Solicitors

[2011] IRLR 352

EAT, per Underhill P: 39. This submission betrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination generally, that is, facts about the respondent’s motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else’s head “the devil himself knoweth not the mind of man” (per Brian CJ, YB 17 Ed IV f.1, pl. 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law […] Discrimination Arising

[349]Insofar as material, EqA section 15 provides:(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[350]Any treatment that would amount to a detriment per Shamoon, is also likely to be unfavourable for the purposes of a claim under EqA section 15. Where, however, a disabled person receives a benefit that which only accrued because of their status, unfavourable treatment will not be established on the basis that the benefit is insufficiently favourable; see Trustees of Swansea University Pension and Assurance Scheme v Williams

2019 ICR 230

SC, per Lord Carnwath:27. Since I am substantially in agreement with the reasoning of the Court of Appeal, I can express my conclusions shortly, without I hope disrespect to Ms Crasnow's carefully developed submissions. I agree with her that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word “unfavourably” in section 15 and analogous concepts such as “disadvantage” or “detriment” found in other provisions, nor between an objective and a “subjective/objective” approach. While the passages in the Code of Practice to which she draws attention cannot replace the statutory words, they do in my view provide helpful advice as to the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section. It is unnecessary to refer to more remote sources such as the United Nations Conventions. Nor do I find it useful to speculate about the application of the section or the Code in hypothetical cases which are not before the court.

28. On the other hand, I do not think that the passages in the Code do anything to overcome the central objection to Mr Williams's case as now formulated, which can be shortly stated. It is necessary first to identify the relevant “treatment” to which the section is to be applied. In this case it was the award of a pension. There was nothing intrinsically “unfavourable” or disadvantageous about that. By contrast in Malcolm

[2008] AC 1399

, as Bean LJ pointed out

[2018] ICR 233

, para 42, there was no doubt as to the nature of the disadvantage suffered by the claimant. No one would dispute that eviction is “unfavourable”. Ms Crasnow's formulation, to my mind, depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” (in Langstaff J's words). It is enough that it was not in any sense “unfavourable”, nor (applying the approach of the Code) could it reasonably have been so regarded

[351]The causal connection between treatment and disability was considered in Pnaiser v NHS England, Coventry City Council

[2016] IRLR 170

, per Simler J: 31. In the course of submissions I was referred by counsel to a number of authorities including IPC Media Ltd v Millar

[2013] IRLR 707

, Basildon & Thurrock NHS Foundation Trust v Weerasinghe

UKEAT/0397/14/RN

and Hall v Chief Constable of West Yorkshire Police

[2015] IRLR 893

, as indicating the proper approach to determining section15 claims. There was substantial common ground between the parties. From these authorities, the proper approach can be summarised as follows:(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 section15 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, contrary to Miss Jeram’s submission (for example at paragraph 17 of her Skeleton).

(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 section 15 of the Act (described comprehensively by Elisabeth Laing J in Hall ), the statutory purpose which appears from the wording of section 15 , namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.

(e) For example, in Land Registry v Houghton

UKEAT/0149/14

a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The Tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.

(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.

(g) Miss Jeram argued that “a subjective approach infects the whole of section 15 ” by virtue of the requirement of knowledge in section 15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26 to 34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages — the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability.

(h) Moreover, the statutory language of section 15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of section 15 would be substantially restricted on Miss Jeram’s construction, and there would be little or no difference between a direct disability discrimination claim under section 13 and a discrimination arising from disability claim under section 15 .

(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.

[352]Justification involves two stages: firstly, the identification of a legitimate aim and then secondly, a consideration of whether proportionate means were adopted in its pursuit.

[353]Proportionality requires, a balance between the discriminatory effect of the treatment on the claimant on the one hand, as against the reasonable needs of the business on the other. Relevant to striking that balance will be a consideration of:353.1 the nature and extent of the discriminatory impact upon the claimant;

353.2 the more serious the impact, the more cogent must be the justification;

353.3 whether the employer’s aim could have been achieved less discriminatory means.

[354]EqA section 15(1) does not apply if the Respondent did not know the Claimant was a disabled person and could not reasonably have been expected to. Reasonable Adjustments

[355]EqA sections 20 and 21 provide, so far as material: 20 Duty to make adjustments […] (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

[356]A person is not subject to the duty to make reasonable adjustments if they neither knew nor could have been reasonably expected to know of the claimant’s disability and / or pursuant to EqA schedule 8, paragraph 20(1)(b) that they were likely to be placed at a disadvantage by the relevant provision, criterion or practice (“PCP”): 20 Lack of knowledge of disability, etc. (1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— […] (b) in any case referred to in Part 2 of this Schedule 1, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

[357]The Equality and Human Rights Commission (“EHRC”) EqA Code of Practice identifies factors which may be relevant to the reasonableness of a proposed step: 6.28 The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take:• whether taking any particular steps would be effective in preventing the substantial disadvantage;

• the practicability of the step;

• the financial and other costs of making the adjustment and the extent of any disruption caused;

• the extent of the employer’s financial or other resources;

• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and

• the type and size of the employer.

[358]Pursuant to the decision in Secretary of State for Work and Pensions v Wilson [2009]

UKEAT/0289/09

the Employment Tribunal must have regard to:358.1 the extent to which it would be practicable for the employer to take the steps proposed;

358.2 the feasibility of the steps proposed.

[359]When considering the reasonableness of an adjustment the practical effect, objectively assessed is key; see Royal Bank of Scotland v Ashton

[2011] ICR 632

EAT, per Langstaff J: 24 Thus, so far as reasonable adjustment is concerned, the focus of the tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons.

[360]A claimant does not, however, need to go so far as to show a ‘good’ or ‘real’ prospect, it is sufficient if there is ‘a’ prospect the disadvantage will be removed or reduced; See Leeds Teaching Hospital NHS Trust v Foster [2011]

UKEAT/0552/10/JOJ

, per Keith J: [17] In fact, there was no need for the tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008. It would have been sufficient for the tribunal to find that there would have been just a prospect of that. That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (

UKEAT/0079/08/JOJ

) at 50. That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (

UKEAT/0069/07/DA

) at 39. The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee's disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one. When those propositions were put to Mr Boyd, he did not disagree with them. Harassment

[361]Insofar as material, EqA section 26 provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, 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; (c)whether it is reasonable for the conduct to have that effect.

[362]Whilst the unwanted conduct need not be done “on the grounds of” or “because of”, in the sense of being causally linked to, a protected characteristic in order to amount to harassment, the need for that conduct be “related to” the protected characteristic does require a “connection or association” with that; see Regina (Equal Opportunities Commission) v Secretary of State for Trade and Industry

[2007] ICR 1234

QBD. Notwithstanding it was decided under the prior legislation including the formulation “on the grounds of”, the observations made by the EAT in Nazir v Asim

[2010] ICR 1225

may still be of some relevance: 69 We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law—such as a person’s race and gender.

[363]The EAT further considered the relevant causal test in Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester:

UKEAT/0176/17/RN

; per Slade J: 31. […] Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, “related to” such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. […] “the mental processes” of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the Claimant […] However such evidence from the alleged perpetrator is not essential to the determination of the issue. A tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place.

[364]In relation to the proscribed effect, although the Claimant’s perception must be taken into account, the test is not a subjective one satisfied merely because the Claimant thinks it is. The Tribunal must reach a conclusion that the found conduct reasonably brought about the effect; see Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

EAT.

[365]Guidance on the threshold for conduct satisfying the statutory definition was given by the EAT in Betsi Cadwaladr University Health Board v Hughes [2014] 2 WLUK 991; per Langstaff P:10. Next, it was pointed out by Elias LJ in the case of Grant v HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”

11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially 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.”

12. We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. Victimisation

[366]So far as material, EqA section 27 provides: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. Part-time Workers

[367]Protection for part-time workers is provided by regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000: Less favourable treatment of part-time workers 5(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker—(a) as regards the terms of his contract; or

(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. (2) The right conferred by paragraph (1) applies only if— (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds. (3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. (4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime. Limitation

[368]In the ordinary course, a claim under ERA or EqA must be presented within three months. That time period is extended by the operation of the ACAS EC scheme:368.1 the period from the day after Day A (when the claimant contacted ACAS) and Day B (when the certificate was sent) is not counted;

368.2 if the time limit would otherwise expire in the period of one month following issue of the EC certificate, it is extended the end of that period.

[369]Where a claim is presented outwith the primary limitation period, the Tribunal may have a discretion to extend time under the respective statutory regimes. ERA

[370]Where a claim is presented outwith the primary limitation period, the Tribunal has a discretion to extend time under ERA, where:370.1 it was not reasonably practicable for the claimant to have presented the claim within the 3-month period;

370.2 the claims was presented within a further reasonable period.

[371]The onus is upon a claimant to prove that is was not “reasonably practicable” for a claim to have presented within the specified time period. This represents a high hurdle to a late claim; see Saunders v Southend on Sea Borough Council

[1984] IRLR 119

CA, May LJ giving the judgement of the Court said: 22. In the end, most of the decided cases have been decisions on their own particular facts and must be regarded as such. However we think that one can say that to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done – different, for instance, from its construction in the context of the legislation relating to factories: compare Marshal v Gotham

(1954) AC 360

. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word 'practicable' as the equivalent of 'feasible' as Sir John Brightman did in Singh's case and to ask colloquially and untrammelled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?' – is the best approach to the correct application of the relevant subsection.

[372]A claimant will not establish that it was not reasonably practicable to bring a claim before an Employment Tribunal simply by relying upon ignorance of the right to bring such a claim, or the time in which that might be done, rather the reasonableness of such ignorance will need to be established. In Walls Meat Company Limited v Khan

[1978] IRLR 499

CA, Lord Denning MR said: 15. I would venture to take the simple test given by the majority in Dedman's

[1973] IRLR 379

case. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights — or ignorance of the time limit — is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences. […]

[373]With the passage of time the existence of Employment Tribunals and the right to bring claims of unfair dismissal and discrimination have become well known. As such, prospective claimants will in most cases struggle to persuade an Employment Tribunal that they were unaware of the right to bring a claim, and those who aware of such rights will, therefore, be on notice of the need to take advice as to how and when such a claim may be made; see Trevelyans (Birmingham) Limited v Norton

[1991] ICR 488

EAT: From the cases, it is our view that the following general principles seem to emerge. The first, as time passes, so it is likely to he much more difficult for applicants to persuade a tribunal that they had no knowledge of their rights in front of industrial tribunals to bring proceedings for unfair dismissal […] Second, that where an applicant has knowledge of his rights to claim unfair dismissal […] then there is an obligation upon him to seek information or advice about the enforcement of those rights. EqA

[374]Where a claim is presented outwith the primary limitation period, the Tribunal has a discretion to extend time, where it is just and equitable to do so.

[375]Separately, where a series of discriminatory acts are found by the Tribunal to constitute a single continuing act of discrimination, the claim will be in time where the last part of the act was within the 3-month period.

[376]So far as material section 123 of the Equality Act 2010 (“EqA”) provides: (1) Subject to sections 140A and 104B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. […] (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) 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.

[377]An Employment Tribunal applying section 123 has a broad discretion. A useful summary of the case law and multifactorial approach was given by the EAT in Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] ICR 283

per HHJ Peter Clark: 11. A useful starting point is the judgment of Smith J in British Coal Corpn v Keeble

[1997] IRLR 336

. That was a case concerned with the just and equitable extension of time question in the context of a sex discrimination claim. Smith J, sitting with members, in allowing the employers' appeal and remitting the just and equitable extension question to the employment tribunal, suggested that in exercising its discretion the tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980, the provision for extension of time in personal injury cases. The first of those factors, as Mr Peacock emphasised in the present appeal, is the length of and reasons for the delay in bringing that claim.12. However, as the Court of Appeal made clear in Southwark London Borough Council v Afolabi

[2003] ICR 800

, in deciding the just and equitable extension question, a tribunal is not required to go through the matters listed in section 33(3) of the Limitation Act 1980, provided that no significant factor is omitted. That principle was more recently reinforced in a different context by the Court of Appeal in Neary v Governing Body of St Albans Girls' School

[2010] ICR 473

, where the leading judgment was given by Smith LJ. There, it was held that a line of appeal tribunal authority requiring a tribunal to consider the factors in the CPR, rule 3.9(1), as it then was, when deciding whether or not to grant relief from sanction following non-compliance with an unless order, was incorrect. Following Afolabi it is sufficient that all relevant factors are considered.

13. Section 33(3) of the 1980 Act does not in terms refer to the balance of prejudice between the parties in granting or refusing an extension of time. However, Smith J referred to the balance of prejudice in Keeble, para 8, to which Mr Peacock has referred me. That, it seems to me, is consistent with the approach of the Court of Appeal in the section 33 personal injury case of Dale v British Coal Corpn, where Stuart-Smith LJ opined that, although not mentioned in section 33(3), it is relevant to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. That passage neatly brings together the two factors which, Mr Dutton submits, were not, but ought to have been, considered by this tribunal in the proper exercise of its discretion: prejudice and merits. I shall return to those factors in due course.

14. What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd

[1977] ICR 279

) involves a multi-factoral approach. No single factor is determinative.

15. Returning to the balance of prejudice, this concept arises elsewhere in our jurisdiction. For example, in deciding applications to amend the form ET1, the Selkent principle: Selkent Bus Co Ltd v Moore

[1996] ICR 836

claim.

[378]Importantly, there is no presumption that time will be extended; see Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 343

CA, per Auld LJ: 25. It is also of importance to note that the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule. […]

[379]The Court of Appeal considered the exercise of this discretion again in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

, per Leggatt LJ: 18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble

[1997] IRLR 336

), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi

[2003] EWCA Civ 15

;

[2003] ICR 800

, para 33. […] 19. That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Continuing Act

[380]The question of what amounts to a “continuing act” was considered by the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis

[2003] IRLR 96

, per Mummery LJ: 52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of 'an act extending over a period'. [...] Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed. Conclusion Unfair Dismissal Reason

Conclusion

[381]The Respondent’s letter of 30 June 2022, read together with the earlier panel letter of 31 March 2022, which Mr Marshall agreed with, accurately reflect the reasons for the Claimant’s dismissal. Mr Marshall had a genuine belief the Claimant was guilty of gross misconduct, namely that the Claimant had submitted multiple, increasingly personal, repetitive grievances, intending to vex the Respondent and sent all staff emails ignoring a clear management instruction to desist, which the Claimant had understood but chosen not to follow. This was the principal reason for dismissal and would amount to conduct, within ERA section 98(2)(b), a potentially fair reason for dismissal. Whilst not treated as an act of misconduct, Mr Marshall also believed there had been an irreparable breakdown in trust and confidence.

[382]The reason or principal reason for dismissal was not that the Claimant had made a protected disclosure within ERA section 103A.

[383]The disclosure by the Claimant of the information contained in his various complaints, to the effect that the Respondent had failed to comply with legal obligations, endangered health and safety, or deliberately concealed the same, played no part in the decision to dismiss him. The Claimant was not dismissed for raising his concerns, rather it was the manner in which he, as the Respondent found, misused the grievance procedure. Save for finding that the OH report should have been sent to the Claimant at the same time as the Respondent, none of his grievances were upheld. The Claimant was found to have submitted multiple, repetitive grievances, making increasingly personal unjustified attacks on individuals, going back into historic matters in order to find further things to complain about, so as to vex his employer. Whilst we are mindful of the need for caution before accepting an argument of the sort made by the employer in this case, we are satisfied the conduct relied upon here is genuinely separable from the information in the Claimant’s grievances, which he relies upon as amounting to protected disclosures. We are satisfied, the same is true of the Claimant’s refusal to follow Mr Farmer’s instruction to desist from sending emails to all staff. The Claimant was entitled to raise his concerns. The Respondent was entitled to require him to do so in a proper way, with managers or other relevant officers. The Claimant could not insist on conducting a heated public conversation with the entire staff body by way of the Respondent’s internal email system, in the face of an instruction not to. Quite obviously, the Claimant’s failure to follow that instruction is genuinely separable from the information contained within his emails. As for the Claimant's assertion that the information in the other communications he relies upon as amounting to protected disclosures (i.e. not his grievances or all staff emails) were the reason for his dismissal, the evidence does not support any connection in that regard.

[384]The loss of trust and confidence was demonstrated by the terms in which the Claimant wrote about and to so many of his colleagues and managers. This was also shown by the Claimant’s repeated declarations to that effect. Once again, this is genuinely separable from any of the information he relies upon as amounting to a protected disclosure.

[385]The protection for whistleblowers, allows for concerns to be raised by employees about matters such as legal compliance, Covid safety and concealment. It does not, however, give them license to berate and harry their employers repetitively, seeking to force them to do as the employee demands.

[386]It follows, therefore, even if the information relied upon by the Claimant, or any of it, did amount to him making one or more protected disclosures, he was not dismissed for the sole or principal reason of having made the same.

[387]Nor was the reason or principal reason for dismissal that the Claimant had left the workplace or refused to return within ERA section 100(1)(d). Whilst the Claimant was no longer working on site in Coventry by the time of the disciplinary, that factor played no part whatsoever in the decision to dismiss. It follows, therefore, even if the Claimant had adopted this stance in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, the reason for his dismissal does not fall within this statutory provision. Grounds

[388]We are satisfied the Respondent had reasonable grounds for its belief.

[389]The Claimant raised a large number of grievances within a relatively short period of time. Save for part of the first grievance, relating to the occupational health report being sent to the Respondent, none of his grievances were found to have merit. The Claimant continued to contest these matters and was never satisfied by the outcome provided. There was a considerable degree of overlap between various grievances. The Claimant was not content merely to complain about events or decisions he considered unsatisfactory, he made a number of unsubstantiated personal attacks on the individuals involved. The Claimant also began to reach further back in time to find things to complain about, without any or any satisfactory explanation for his delay.

[390]In Grievance 2, separately from complaining about the sufficiency of the Respondent’s response to his DSAR, the Claimant accused Ms Garmute of being deliberately obstructive and employing a variety of obfuscation techniques, without providing any proper basis for such a grave allegation.

[391]In Grievance 3, the Claimant complained about the Respondent's failure to follow Covid-safe protocols, putting his health and safety at risk, along with that of his family. The Claimant then proceeded to include substantially the same complaint in Grievance number 4.

[392]In Grievance 3, Mr Farmer is accused of bullying, harassing and punishing the Claimant for complaining about on-campus teaching, by setting up an unexplained meeting at short notice and raising “non-existent GDPR issues” (i.e. fabricating misconduct). The facts put forward by the Claimant did not begin to justify the excessive terms in which he complained.

[393]In Grievance 4, Mrs Garner is accused of threatening, bullying and forcing the Claimant to teach in an unsafe environment, where the evidence relied upon to support such a strong allegation was her giving, objectively, anodyne management advice. Furthermore, the Claimant raised this 5 months after the event.

[394]In Grievance 5, the Claimant complained about the letter he had received in September 2018, regarding a failure to return to work and disciplinary action. This complaint was raised 18 months after the event without an explanation for his delay. This was a mix-up which had been quickly and easily resolved at the time, which fact the Claimant included in his grievance.

[395]In Grievance 6, the Claimant again complained about the Respondent failing to provide him with a safe working environment during the Covid 19 pandemic. This was repetitive of the complaints he had made in grievances 3 and 4. The Claimant’s position at the Tribunal included the proposition that whilst the evidence relied upon was the same for these grievances, the complaints arising from them differed. He did not, however, say this to the Respondent during the disciplinary process. Further and separately, the Respondent was entitled, reasonably, to consider there was a substantial degree of overlap in this regard, the Claimant coming back again and again to his deeply held conviction that the measures the Respondent took in response to Covid were insufficient.

[396]In Grievance 7, the Claimant complained about Mr Farmer threatening him with disciplinary action for using his personal email address to send evidence of health and safety breaches. This was substantially the same complaint as that made in grievance 3 about Mr Farmer bullying him by focusing on non-existent GDPR issues.

[397]In Grievance 8, the Claimant went back three years to complain about not being employed during his family’s South Africa trip. He accused Mrs Ashman of gaslighting (i.e. lying to) him.

[398]The Claimant did not provide the Respondent with any good reason for proceeding in raising grievances as he did. Notably, the Claimant did not say then, it was because of his ASD that it had seemed appropriate to complain about each matter separately. Whilst the Claimant suggests the Respondent ought to have known this was a manifestation of his ASD, his refusal to cooperate with an occupational health referral (otherwise than on the basis the Respondent would pay for an adviser of his choosing) denied them advice in this regard. Not only did the Claimant fail to advance an explanation for his conduct based on neurodiversity, his representations at the time did not acknowledge there was any behaviour calling for an explanation.

[399]In all the circumstances, the Respondent had reasonable grounds to reach a conclusion that the manner in which the Claimant raised his grievances developed to the point where he was intending to vex.

[400]The evidence of trust and confidence having broken down was overwhelming. The Claimant’s correspondence was replete with accusations of dishonesty, bad faith, obfuscation and concealment. There was little if any evidence of the Claimant ever accepting a decision with which he disagreed. The Claimant himself repeatedly declared that trust and confidence had broken down. In substance, the relationship between the Claimant and the Respondent never survived his Covid-related concerns. The Claimant says the issues he raised in that regard were not addressed. This is not so. His concerns were addressed, in the sense that the Respondent explained its position at length. This was done not merely once but many times. When the Claimant says his concerns were not addressed, what he actually means is he was not satisfied by the Respondent's response to Covid. There was no prospect of the Respondent persuading the Claimant it was acting in a proper way. His views on this issue were far too entrenched and he could not move from then, or accept that others might, in good faith, have a different position.

[401]Whilst the Claimant spoke of mediation, there was nothing to suggest this was likely to succeed. When his position was explored during the appeal hearing, it became apparent that what he called mediation, would more accurately be described as capitulation by the Respondent. He wanted the Respondent to accept that he was right and it was wrong. The relationship was not going to be repaired in that way.

[402]The evidence of the Claimant’s failure to abide by Mr Farmer’s, reasonable, instruction was entirely clear. He had been told to desist from sending all staff emails and yet chose to continue. The Claimant’s attempts to sidestep this with weak arguments on interpretation could, reasonably, be dismissed. The reality was all too obvious, the Claimant refused to follow this instruction because he believed he was in the right and the Respondent in the wrong. Reasonable Investigation

[403]The evidence relevant to the matters considered at the disciplinary hearing emerged from the digital paper trail. This was not a case where there was a need to interview witnesses, to obtain their recollection of workplace events or look for CCTV of the same. By the time the Claimant began to raise his grievances, he was no longer attending the Respondent’s campus.

[404]Whilst the Claimant sought documents, by DSAR and otherwise, this was in order to demonstrate that he was right and the Respondent was wrong, with respect to the substance of his grievances. This material was not relevant to whether his grievances were excessive, repetitive and / or made unsubstantiated personal attacks. Neither would it have done anything to show that trust and confidence was reparable or that he had indeed followed Mr Farmer’s instruction. The Claimant was seeking to fight a different battle.

[405]The final hearing bundle ran to over 2,000 pages. We have been shown no document with respect to which it could, reasonably, be said, that it ought to have been included in the Respondent’s investigation (i.e. because it had a bearing on the matters being considered at the disciplinary hearing) and was not.

[406]The only evidence that might have been helpful and was not available, would have been an up-to-date occupational health report. The Claimant’s unreasonable stance had prevented this from being obtained. It was entirely proper for the Respondent to wish to instruct its own occupational health adviser, rather than to fund the Claimant in choosing someone to give advice. One of the principal reasons that employers seek advice from independent occupational health providers, is the perceived lack of independence in reports provided by those who have a relationship with the employee, such as their GP or another treating physician. The Claimant’s approach in this case demonstrated a desire to exert control over the advice provided. The factual additions or amendments the Claimant sought to make to the occupational health advice the Respondent had obtained, were minor and lacking in materiality. It is difficult to avoid drawing the conclusion that his real objection was to the opinion put forward by the adviser, with which he did not agree. There is little to be gained by an employer in seeking occupational health advice, if that is not very much more than a vehicle for the employee’s opinions to be conveyed. In Tribunal proceedings, claimants sometimes seek to rely on medical evidence that includes expressions such as “the patient reports…”, “I am told…” and “Mr [X] says…”. This often reflects views the patient feels strongly about or has asked to be included, upon which the practitioner is not minded to give an opinion. Medical evidence of this sort is not helpful to the employer or Tribunal. The Respondent can simply ask the employee for their own opinion. As set out earlier in this decision, the fact of an ongoing contractual relationship with an occupational health provider does not mean the advice provided lacks independence. An employer is not assisted by receiving poor advice, which for example says an employee is fit to return to work, when they are not. This would be a recipe for disaster. There was no evidence here of the Respondent seeking a specific opinion, to serve a predetermined end, notwithstanding that appears to have been the Claimant’s belief. It would be more difficult for the Respondent to have confidence in an opinion provided by someone the Claimant hand-picked and might, given the pattern of his previous behaviour, be expected to have pressure applied to them to endorse the Claimant's views. Nonetheless, In order to address the Claimant’s concerns arising from the way in which the previous report had been disclosed, the Respondent was willing to go outside of its usual provider. This was a reasonable accommodation.

[407]We cannot say the Respondent’s investigation was insufficient or outwith the reasonable band in that regard. Fair procedure

[408]We are satisfied the Respondent followed its own disciplinary policy and a fair procedure more generally.

[409]Given the pattern of the Claimant’s grievances, their number, their repetitiveness, their lack of merit, the making of personal attacks on the honesty or integrity of individuals without substantiation, reaching ever further back in time and his inability to accept the Respondent’s decisions in this regard and move on, it is unsurprising this became a cause of concern. Mrs Walden was well placed to form an opinion in this regard. Because of her position within the Respondent, she had a helicopter view of the Claimant’s grievances. The Claimant’s line manager, Ms Lambert, was not so well-placed. We do not agree with the Claimant that a decision to instigate disciplinary proceedings must, under the Respondent’s policy, be made by the line manager. It appears to us, that the passages cited earlier in this decision envisage circumstances where another manager may be the appropriate person to do this. Even if the Claimant were right about a literal reading, it is rarely the case that an employer’s written disciplinary procedure will cover every conceivable situation. We are satisfied there was nothing improper or unfair in Mrs Walden acting as she did.

[410]The Claimant was written to, notified of the allegations, warned that a possible outcome was his dismissal and reminded of his right to be accompanied by a work colleague or trade union representative. The Claimant was also told that he would be provided with the management case, no less than three days before the hearing, in accordance with the Respondent’s policy.

[411]Whilst it is understandable the Claimant would wish to better understand the Respondent’s position on the headline allegations, this would be explained by way of the management case. There was no departure from the Respondent’s policy in providing this to him at the point specified. The Respondent was not obliged, under the policy or pursuant to the ACAS Code, to furnish this at the outset of disciplinary proceedings. The Respondent had to give the Claimant information about the case and evidence he had to answer before the disciplinary hearing, with sufficient time for him to consider how to respond. Whilst some reasonable employers might have a policy which provided for this information to be supplied sooner than three working days before the hearing, we cannot say that no reasonable employer would proceed as the Respondent did here.

[412]The Respondent did not have to respond to the Claimant and his solicitor as though they were engaged in litigation. These were internal disciplinary proceedings. The Claimant was, of course, at liberty to bring a claim in the Tribunal if he wished to litigate the matter.

[413]In terms of email restrictions on the disciplinary invitation letter, as set out earlier in this decision, the Claimant could have printed or downloaded this and forwarded it to his solicitor if he wished, or asked the Respondent to provide an unrestricted version. The real difficulty here, based on the Claimant’s evidence, is that he did not read the letter. Our finding is this was because he was choosing to ignore emails about the disciplinary process. In this as in a number of other matters, the Claimant adopted an obstructive approach. It was a difficulty of his own making. There was nothing to put the Respondent on notice that the Claimant would not receive emails sent to him and, therefore, no need to contact him by other means. Nor was the lack of a response from the Claimant surprising. Sometimes he chose to engage in the Respondent’s processes and sometimes he did not. A fair procedure required the Respondent to give the Claimant the opportunity to participate. It was not required to press him to do so. And indeed, trying to make the Claimant do things he did not wish to would appear to have been something of a fool’s errand.

[414]In both the original and the rescheduled invitation, the Claimant was given the option to attend the campus or by Teams.

[415]The management case was sent to the Claimant on 17 March 2022, at a point compliant with the Respondent’s policy requiring this be done three days before the disciplinary hearing. As set out above, the Claimant is wrong in what he says about the calculation of working days. The management case explained to the Claimant how it was the Respondent said his grievances were vexatious, why it believed trust and confidence had broken down and the circumstances in which he had failed to comply with Mr Farmer’s instruction. This was appropriately comprehensive and clear. Had the Claimant accessed this at the time it was sent, there would have been a reasonable opportunity for him to consider his response in advance of the disciplinary hearing, by which we mean deciding what he would say to justify the manner in which he had raised grievances, formulate representations on trust and confidence and explain his position on Mr Farmer’s instruction. Hypothetically, if the Claimant had recognised any fault on his own part, he would have had enough time to consider putting forward mitigation.

[416]On the morning of 23 March 2022, the Claimant did not attend. This was not in itself especially surprising, given his selective approach to participation in the Respondent’s processes. Having waited in case he was merely late, the Respondent decided to continue in his absence. The Claimant had been warned in the invitation letter that if he did not attend, the hearing may go ahead in his absence. Then, starting at 10:21 am, the Claimant and his solicitor began to send emails saying the Claimant had not received notice of the hearing.

[417]Whilst some reasonable employers might have postponed the disciplinary hearing, to give the Claimant a further chance to attend, we cannot say that other reasonable employers would not have proceeded as the Respondent did here. The Respondent could, reasonably, conclude the Claimant had been notified of the hearing and provided with the management case at proper times, in accordance with the policy, and any failure to open or engage with that material was a matter for him.

[418]The fact of the link not working for the Claimant is not relevant to fairness. Had he sought to access this in a timely way, any difficulty could easily have been overcome. Once again, the problem was him not looking at this when it was sent.

[419]Following the recommendation of the disciplinary panel, the matter proceeded to a representations hearing. The Claimant had prepared a script of all of the things he wished to say and was allowed to read from this.

[420]A further copy of the management case was sent by link well in advance of the representations hearing. In circumstances where the Claimant insisted on involving his solicitor, any difficulty between them arising from a period of annual leave is a matter for the Claimant and not the Respondent.

[421]The suggestion that the Claimant was put at a disadvantage because he had misunderstood the scope of the hearing, with the result he sought to address the substance of the management case, rather than advance mitigation, is a fanciful one. There was no prospect whatsoever of the Claimant advancing mitigation, because he had an unshakable conviction that he had done no wrong. The Claimant could not, therefore, show any insight or contrition. Furthermore, Mr Marshall did engage with the Claimant’s representations about the substance of the management case. It is clear from the outcome letter that his consideration of whether the correct procedure had been followed, included whether he was satisfied by and agreed with the conclusions reached by the disciplinary panel.

[422]The Claimant did not then advance his ASD explanation. Even now, this is only put forward in a limited way, as an explanation for why there were 8 grievances rather than one and – only by the end of the Tribunal hearing – that some of his language may have been unacceptable.

[423]Immediately following the representations hearing, Ms Hopkins had sought a copy of the Claimant’s script. No doubt, she had anticipated it would be sent by return. The Claimant did not do this, however, presumably because he wanted to make further representations in writing, which he did by his covering email. Ms Hopkins regretted having extended this invitation and Mr Marshall proceeded to make a decision without the document.

[424]The script having been sought, some reasonable employers might have decided to postpone a decision until it was received. We cannot, however, say that no reasonable employer would have proceeded as the Respondent did. The Claimant had no right to make written representations, the deadline for that course had expired. Ms Hopkins had made a full note of the proceedings. The Claimant was not being afforded a second bite of the cherry.

[425]The suggestion that the Respondent ought to have had an occupational health professional in attendance at the representations hearing is difficult to understand. Occupational health give advice about the fitness of employees for work, the prognosis for return and reasonable adjustments that might be made. They are not caregivers. Whilst occupational health advice prior to a decision to dismiss may have been helpful, the absence of this stemmed from the Claimant having adopted an obstructive approach. It was reasonable for the Respondent to proceed without it in such circumstances.

[426]We did not find any predetermination on the part of Mr Marshall. He explored matters with the Claimant in a thorough way. This is consistent with him having an open mind and wishing to afford an employee at risk of dismissal, a full opportunity to make representations before a final decision was made.

[427]The appeal process was exceedingly thorough. Notwithstanding Mrs Ryan said she was not conducting a rehearing, she explored the substance of this matter in considerable detail. This included engaging with the Claimant's argument that submitting multiple grievances was not vexatious, which would seem to go to the substance of the misconduct found, rather than being merely a procedural point.

[428]Mrs Ryan had picked up on the reference to disability and absence of an occupational health report. She took this up both during the hearing and thereafter. Having heard from the Claimant at length, she asked many relevant questions seeking to better understand his position.

[429]Mrs Ryan was clearly interested in the extent to which it might be possible to repair the relationship by way of mediation. Unfortunately, the Claimant’s response on this point was very far from encouraging. Whilst many reasonable employers might have proceeded to make a decision on the appeal immediately following the hearing, Mrs Ryan subsequently made extensive enquiries to satisfy herself on various points which had been raised or occurred to her. To the extent this was a review rather than a rehearing, no stone would seem to have gone unturned.

[430]We address below the Claimant’s specific points on fairness, as set out in the list of issues.431. [2.6.1] There was no failure to investigate the allegations against the Claimant, these were investigated appropriately. The evidence emerged from the digital paper trail.

432. [2.6.2] There was no failure to provide sufficient information or better particulars of the disciplinary allegations. The detail in this regard was provided by way of the management case, in accordance with the Respondent’s procedure.

433. [2.6.3] There was no failure to provide sufficient written evidence to the Claimant to prepare for the disciplinary hearing on 23 March 2022. The default in this regard was that of the Claimant, in choosing to ignore the emails he was sent about this matter.

434. [2.6.4] There was no failure to adequately bring the disciplinary hearing location and time to the Claimant’s attention. He was notified in a proper way at a proper time. Once again, the default in this regard was that of the Claimant, in choosing to ignore the emails he was sent about this matter.

435. [2.6.5] Whilst some reasonable employers might have postponed the disciplinary hearing, for the reasons set out above we cannot say a decision to proceed fell outwith the reasonable band.

436. [2.6.6] the Claimant was afforded the opportunity to be represented by his trade union or a work colleague. He did not ask for and was not refused the opportunity to be accompanied by a friend. The only request refused in this regard, was for the Claimant to be represented by his solicitor. It was entirely reasonable for the Respondent to refuse legal representation in an employer’s disciplinary hearing.

437. [2.6.7] There was no failure to provide the Claimant with written evidence in sufficient time for him to make written representations. This was provided before the disciplinary hearing. It was provided again well in advance of the representations hearing. The default in this regard was that of the Claimant, in ignoring this when it was first sent, and of the Claimant or his solicitor in failing to access the material when it was sent again.

438. [2.6.8] Mr Marshall was impartial. Mr Marshall was not closely involved in the Claimant’s whistleblowing disclosures. Mr Marshall was part of the Respondent’s senior management team, all of whom were involved to some extent in the return to face-to-face teaching. There was no good reason to exclude Mr Marshall from carrying out this function. The objection raised in this part of the list of issues speaks to the Claimant’s loss of trust in the Respondent generally.

439. [2.6.9] There was no predetermination nor any indication of the same.

440. [2.6.10] Mr Marshall made his decision without waiting for the Claimant’s script. While some reasonable employers might have delayed the decision to allow for this to be received, for the reasons set out above we cannot say proceeding as the Respondent did fell outwith the reasonable band.

441. [2.6.11] There was a delay before the appeal hearing, as a result of the summer vacation. This had no bearing on the fairness of the process. The Claimant was not in any lesser position to argue his points.

[442]We are satisfied in all the circumstances of the case, the Respondent followed a fair procedure that was comfortably within the reasonable band governing the same. Sanction

[443]The Claimant was found guilty of gross misconduct, misusing the grievance procedure to vex his employer and failing to follow a reasonable management instruction not to send his correspondence to the entire staff body. There had also, demonstrably, been a breakdown in trust and confidence. Whilst the Claimant spoke of mediation, what he actually sought was a capitulation. There was no expression of regret, nor insight, nor indication that he would not behave in a similar way in the future. No health-related or neurodiversity reason was advanced to explain what he had done. Nor was there any reason for the Respondent to suppose this was so. We could not possibly say that the sanction of dismissal fell outwith the reasonable band. Protected Disclosure Detriment – ERA section 47B

[444]Before engaging in a detailed analysis of whether each or any of the very many matters the Claimant relies upon do amount to protected disclosures, we will first look at the alleged detriments, whether the thing was done, whether it amounted to a detriment and if so, why it was done. [5.1.1] On 1 October 2020, Wendy Garner (Head of Department) told the Claimant words to the effect of ‘if you refuse to do face-to-face teaching, that

[445]What Mrs Garner said on this occasion was “refusing to teach a class face-toface could amount to a disciplinary matter, although we would not want it to get to that point.”

[446]This was not a detriment. It was an anodyne statement about what might happen in the circumstances the Claimant had referred to. Quite obviously, unless an employee had good reason, refusing to follow a reasonable management instruction is something that might well be treated as a disciplinary matter. The making of such an obvious and unobjectionable statement could not without more, reasonably, amount to a detriment. The Claimant’s sense of grievance in this regard was unjustified.

[447]Further and separately, Mrs Garner did not say this because of any information the Claimant had disclosed, to the extent it is relied upon as amounting to a protected disclosure. In particular, Mrs Garner did not say it because of being told about the student coughing over him, the Claimant’s view that the Covid protocols were not being followed or that he felt unsafe. Given we rejected the Claimant's evidence that he said she “could not continue to force him to work in an unsafe environment” her words could not have been a response to that. Nor did she speak as she did because of any of the earlier matters the Claimant says were protected disclosures. The reason Mrs Garner said what she did is that the Claimant asked her a question and she was answering it. [5.1.2] On 8 October 2020, after earlier rebuking the Claimant for sending photographs of alleged Health and Safety breaches in the workplace, Raymond Farmer (Dean of Faculty) required the Claimant to attend a face- toface meeting with 15 minutes’ notice

[448]Mr Farmer did not rebuke the Claimant. He issued a reasonable management instruction, for the Claimant not to use his Hotmail account and not to take photos of staff and students without their permission. Their already extensive exchange of email correspondence had failed, either to put the Claimant’s mind at rest, or persuade him to follow the instruction given. It was entirely reasonable for Mr Farmer to wish to speak with the Claimant in person, whilst they were on campus at the same time. This was not a detriment. The Claimant’s sense of grievance in this regard was unjustified.

[449]Further and separately, Mr Farmer did not extend this invitation because the Claimant had disclosed any of the information relied upon as tending to show a concealment of the same. His attempts to reassure or persuade the Claimant by email had failed. The Claimant was clearly very anxious about safety on campus. He was also continuing to use his Hotmail and taking photos without permission. Mr Farmer believed this was contrary to the Respondent’s rules and GDPR. He hoped that speaking with the Claimant face-to-face, might achieve more than their email correspondence had. These matters are genuinely separable from any information the Claimant had disclosed. [5.1.3] On 30 October 2020, Raymond Farmer (Dean of the Faculty) told the Claimant that if he continued to copy correspondence relating to his concerns to a personal email address (despite valid reason for doing so) ‘this will be in breach of a direct management instruction and will be dealt with accordingly’

[450]This was not a detriment. Mr Farmer gave the Claimant an entirely proper direction. Advising employees about the potential consequences of their actions can be and was here, a supportive measure. This was not done by Mr Farmer in a heavy handed or oppressive manner. The Claimant's sense of grievance in this regard was unreasonable.

[451]Further and separately, Mr Farmer did not write in this way because the Claimant had disclosed any of the information relied upon as tending to show a concealment of the same. The Respondent had issued a reasonable management instruction to the Claimant to desist from using his personal email address for correspondence about this work-related matter. The Claimant had failed to comply with that instruction. The Claimant was at risk of disciplinary action being taken if he continued in this way. Quite obviously, Mr Farmer told the Claimant what he did because he believed this was proper advice that it was appropriate to give in the circumstances. He also hoped the Claimant would be persuaded to follow the instruction. These matters are genuinely separable from any information the Claimant had disclosed. [5.1.4] In May 2021, staff Caroline Lambert (the Claimant’s line manager) and Katie Jennings (HR employee) repeatedly contacted the Claimant via his personal email despite his repeated requests for them to stop doing so and highlighting the stress and anxiety it was causing him

[452]The Claimant having told his line manager of difficulty accessing his work email, following the introduction of MFA, Ms Lambert copied a message to his personal email. The Claimant replied adopting a deliberately obstructive approach. If employees cannot access their work communication systems, there may be a need to contact them at home by other means. The Claimant corresponded as though he was litigating with Ms Lambert rather than being line managed by her. It was entirely reasonable for Ms Lambert and Ms Jennings to contact the Claimant in the way they did. The Claimant saw an opportunity to and did engage in tit-for-tat. Nothing done by Ms Lambert or Ms Jennings in this regard amounted to a detriment. The Claimant’s sense of grievance was unjustified.

[453]Further and separately, Ms Lambert and Ms Jennings did not act in this way because the Claimant had disclosed any of the information relied upon as tending to show a person failing in a legal obligation, endangerment of health and safety, or concealment of the same. They corresponded with the Claimant on his personal email because it appeared he could not be contacted by work email. [5.1.5] On 11 November 2020, Raymond Farmer (Dean of the Faculty) ignored the Claimant’s request to discuss issues in writing and insisted upon a face-toface meeting to address issues that were not clearly communicated

[454]Mr Farmer did not ignore the Claimant’s request to discuss issues in writing. They had lengthy and detailed written discussions. Whilst the Claimant was not satisfied with Mr Farmer’s responses on the issues raised, they were not unclear. Given a complete failure to reassure or satisfy the Claimant in writing, Mr Farmer, reasonably, wished to meet with him in person, hoping that more might be achieved face-to-face. Experience suggests, when parties are at loggerheads, they will sometimes be more amenable to compromise and / or able to find common ground when they meet in person, than they are whilst sat at their respective keyboards. This was an invitation to the Claimant to meet not a demand. It was not a detriment. The Claimant’s sense of grievance in this regard is unjustified.

[455]Further and separately, Mr Farmer did not seek to meet with the Claimant because the Claimant had disclosed any of the information relied upon as tending to show a person failing in a legal obligation, endangerment of health and safety, or concealment of the same. Mr Farmer wanted to speak with the Claimant for the reasons set out immediately above. His attempts to reassure or persuade the Claimant by email had failed. The Claimant was clearly very anxious about safety on campus. He was also continuing to use his Hotmail and taking photos without permission. Mr Farmer believed this was contrary to the Respondent’s rules and GDPR. He hoped that speaking with the Claimant faceto-face, might achieve more than their ever increasing email correspondence had. These matters are genuinely separable from any information the Claimant had disclosed. [5.1.6] The Respondent required the Claimant to undergo an occupational health assessment that was claimed to be to support him, but was instead conducted for the purpose of declaring him fit to take part in a face to face meeting with the Dean and HR representative

[456]An occupational health referral was made. This was to assess the Claimant's fitness for work, his ability to attend campus, to discuss matters with managers or HR and whether adjustments would assist him or a phased return to work. This was sought for precisely the reason the Claimant asserts it was not, namely to support him. The report was not requested for the purpose of declaring him fit, the object was to ascertain his fitness and what could be done to assist him. This was not a detriment. It was an entirely proper step for the Respondent to take. The Claimant's sense of grievance in this regard is unjustified.

[457]Further and separately, this referral was not made because the Claimant had same. The Claimant had gone off work sick. Advice from his GP was that he was fit only to work away from the campus. The Respondent wished to better understand the Claimant’s health and how he might be supported in a return. [5.1.7] On 4 February 2021, Kristina Garmute (Principal Registry Officer) delayed, obfuscated and excessively redacted disclosure for a DSAR made on 10 November 2020

[458]This detriment was not done. The evidence to which we have been referred does not support a conclusion that Ms Garmute delayed, obfuscated or excessively redacted the DSAR response to which the Claimant refers.

[459]The Claimant's request was very broad. The terms in which he applied were likely to capture a vast body of documentation that either did not relate to him at all or was not relevant to the matters he was concerned about. Reasonably, Ms Garmute sought to clarify and refine the search to be undertaken. Once this was complete, it would then be necessary for someone on the Respondent's behalf to go through all of the material identified in order to ascertain what should be provided to the Claimant and to redact the personal information of others. We think the Claimant underestimates the labour-intensive nature of this exercise. We also note that the amount of work done on this is unlikely to be reflected in the output volume because, necessarily, much irrelevant material will have been reviewed and then not provided. We see nothing in the timescale to suggest unreasonable delay. Less still have we been referred to evidence suggesting obfuscation or excessive redaction on the part of Ms Garmute. She wrote to the Claimant at length, before and after providing the DSAR response, about the scope of the Respondent's duties. It appears to us that she provided proper explanations and there is nothing to suggest that she did not follow this approach in good faith. Unfortunately, the Claimant has a tendency to use strong language, without justification, when others act in a way with which he does not agree. The ICO outcome letter does not support this detriment having been done, not least because it does not include any specific finding of default.

[460]Further and separately, the response to the Claimant's DSAR was not influenced by his disclosure of any of the information relied upon as tending to show a concealment of the same. To the extent that Ms Garmute was or became aware of any of the material disclosures – we were referred to no specific evidence in this regard – there was nothing to suggest the DSAR response was delayed, limited or otherwise affected by this. Dealing with DSARs is a core part of the work undertaken by the Respondent's IGU. The manner in which Ms Garmute responded to the Claimant's request appears wholly unremarkable. [5.1.8] In October 2020, Raymond Farmer (Dean of the Faculty) reported disclosures as a ‘data breach’ to the Information Governance Unit. The Claimant became aware of this on 6 January 2021 when contacted by Diana Dinu (Information Governance Unit) requiring his to delete the evidence of Health and Safety breaches

[461]This was not a detriment. The Claimant had been instructed not to use his personal email for work-related matters or to take photos of students without their permission. When he persisted in this, it was reasonable for Mr Farmer to refer the matter to IGU. The Respondent has a legal duty as a data controller not merely to comply with its GDPR duties but also to report suspected breaches. As set out in our fact find, we were rather puzzled by the IGU’s acceptance of the proposition that the Claimant taking photos of staff and students without their permission, during his working hours, in the workplace, was a personal matter. The Claimant's sense of grievance in this regard was unjustified.

[462]Further and separately, Mr Farmer did not do this because the Claimant had same. Quite obviously, Mr Farmer proceeded as he did because he believed the Claimant was acting in breach of GDPR, despite having been instructed not to do so and it was necessary to report the same. These factors are properly separable from any disclosure of information. [5.1.9] On 31 August 2021, Louise Walden (Director of Partnering - HR) delayed and/or declined to afford the Claimant a right of appeal in relation to Grievance 1

[463]This detriment was not done. Ms Walden’s letter of 31 August 2021 expressly advised the Claimant of his right to appeal against her decision on this grievance.

[464]In his closing submissions, the Claimant recognised that Ms Walden did not do that which he alleged. He then appeared, for the first time, to advance a different alleged detriment on the part of Ms Walden. This new matter was not in the list of issues nor part of the Claimant's claim. [5.1.10] After 20 October 2021, Louise Walden determined that Grievance 8 would not be investigated

[465]This detriment was done.

[466]Ms Walden did not make this decision because the Claimant had disclosed any of the information relied upon as tending to show a person failing in a legal obligation, endangerment of health and safety, or concealment of the same. It is not the case that Ms Walden decided not to proceed with grievance number 8 because of the Claimant raising his concerns. It appeared to Ms Walden that the Claimant was misusing the grievance procedure. Apart from one small aspect, none of his grievances had been upheld. She believed his complaints had become repetitive, he was making unjustified personal attacks and going ever further back in time in search of material to put into his grievances and open new avenues of dispute with his employer. Ms Walden believed this pattern showed the Claimant was intending to vex, which would amount to misconduct. She believed the potential misconduct should be considered before the Respondent conducted another grievance process. It was the manner in which the Claimant proceeded that concerned her. These factors are properly separable from any disclosure of information. [5.1.11] In November 2021, Louise Walden commenced disciplinary proceedings against the Claimant

[467]This detriment was done. It was not, however, because the Claimant had same.

[468]Ms Walden decided upon this course (jointly with Ms Reeves and Ms Hoppitt) because of the manner in which the Claimant had raised his grievances. We repeat our findings on causation as set out immediately above in connection with detriment [5.1.10]. Furthermore, Ms Walden was also concerned there had been a breakdown in trust and confidence. These factors are properly separable from any protected disclosure. Protected Disclosure

[469]Having found that none of the alleged detriments set out above was done to any extent whatsoever because of the Claimant’s disclosure of any of the information relied upon at [4.1.1.1] to [4.1.1.13] as amounting to him making protected disclosures, it is unnecessary for us to determine whether they were qualifying within ERA section 43B. Health and Safety Detriment – ERA section 44(1A) [6.1] On 1 October 2020, did Wendy Garner (Head of Department) tell the Claimant words to the effect of ‘if you refuse to do face-to-face teaching, that

[470]Save that Mrs Garner said “could” rather than “would”, this was done. It was not, however, a detriment. We repeat our findings as set out in connection with the Claimant's protected disclosure claim at [5.1.1] [6.2] Was that a detriment done because circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, the Claimant left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his or her place of work

[471]The reason Mrs Garner said what she did was not because of the matters set out in ERA section 44(1A) or any of them. She spoke as she did because the Claimant asked her a question and she was answering it.

[472]Further and separately, the Claimant did not leave, or propose to leave or refuse to return to the workplace, or the relevant part, whether because of a (perceived) serious and imminent danger, or at all. The Claimant asked what would happen if he refused to teach students face-to-face. He did not leave the workplace or relevant part. He did not refuse to return to the workplace or relevant part. He did not say he would do either of those things. The mere refusal to carry out his teaching duties would not fall within ERA section 44(1A) and the Claimant did not in any event, either refuse or propose to refuse. He merely asked a hypothetical question about teaching which Mrs Garner answered.

[473]It is unnecessary for us to make a finding about whether the Claimant had the requisite reasonable belief. Disabled Person

[474]The list of issues with respect to disability are set out below: 8.1 The Respondent concedes that the Claimant was disabled within the meaning of section 6 Equality Act 2010 by reason of the cumulative impact of his depression and Autistic Spectrum Condition from April 2016 onwards 8.1.1. The Respondent does not accept that the Claimant has established that his Autism, when considered alone, amounts to a disability within the meaning of s.6 EqA 2010 but does not consider that it is necessary for the Tribunal to reach a finding on that issue for the purpose of these proceedings 8.1.2. It is noted that the Claimant contends his lifelong Autistic Spectrum Condition in combination with depression / anxiety reached the threshold of disability in November 2015. This is not an issue which it will be necessary for the tribunal to decide because none of the acts or omissions which form part of the claim took place before April 2016

[475]The only dispute between the parties under this heading is whether the Claimant was a disabled person solely by reason of autism. The resolution of that dispute would, however, only be necessary if it made a material difference to one or more of his claims. We will address the disability discrimination claims on the admitted basis and return to this question of the impairment of autism in isolation, if and insofar as this is required. Discrimination Arising

[476]We will consider each alleged act of unfavourable treatment in turn. 9.1.1.1. Mike Larter (HR) refused to answer the Claimant’s question (asked in an e-mail on 9 February 2022) about why a University-appointed OH practitioner would be impartial, but that an OH practitioner of my choosing would not.

[477]Strictly speaking, it could be said that Mr Larter did not reply to the question in the Claimant's email of 9 February 2022. This was not, however, a detriment. Correspondence on this point had gone back and forth. Here as in many other areas, no agreement could be reached between the Claimant and Respondent. Mr Larter had explained the Respondent's position. For the reasons set out previously, we are satisfied it was reasonable for the Respondent to wish to instruct an independent OH adviser to assess the Claimant. Mr Larter had explained his concerns around impartiality and the Claimant was not satisfied by this. Further repetitive correspondence going back and forth was unlikely to assist either the Claimant or the Respondent. It is unclear to what extent the Claimant felt aggrieved about the lack of a reply to this particular email at the time (as opposed to the fact of the Respondent's stance) but if and to the extent he did, it was unjustified.

[478]Further and separately, this was not because of something arising from the Claimant’s disability. We were referred to no evidence tending to suggest a link between Mr Larter’s lack of a reply and any of the matters at [9.2.1] to [9.2.15]. The most likely reason for this is simply that Mr Larter felt he had sufficiently explained the Respondent's position and further correspondence would not satisfy the Claimant. 9.1.1.2. Joanne Oguzie (HR) did not provide details of the management case against the Claimant despite his e-mail to her at 11:51 on 23 March 2022 which stated that he still did “not know the details of the accusation which have been levelled against me”

[479]Mrs Oguzie replied to the Claimant promptly. She told him the link to the management case had been sent on 17 March 2022. The disciplinary hearing had already taken place by this point. Mrs Oguzie explained her view that further dialogue would be better after he had received the outcome letter. He would of course then have his further rights under the Respondent's procedure. Our finding is that the Claimant had been deliberately avoiding emails about the disciplinary process because of his objection to it. In these circumstances, the Claimant's sense of grievance in Mrs Oguzie not immediately sending him a further copy of or link to the management case was not justified.

[480]Further and separately, this was not because of something the Claimant alleges arises from his disability. We were referred to no evidence suggesting a link in this regard. Quite obviously, Mrs Oguzie acted as she did because she believed the management case had been sent to the Claimant in good time, the disciplinary had finished and it was better for him to have the outcome of that before corresponding further. 9.1.1.3. During March-May 2022, the Respondent’s HR representatives (Louise Walden, Joanne Oguzie and Mike Larter) and legal representative (Emma Glazzard) repeatedly either denied or ignored the Claimant and his adviser’s requests for independent OH support to enable the Claimant to attend a rescheduled disciplinary hearing and to prepare for oral representations

[481]The Claimant's requests with respect to occupational health were not ignored. The position had been explained to the Claimant previously and Mr Larter did so again on 30 May 2022. A careful reading of the correspondence from the Claimant's solicitors betrays a misunderstanding that appears to have been lost on the Respondent at the time. The terms in which the Claimant's solicitor wrote suggest he envisaged the Claimant being accompanied by a representative from occupational health, to provide care and support the Claimant during the representations hearing. This is not part of the role of OH. As set out previously, occupational health provide advice to employers about the health of employees, whether they are well enough to carry out their duties and measures which might assist or support them in a return to work. OH are not care givers or support workers. The low bar of the Shamoon threshold is also applicable in this context. The Claimant's sense of grievance was unjustified. The absence of an offer by the Respondent to have OH in attendance was not unfavourable treatment.

[482]Further and separately, this was not because of something the Claimant alleges arises from his disability. We were referred to no evidence suggesting a link in this regard. Mr Larter wrote as and to the extent he did because an impasse had been reached. It is likely the Respondent did not appreciate the Claimant's solicitor was proposing OH act as a care giver or support worker, because that is not something occupational health does. 9.1.1.4. On 30 June 2022, the Vice-Chancellor’s representative ignored the Claimant’s written addendum (sent 23 June 2023) to his oral representations to the Vice Chancellor when reaching the decision to dismiss the Claimant with immediate effect

[483]The Claimant spoke from a script and was invited to send a copy. Having anticipated this would be sent across immediately, when that did not happen, Mr Marshall decided not to wait. He made a decision based on the information he had already. To that extent the alleged unfavourable treatment was done.

[484]We are also satisfied this did, objectively, amount to unfavourable treatment. Whilst the Claimant had lost the right to make written representations and did not suffer any material disadvantage, in that a full note had been made of his oral submissions when reading out the script, he had been invited to send in a copy and this would, reasonably, give him the impression Mr Marshall would await that.

[485]The unfavourable treatment was not done because of anything the Claimant relies upon as arising from his disability. Mr Marshall decided to proceed without the script because this was not sent across immediately, he had the benefit of a full note and the Claimant had lost the right to make written representations. 9.1.2. Giving him ambiguous/inconsistent responses: 9.1.2.1. In November 2021, Mike Larter (HR) agreed via e-mail to allow an independent OH practitioner to undertake an OH assessment regarding his suitability to return to work on campus, but later rescinding that in January 2022 and required that the OH practitioner should be one of the Respondent’s choosing as he would “have concerns about the impartiality of a practitioner of [the Claimant’s] choosing”

[486]This complaint in the list of issues was preceded by the words “an example includes”. During the hearing the Judge explained to the parties that the use of such language did not result in an open-ended claim and the Claimant was not free to add in further “examples” as he wished. In the event, the Claimant did not seek to add to this.

[487]Mr Larter agreed that the Claimant could be assessed by an independent occupational health adviser. It was, however, made clear this would be a person appointed by the University. Mr Larter did not agree, by email or otherwise, that the Claimant could choose his own OH practitioner and that the University would pay for this. The alleged unfavourable treatment, namely the rescinding of an agreement, was not done.

[488]Further and separately, the stance adopted by Mr Larter was not because of anything the Claimant relies upon as arising from his disability. Mr Larter believed that a health practitioner chosen by the Claimant would lack independence. The Respondent already had an existing agreement with an OH provider. It was, however, willing to go beyond its usual practice and appoint a an appropriate professional outside of this, complying with its procurement process. None of these factors arose from the Claimant's disability. 9.1.3. Joanne Oguzie (Director of Partnering - HR) did not provide adequate warning of the disciplinary hearing’s location and time during November 2021 and March 2022, particularly considering the Claimant’s disability as below

[489]The alleged unfavourable treatment was not done. The Claimant was given ample notice of the disciplinary hearing time and location. To the extent the Claimant was ignoring emails about this, that was a matter for him.

[490]Further and separately, the manner in which the Claimant was warned of the disciplinary was not done because of any of the matters he relies upon as arising from his disability. The Respondent simply followed its usual approach. 9.1.4. The disciplinary procedure. Aspects which specifically discriminated against his disability: 9.1.4.1. In or before March 2022, Joanne Oguzie (HR) and/or any other of the Respondent’s employees failed to bring the hearing to the Claimant’s attention when the Respondent knew (or reasonably ought to have known) that he was unable to keep on top of checking his e-mails as he had explicitly stated this to his line manager.

[491]The alleged unfavourable treatment – failing to bring the Claimant's attention to the disciplinary hearing when it was known, or ought reasonably to have been, that he was not keeping on top of his emails – was not done.

[492]The Claimant was notified of the disciplinary in an entirely proper manner. The Respondent did not know he had any difficulty keeping on top of his emails and nor was there any reasonable basis for it so to do. There was nothing to alert Mrs Walden or Mrs Oguzie and we did not find the Claimant told Mrs Lambert of this.

[493]Separately, the manner in which Mrs Oguzie sought to bring the disciplinary hearing to the Claimant's attention and fact of her not going further in that regard, was not because of anything the Claimant relies upon as arising from his disability. Mrs Oguzie proceeded as she did because this was the usual practice and there appeared no good reason to do otherwise. 9.1.4.2. In or before March 2022, Joanne Oguzie (HR) and/or any other of the Respondent’s employees failed to provide advance (or any) documentation of the management case and evidence against him.

[494]The alleged unfavourable treatment was not done. Mrs Oguzie sent the Claimant a link to the management case on 17 March 2022. The Claimant did not access this.

[495]Further and separately, the manner and time at which the management case was sent to the Claimant was not because of anything the Claimant relies upon as arising from his disability. Mrs Oguzie proceeded in this way because it was the Respondent's disciplinary policy and usual practice. 9.1.4.3. On 2 March 2022, Joanne Oguzie (HR) restricted the permissions on the e-mail that notified the Claimant of the disciplinary hearing so that the e-mail could not be forwarded or printed, so that the Claimant could only view this on his work laptop. The Respondent knew (or reasonably ought to have known) that the Claimant was suffering severe anxiety at the time and (among other symptoms) felt nauseous even just opening his work laptop. This also made it more difficult for the Claimant to seek advice.

[496]Mrs Oguzie did send the Claimant an email with data security restrictions. This was intended to preserve the confidentiality of the disciplinary process for the Claimant's benefit. He could easily have asked for the email to be re-sent without protection or printed it out and sent it on to his solicitor. The difficulty arose because the Claimant ignored the email until the morning of the disciplinary hearing. The Respondent did not know that the Claimant was experiencing any difficulty opening his laptop and nor was there any reasonable basis upon which it ought to have. The Claimant did not tell anyone of such a problem. To the extent the alleged treatment was done – namely a confidential email being sent with restrictions – the Claimant's sense of grievance is unjustified and it did not amount to unfavourable treatment.

[497]Further and separately, the manner in which the email was sent was not because of anything the Claimant relies upon as arising from his disability. Mrs Oguzie sent the email in this way because it was the Respondent's usual practice, intended to ensure data security and confidentiality. 9.1.4.4. The Respondent prevented the Claimant from having a non-University companion from accompanying him during the disciplinary procedure (March 2022), the representations to the Vice Chancellor (June 2022), or the appeal (September 2022), despite the acknowledged need for support.

[498]The Claimant was not prevented from having a non-university companion, he was advised of his right to be accompanied by a trade union representative. The Claimant did not ask to be accompanied by a friend. The Claimant was not allowed to be accompanied by his solicitor. To that latter extent only was the alleged unfavourable treatment done.

[499]The Respondent not allowing the Claimant to be accompanied by his solicitor was not because of anything he alleges arises from his disability. The reason for this was that it accorded with the Respondent's policy and the Claimant's statutory entitlement. 9.1.4.5. The Respondent’s representative Emma Glazzard refused the Claimant’s requests (March 2022, April 2022) to pause the disciplinary process to allow an occupational health assessment to take place

[500]The Respondent did not pause the process to allow for an occupational health assessment. This was not unfavourable treatment, as the Claimant's sense of grievance was unjustified. The parties had reached an impasse on this issue. The Respondent wished for the Claimant to be assessed by an independent occupational health adviser it appointed. The Claimant insisted on the Respondent funding a practitioner of his choosing. As before, the Respondent's proposal was reasonable and the Claimant's objections not.

[501]Further and separately, the Respondent’s approach in this regard was not because of anything the Claimant relies upon as arising from his disability. The Respondent's adopted this position for the reasons set out previously. 9.1.4.6. The Respondent effectively prevented the Claimant from making formal written submissions to the Vice Chancellor (which the Respondent’s representative Emma Glazzard acknowledged in an e-mail dated 1 June 2022 was a reasonable adjustment) by failing to provide the details of the management case and evidence against him until after the deadline for the written submissions had passed, and by refusing to extend that deadline.

[502]The Respondent did not fail to provide the management case until after the deadline for submissions had passed or prevent the Claimant from making written submissions. The Respondent sent a link to the management case in March 2022. Pursuant to the Claimant's request, a further link was sent to his solicitor on 30 May 2022. Any difficulty was of the Claimant's making, in not accessing this material timeously. The Respondent granted an extension to 31 May 2022. It did not agree to any further extension. Only to that latter extent was the alleged unfavourable treatment done.

[503]Further and separately, neither the sending of the management case when it was, nor decision not to grant a further extension was because of anything the Claimant relies upon as arising from his disability. The management case was sent in accordance with the Respondent's disciplinary policy and usual practice. It was sent again thereafter because of the Claimant's request and insistence on corresponding through his solicitor. A further extension was refused because the Respondent believed the management case had been sent appropriately and in good time. 9.1.5. Dismissing him on 30 June 2022

[504]The unfavourable treatment was done.

[505]The Claimant was dismissed because the Respondent believed he was guilty of the misconduct alleged and there had been a breakdown in trust and confidence. That is not, however, an end to the causation question. As noted in Pnaiser, the “something arising test” can describe a range of causal connections and there may be more than one link in the chain. We must make a robust assessment. Having done that, our conclusion is that both the Claimant’s misconduct and the indicators of a breakdown in trust and confidence, were influenced to some extent by matters said to arise from his disability.

[506]As the dispute between the Claimant and the Respondent over the return to campus working post-Covid went on, the Claimant became more angry and frustrated. This contributed to him raising multiple, repetitive grievances, in which unjustified personal attacks were made and, latterly, he was seeking to vex his employer. As far as the instruction from Mr Farmer is concerned, the Claimant had a strong belief that he was in the right and the Respondent in the wrong. On that basis, he felt he could ignore Mr Farmer. The evidence of a breakdown in trust and confidence came from the Claimant's many declarations to that effect and increasingly obstructive approach towards his employer and its processes. It seems to us that these behaviours were influenced by matters arising from disability, namely:506.1 [9.2.2] low mood (associated with anxiety/depression);

506.2 [9.2.9] a tendency to be direct in conveying thinking without the diplomacy a neurotypical person would do (associated with autism and depression);

506.3 [9.2.12] A tendency to become overwhelmed in very stressful situations (associated with autism, and exacerbated by anxiety/depression), leading to: […] (2) a “fight-or-flight” response where the Claimant becomes disinhibited in defending his position;

506.4 [9.2.14] a black and white sense of right and wrong, and extreme frustration when this is violated (associated with autism).

[507]These matters are supported by the Claimant's ASD assessment. Dr Dein noted in addition to being very direct and to the point, the Claimant had deficits in reciprocal social communication and social interaction as well as restrictive and repetitive type patterns of behaviour. The assessment report also included the Claimant experiencing difficulty if he thought someone had moved the goalposts or upset if he believed they had cheated.

[508]It is clear from the witness evidence we heard and extensive correspondence to which we were referred that the Claimant had a strong belief the Respondent was “cheating” and / or moving the goal posts in connection with its Covid response. The Claimant appears to have been convinced that he had correctly interpreted all of the various legal duties which the Respondent was subject to and decided it had failed to abide by them. Furthermore, he thought the Respondent was not even adhering to its own (inadequate in his view) rules and procedures. This caused him to become frustrated and upset. Furthermore, we think it likely that his reaction to this situation (as he saw it) and low mood as a result of depression, will have exacerbated his deficit with respect to reciprocal social communication and interaction. More plainly, it contributed to him becoming increasingly rude, aggressive and unrestrained in the way he corresponded with the Respondent or engaged with its processes. In her closing submissions, denying any link between the matters for which he was dismissed and his disability, Ms Smeaton said the Claimant can be polite when he wants to. Whilst there is something in that proposition, we think it tends to oversimplify the position. We agree to this extent, when the Claimant is calm he will be likely to conduct himself appropriately, abiding by social norms that do not always come naturally. When, however, he is in a stressed state of mind such as we have found he was here, then we think he is likely to find it more difficult to conduct himself in a manner that is appropriate to the workplace. Furthermore, when the Claimant believes that others are not playing by the rules, he will be less inclined to do so himself. This tendency was manifest in some of the obstructive or tit-for-tat behaviour to which we referred.

[509]Whilst ASD and depression does not provide a complete explanation for the behaviour which led to the Claimant being dismissed, we are satisfied it was a significant contributory factor and making a robust assessment was, therefore, something arising from his disability within EqA section 15.

[510]Knowledge is at large, as EqA section 15(1) does not apply if the Respondent did not know the Claimant was disabled and could not reasonably have been expected to know.

[511]We are not persuaded the Respondent knew, or ought reasonably to have known the Claimant was a disabled person by reason of anxiety and depression in February or March 2016, by reason of the Claimant reporting his health issues and wishing not to work on site. The Claimant had accepted employment in Coventry despite living in Cambridge. That would necessitate either a very long commute or staying away from his home and family during the week. Either of these circumstances might be expected to be difficult to manage. The fact of the Claimant struggling with this, as manifested in him reporting a period of anxiety and depression, would not tend to convey to the Respondent that the Claimant had a long-term mental impairment with a substantial adverse effect on normal day to day activities or, reasonably, put the Respondent on notice of the need to investigate the same. The Claimant had taken upon himself a work situation that, by reason of geography, many or most would find difficult to bear and him struggling with this would seem unremarkable.

[512]The Claimant referred us to an email of 8 June 2018, in which he complained about a new course and what he regarded as a waste of time, including the words “I am not the only person who feels this way (I'm probably the only person who is Aspergers enough to actually say it so bluntly).” Viewed in context, which had nothing to do with disability or the Claimant's needs, we were not satisfied this, reasonably, put the Respondent on notice of the need to make further enquiries.

[513]We came to a different conclusion about the Claimant's email to Mr Lees on 11 June 2018, in which he described himself as someone who was on the autistic spectrum. Whilst not every reference made by an employee, in passing, to thinking they may be on the spectrum or some other self-diagnosis of neurodiversity, ought reasonably to prompt an employer to look further into whether the individual was a disabled person, here the Claimant was complaining about the role he would be returning to following a career break, saying it would be different from that he had before, and that it would focus on tasks that were especially stressful for him as a person on the autistic spectrum. It would have been reasonable for the Respondent to make enquiries in that regard. Such enquiries are likely to have identified both the Claimant's ASD and his anxiety and depression – or at least resulted in advice to the Respondent to treat him as such pending a formal diagnosis. Whilst the Claimant was later obstructive in the face of the Respondent's attempts to obtain advice about his health, pre-Covid it is likely he would have been more cooperative.

[514]Finally in this regard, we look at justification. Quite plainly, the Respondent had a legitimate aim, namely that of ensuring employees have a functioning working relationship with the employer and / or other staff and that they follow a fair, reasonable and proportionate disciplinary process. The question then is whether the Claimant’s dismissal amounted to proportionate means. We have come to the conclusion that it did.

[515]Whilst a different test applies, the matters we set out in connection with sanction for the Claimant's unfair dismissal claim are relevant to proportionality. He had been found guilty of gross misconduct, misusing the grievance procedure to vex his employer and failing to follow a reasonable management instruction not to send his correspondence to the entire staff body. This was a serious matter. There had also, demonstrably, been a breakdown in trust and confidence. Dismissal in such circumstances would serve the Respondent's aim.

[516]We must consider whether the Respondent's aim could have been met by lesser means. Where an employee is guilty of gross misconduct and could be dismissed, the issue of a final written warning instead will sometimes be appropriate. That would, however, seem unlikely to have served the Respondent's aim here. The purpose of a final warning is to operate as “a shot across the bow”, to warn the employee of the damage they have done and risk to which they have exposed themselves, but nonetheless give them one last opportunity to mend their ways. It is a chance to show they can be trusted not to continue with behaviour of the sort for which they had been disciplined. Unfortunately, there was nothing here to suggest that would have been likely to work. There had been no expression of regret on the part of the Claimant, nor recognition that he had done any wrong. On the contrary, the Claimant strongly defended his position, criticised that of the Respondent and many of those with whom he had dealt. The Claimant demonstrated no insight and gave the Respondent no reason to suppose he would not behave in the future as he had in the past, indeed his indication was that he would proceed in the same way if faced by similar circumstances. No health or neurodiversity reason was advanced to explain what he had done. Even if it had been, a disability arising cause for unacceptable workplace behaviour does not mean it must simply be tolerated. The Claimant's confrontational stance provided no basis for managing him in a way that would avoid more conduct of the sort for which he was being disciplined. Nor did there appear to be any scope to repair the damaged employment relationship. As set out earlier in this decision, the Claimant's idea of mediation in substance amounted to the Respondent's capitulation, and acceptance that it had been in the wrong and he in the right. Our conclusion, sadly, is there was no lesser measure than dismissal that would have achieved the Respondent's legitimate aim. Reasonable adjustments [10.1] Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?

[517]For the reasons set out above, the Respondent could reasonably be expected to know the Claimant was a disabled person by reason of depression and ASD from 11 June 2018.

[518]We will consider each of the PCPs in turn. [10.2.1] The practice of not allowing the Claimant to be supported by an individual not employed by the University during, disciplinary, representation or appeal hearings

[519]The Respondent did not have the alleged PCP. The Respondent's policy and practice, which amounted to a PCP, was that employees could be accompanied by either a work colleague or trade union representative. In the event of someone from the union providing accompaniment, that person would not need to be an employee.

[520]Separately, whilst he did not make such a request, it is likely the Respondent would have been accommodating if the Claimant had asked to be accompanied by a friend or family member who was not a lawyer. The Respondent would not, however, allow employees to be legally represented in its internal disciplinary proceedings.

[521]In setting out the alleged disadvantage at [10.3.1] the Claimant appears to reformulate the PCP as not being allowed to be accompanied by a trusted individual. The Respondent did not have such a PCP. The Claimant could have a trusted colleague or trade union representative.

[522]Further and separately, there was no evidence to suggest the Claimant was at a comparative disadvantage by reason of the Respondent's actual PCP. The Claimant is an intelligent and articulate person, who was well able to set out his position and he did so in the clearest terms. Whilst the Claimant may, as a result of his depression and ASD, have a preference for written communication, we can discern little difference between the way he set out his position in writing and at those meetings he did attend. Importantly, even if the Claimant had been allowed to bring his solicitor, that person would not have been entitled to answer questions on his behalf. And as far as arguing for the alleged merits of the Claimant’s many grievances and the way in which they had been presented, there is no reason to suppose a solicitor would have been better placed to do this than the Claimant himself.

[523]At [10.3.1] the Claimant says he was at a disadvantage by reason of having to present his grievances and answer unforeseen questions orally. To the extent there could be such a disadvantage, it would not be because of the PCP at [10.2.1], it would be because the disciplinary hearing was conducted orally, which is an entirely different matter. Whilst it is not the PCP for his claim, there is no evidence to show the Claimant was at a comparative disadvantage by reason of an oral hearing. The Claimant explained and advanced his position with clarity and vigour, both in writing and orally when he attended meetings. The notion that a written process would have served him better is without merit. It would have increased the amount of correspondence going back and forth. There is, however, no reasonable prospect of this having any material effect on the outcome. The Claimant's dismissal was not because his position on the grievances and / or Mr Farmer’s instruction and / or who was responsible for the breakdown in trust and confidence was not better articulated.

[524]At the Tribunal, the Claimant suggested his ASD symptoms meant that he could not read the room and that his solicitor would have been able to do this for him. We begin by observing that a work colleague or trade union representative, being familiar with this employer, would almost certainly be better equipped to read the room than a lawyer coming in to the Respondent for the first time. We are not, however, satisfied there was any particular need for room reading. In the ordinary course of an employment relationship, an inability to read or understand the emotional reaction of colleagues might put a person at a disadvantage. A deficit in social reciprocation might tend to impair the development or maintenance of good interpersonal relationships. This is not, however, likely to be a significant factor in the formal setting of disciplinary proceedings. There was no need to read the room. There was instead a need to read and respond to the disciplinary case, contesting, admitting or mitigating as the Claimant wished to. Realistically, the only way the Claimant was likely to have secured a better outcome in the disciplinary process was if he had been able to recognise and admit that his behaviour had been inappropriate and undertake not to continue in the same way. This is not something that legal representation during the disciplinary hearing would have been able to help with.

[525]The Claimant's other proposition was that he did not understand the scope of the representations hearing, in particular that it included an opportunity to advance mitigation. The suggestion being that a solicitor would have helped with this. We do not agree. Mr Marshall explained his approach at the outset. The lack of mitigation from the Claimant had nothing whatsoever to do with him not being accompanied by a lawyer, rather it was because he thought that he was in the right and the Respondent wrong. The Claimant had the benefit of legal advice over a considerable period of time, overlapping with the disciplinary process and appeal. There was ample opportunity for the Claimant to be advised about the potential for a lesser sanction if he were to make concessions and / or apologise and / or offer not to continue in the future as he had in the past. [10.2.2] The practice of providing notices of disciplinary hearings days before they are due to take place

[526]There was no such PCP. Notice was sent to the Claimant in good time and this was the Respondent's practice. The fact of the Claimant not reading that notice when it was sent was his failure rather than any part of the Respondent's practice.

[527]The alleged disadvantage [10.3.2] appears to be based on a different PCP, one of providing broken links to the management case 29 minutes before the start of a disciplinary hearing. The Respondent had no such PCP. The link was sent in good time. The Claimant failed to attempt to access it until the hearing was about to begin. If there was any technical problem, it was no part of the Respondent's usual approach. A faulty link could have easily been resolved if the Claimant had not been ignoring the relevant email correspondence. [10.2.3] The practice of sending out only a single written invite to a disciplinary meeting

[528]The Respondent did have this PCP.

[529]There is no evidence to support a conclusion that the Claimant was put at a disadvantage by reason of this PCP, in comparison with persons who do not have depression and ASD. Our finding is that the Claimant chose to ignore correspondence sent to him about the disciplinary process. This obstructive behaviour is likely to have been influenced by his depression and ASD. It follows that others sharing his disability might do the same. The number of notices sent would not, however, result in a comparative disadvantage. If the Claimant or others chose to ignore correspondence about disciplinary proceedings to which they took exception, the number of notices sent would make no difference. Sending two or three would simply result in more items of correspondence being ignored.

[530]Further and separately, even if there had been a disadvantage arising from this PCP, the Respondent did not know and could not reasonably have been expected to know of that. Knowledge of disability and knowing of the difficulty caused by a particular PCP are not one and the same thing. Even with deemed knowledge of the Claimant's depression and ASD, there would have been no reason for the Respondent to know the Claimant was, as a result of this, ignoring correspondence. The Claimant did not admit to behaving in this way. Indeed he maintained a denial up to an including his evidence at the Tribunal. He did not say anything to Mrs Lambert, Mrs Oguzie or anyone else at the time, to suggest that he was ignoring their correspondence. Nor was there anything else that ought to have alerted the Respondent to this. On the contrary, the Claimant’s past behaviour would tend to suggest the opposite was true. He was a quick, frequent and combative email correspondent. He also demonstrated a tendency to attend and participate in some processes, but not others. That was of course a matter for him, but none of this would tend to put the Respondent on notice that he might be leaving correspondence unread. The first indication to this effect came too late, being at the appeal hearing, when Mrs Ryan understood him to say and the notes taken contemporaneously recorded, he was angry at Mrs Walden and had stopped reading emails from HR. Even then, he subsequently sought to remove that entry from the notes. [10.2.4] The practice of discussing concerns in person

[531]The Respondent had no practice of only discussing concerns in person. The Respondent's practice was for such discussions to take place in-person, in writing or both, as appropriate.

[532]There is no evidence to suggest the Claimant was put at a disadvantage by the PCP the Respondent had for the discussion of concerns, in comparison with persons not sharing his disability of depression and ASD. The Respondent was willing to discuss employees’ concerns in writing and did so at great length with the Claimant. Unfortunately, those written discussions did not resolve their differences here. Having failed to achieve a resolution through correspondence, Mr Farmer invited the Claimant to a meeting, in the hope that speaking face to face might better provide bridge the apparent gulf between them. The Claimant chose not to attend. He was not, however, put at a disadvantage merely by being asked to meet.

[533]The Claimant's case on this was somewhat difficult to understand. He argued the point as though the Respondent had only been willing to discuss matters in person and he was at a disadvantage because his ASD meant he was less able to respond and explain himself orally. His preference was, therefore, for written communication. The difficulty with this argument is that it ignores the facts. The Respondent was willing to and did discuss the Claimant's concerns with him in writing, at great length, both before and after Mr Farmer’s invitation to a meeting. An in-person discussion was proposed in addition to the correspondence going back and forth, which had been unproductive. Proposing an in-person meeting was reasonable in such circumstances. That the Claimant did not want to take advantage of a proposed benefit – an in person meeting – does not equate to him being put at a disadvantage.

[534]In the list of issues, the Claimant appears to set out two disadvantages arising from this PCP, [10.3.4] and [10.3.5]. Although, for the reasons set out above, we are not persuaded of the comparative disadvantage contended for at [10.3.5], this does appear at least to potentially fit with PCP [10.2.4]. The same cannot be said of the alleged disadvantage at [10.3.4], which appears to be based on a different alleged PCP, namely requiring attendance on campus for disciplinary hearings. The Respondent had no such PCP. The Claimant could attend on campus or remotely by Teams, as he preferred. This was the Respondent's practice. [10.2.5] The practice of utilising occupational health providers known to the Respondent

[535]The Respondent had a PCP of utilising an OH provider, Coventry City Council, with which it had a contract. It follows that provider was known. Individual advisers might or might not be known to the Respondent, dependent upon whether they had reported previously on one or more employees.

[536]There is no evidence to suggest the Claimant was at a disadvantage as a result of this PCP, in comparison with persons not sharing his disability of depression and ASD. The purpose of OH is to provide independent advice to employers with respect to the health of employees, their fitness for work and to recommend adjustments that may assist a return. No basis has been shown for a comparative disadvantage. If there was a time when OH providers advised solely or mainly on physical impairments, that has long since passed. Providing advice to employers in connection with employees who have mental health or neurodiversity issues is now a core part of this professional field. The Claimant's factual case was that the Respondent had an arrangement to secure skewed advice, falsely saying he could come back to work. We found that was not true. Even if it had been, no comparative disadvantage would arise. An OH adviser willing, in bad faith, to say that unfit employees should return to work, would disadvantage all ill employees, irrespective of disability or their particular health problems.

[537]None of the matters said to comprise the disadvantage at [10.3.6] follow from the Respondent having a PCP of using a contracted OH provider. The alleged lack of consent was a dispute between the Claimant and the individual assessor. The suggestion the report was inaccurate or incomplete is merely the Claimant's opinion. It is not the function of an assessor simply to act as a conduit for the Claimant's views, the Respondent was seeking an independent opinion. The use to which the Respondent sought to put the report does not stem from the identity of its provider. The Claimant has misinterpreted the reference to getting what was paid for. Even if these alleged disadvantages (OH reports without consent, released to employer without employer’s knowledge, using reports to require employees to attend meetings when they are not well enough, or securing predetermined advice) were reverse engineered into new alleged PCPs, the simple answer would be that the Respondent had no such PCPs. Further and separately, even if these matters were established, such PCPs would equally disadvantage the disabled and non-disabled alike.

[538]Whilst it was not the Claimant's case, we have considered a further argument. Namely that the Claimant was at a comparative disadvantage because his depression and ASD made him likely to object to an OH report that expressed an opinion he did not agree with and / or be suspicious that such an opinion had been given in bad faith and / or obstructive to a further assessment save unless he could appoint the assessor. Such disadvantages might be made out. In such circumstances, however, we could not say it was a reasonable step for the Respondent to have to take, to provide him with funds for an OH adviser of his choosing. This would be unreasonable because it would be to indulge unjustified allegations of conspiracy and deny the Respondent the right to choose its own source of independent OH advice. 539. [10.2.6] The practice of providing headline allegations without particulars within a disciplinary invite letter

[540]The Respondent had this PCP. It did not, however, put the Claimant at a disadvantage compared with others not sharing his disability. It is understandable that any employee, irrespective of disability, would wish to know the detail of the case they have to meet sooner rather than later. The Respondent's policy provided for this 3 working days before a disciplinary hearing. This allowed sufficient time for the Claimant to consider the case he had to meet and what he would say in response to it. The difficulty the Claimant faced here was not caused by the disciplinary policy timescale, rather it was his failure to access the material when it was sent. Steps

[541]We have commented already on the step of providing the Claimant funds to appoint his own OH advisor, which might arise from a disadvantage that was not contended for by the Claimant, and explained why this would not be reasonable for the Respondent to have to take. Aside from this and with reference to the PCPs actually alleged by the Claimant (or those which appeared to be implied by the disadvantage he alleged) no duty to make adjustments arose.

[542]We note the Respondent had in any event taken some of the steps contended for. Mr Farmer did attempt to deal with the Claimant's health and safety concerns in writing. Ms Walden and others did attempt to answer the Claimant's questions. She did not use his grievances as a “pretext” for disciplinary proceedings. Management and HR did seek to work positively with the Claimant, going to great lengths to reassure and accommodate him. Mediation was explored but the Claimant's expectations meant this was not viable. The Claimant was provided with the management case in good time. The Claimant was given the option to attend the disciplinary by Teams in good time. Other measures may have been taken if the Claimant had asked or given his employer reason to understand there was a need. Harassment

[543]We will consider each allegation of unwanted conduct in turn. [11.1.1] Patricia Ashman (the Claimant’s line manager at the time) had at various times during the period 2016-2018 told the Claimant he was “not able to handle the workload” and was “lucky” the Respondent had “allowed” him to reduce his hours

[544]The alleged unwanted conduct was not done. We do not find that Mrs Ashman said these things. The premise advanced for this by the Claimant was her supposed wish to work part-time and jealousy because he had obtained this. None of this was true. Mrs Ashman did not want to work part-time and was not jealous of the Claimant. On the contrary, she believed the Respondent had been very flexible in accommodating her. During the hearing, faced with Mrs Ashman’s evidence, the Claimant appeared to change his position, suggesting a different negative motivation, namely that she was full-time and overworked, as a result of which she had little sympathy for his complaints of having too much work as a part-time worker. We accepted Mrs Ashman’s evidence. She did not say these things at all and the Claimant's suggestion did not reflect her feelings or belief at the time. Part-time working was commonplace within the Respondent. The Claimant was not “lucky” to be working part time. The evidence before us demonstrated that he moved to part-time working with considerable ease, his request was quickly accommodated. [11.1.2] Patricia Ashman and other managers gradually increased the Claimant’s workload during the period 2016-2018 so that he had to work 3 days a week

[545]The alleged unfavourable treatment was not shown. Whilst the Claimant had a subjective opinion to that effect, we were referred to no data or objective evidence in this regard. The Claimant’s belief that his workload was appropriate to 3 days a week rather than 2 does not establish that was so. There was nothing in the documents we were referred to showing extra work being allocated, such as an increase in the number of lectures or lab sessions he was required to deliver during this period. The volume of the Claimant's workload is of course a separate consideration from the content. To the extent that the Claimant was required to do more teaching and less research than he wished, that does not establish an increased workload. The Claimant's workload and that of his colleagues was based on an annual allocation of hours. There would, however, be peaks and troughs during the year, when there would be more or less work to do. The Claimant's workload was not increased.

[546]Further and separately, there was no evidence to support the allocation of the Claimant's workload as being related to his disability. It was not allocated because of this disability and the fact of this is not inherently or otherwise connected to depression and ASD. The Claimant's suggestion that his workload impacted on his disability does not make the necessary connection. Whilst the context for unwanted context may be important in determining whether it is related to disability, consequence alone will not suffice. [11.1.3] On 1 October 2020, Wendy Garner directly threatened the Claimant by saying words to the effect of ‘if you refuse to do face-to-face teaching, that

[547]The Claimant had a class that afternoon. He asked Mrs Garner what would happen if he refused to teach the students face-to-face. As a result of circumstances relating to another employee, Mrs Garner had spoken to the People Team about this issue and been told that such a refusal could be a disciplinary matter, but it would depend on the circumstances, including the employee’s health. Mrs Garner said to the Claimant “refusing to teach a class face-to-face could amount to a disciplinary matter, although we would not want it to get to that point.”

[548]Our impression is that the Claimant had a tendency to think about matters in absolute terms. This can lead to him oversimplifying a nuanced message. On this occasion, the Claimant was in a heightened emotional state because of the recent coughing incident. He and Mrs Garner were also approaching the matter from different perspectives. The Claimant believed he was being told to do something that was inherently unsafe and wrong. Mrs Ashman believed the risks from Covid were being appropriately managed and mitigated by the measures the Respondent had put in place. We do not agree with the Claimant's characterisation that Mrs Ashman threatened him.

[549]In terms of what was said this was unwanted conduct, as the Claimant wanted to be excused from teaching students face to face.

[550]The conduct was not related to disability. Mrs Ashman did not say this because of the Claimant's disability. Nor was the information inherently related to disability. The Claimant said nothing at the time which suggested a link. Mrs Garner referred to the normal consequences of refusing to follow a reasonable management instruction. The mere fact of the Claimant being disabled or the possibility that management advice with which he disagreed might aggravate his mental health is not enough. Were the position otherwise, then any unwelcome workplace event experienced by a disabled person with a mental impairment might amount to harassment. This is not what is envisaged by section 26.

[551]Further and separately, whilst this conduct did, subjectively, cause the proscribed effect, it was not reasonable for it to do so. Mrs Garner was responding to a question asked by the Claimant, giving anodyne management advice. Notwithstanding the Claimant's dissatisfaction, the Respondent had plainly gone to great lengths to manage the risks caused by Covid. This included implementing the relevant government guidance issued to educational institutions. The fact of the Claimant having a subjective belief that such guidance was insufficient and / or the local implementation less than perfect (e.g. some students not complying), did not make it reasonable to believe the Respondent's requirement of him to carry out his duties caused an intimidating, hostile, degrading, humiliating or offensive environment . [11.1.4] On 8 October 2020, after having earlier that day rebuked the Claimant for sending evidence of Health and Safety breaches, Raymond Farmer (Dean of the Faculty) attempted to force the Claimant into a meeting “to discuss [the Claimant’s] concerns” with 15 minutes notice. Subsequent disclosures indicate that Raymond Farmer was told “[the Claimant] needs to confirm that he has deleted [the photographs]”

[552]The Claimant was not rebuked. He was politely instructed not to use his personal email for University business and not to take photos of students without their permission. Mr Farmer then invited him to a meeting to discuss his concerns. To that extent only was the alleged unwanted conduct done.

[553]Separately, Mr Farmer’s conduct was not related to disability. Mr Farmer wrote as he did that day because he believed the Claimant was acting in breach of the University’s rules and GDPR. Having failed by way of email correspondence either to reassure the Claimant or persuade him to follow the instructions given, Mr Farmer invited him to a meeting in the hope that a face to face discussion might be more productive. As the Claimant would not be at work for several days, Mr Farmer sought to meet with him that afternoon. Mr Farmer did not proceed in this way because of the Claimant's depression or ASD and nor was there anything in that conduct which was otherwise connected with disability.

[554]Furthermore, it was not reasonable for Mr Farmer’s conduct to have the proscribed effect. The Claimant had expressed his concerns. Mr Farmer sought to address these, along with advising the Claimant about taking photos and personal email use. Mr Farmer hoped that having a discussion about the issues face to face would better enable him to provide reassurance and persuade the Claimant to do as he had been asked. Given the Claimant would not be at work for another 6 days, it made good sense to try and speak with him that afternoon. This was not a disciplinary meeting. The Claimant's sense of grievance is unjustified. It certainly would not be reasonable for Mr Farmer’s conduct to cause an intimidating, hostile, degrading, humiliating or offensive environment . [11.1.5] Gemma Bailey (HR) failed to accommodate the Claimant’s reasonable request via e-mail on 16 September 2021 to put questions intended for the meeting on 16 September 2021 concerning Grievance 4 to him in writing

[555]Prior to 16 September 2021, the Respondent had made several unsuccessful attempts to secure the Claimant's attendance at a grievance meeting. Ms Bailey advised that the grievance could be considered in his absence and Dr Williamson proceeded in that way. The Claimant had suggested questions in writing. None were asked. To that extent, the unwanted conduct was done.

[556]The conduct was not related to disability. A decision to proceed in this way was not made because of the Claimant’s ASD or depression and nor was the conduct itself otherwise connected with disability. Ms Bailey believed that in light of the Respondent's attempts to meet with the Claimant, the rules allowed for a determination in his absence. Dr Williamson did not consider it was necessary to ask him any questions in writing. This was not done because of and had nothing whatsoever to do with the Claimant's disability. Nor, separately from what was or was not in the mind of Ms Bailey or Dr Williamson, does the fact of not asking questions have a connection with disability. It is not enough for the Claimant to say this decision affected or aggravated his mental health.

[557]Further and separately, it was not reasonable for the conduct to have the proscribed effect.

[558]After having tried and failed to meet with the Claimant, Ms Bailey advised Dr Williamson could proceed in his absence. Notably, when the Claimant wrote on the day of the latest rescheduled hearing, he did not advance a health reason for his further non-attendance, rather he accused HR of “playing silly mind games”. Whilst the Claimant suggested questions in writing, he did not undertake to respond at that time, saying merely that he would do his best when he felt up to it. The Claimant can, reasonably, have little complaint about the decision to carry on.

[559]In her email of 22 September 2021, Ms Bailey said the Respondent would contact the Claimant in writing if that was necessary. This would tend to convey he might be asked for further information if it were required. We note Dr Williamson’s outcome letter included some uncertainty about which aspects of the work environment the Claimant said were unsafe. This is something the Claimant could have been asked about in witing. Whilst it may have been better for the sake of completeness if Dr Williamson had taken this step, its omission, without more could not, reasonably, cause the proscribed effect. The core complaint in grievance 4 was the disputed interaction between the Claimant and Mrs Garner, a resolution of which did not depend on the Claimant's views of workplace safety. The Claimant had and took advantage of many other opportunities to express, at length, his strong views on this subject. As is clearly explained in the case law, “intimidating, hostile, degrading, humiliating or offensive environment” are strong words and we should not find them satisfied too easily. It would not be reasonable to find they were here. [11.1.6] Mike Larter (People Adviser – HR) insisted on an occupational health assessor of the Respondent’s own choosing on or around 29th January 2022;

[560]This was done and it was unwanted conduct by the Claimant.

[561]This conduct was unrelated to disability. Mr Larter did not adopt this position because of the Claimant's disability. Mr Larter believed that a health practitioner chosen by the Claimant would lack independence. The Respondent had an existing agreement with an OH provider. It was, however, willing to go beyond its usual practice and appoint an appropriate professional outside of this, complying with its procurement process. Mr Larter’s decision had nothing whatsoever to do with disability. Separately from Mr Larter’s mental processes, the conduct itself had no inherent or other connection with disability. Their email exchange did not concern the symptoms or manifestations of the Claimant's disability. Mr Larter was merely dealing with the administrative or practical steps necessary to arrange an OH assessment.

[562]Further and separately, it would not be reasonable for this conduct to cause the proscribed effect. The Respondent sought to obtain a new report from an independent OH adviser. For like reasons as set out in connection with his reasonable adjustments claim, it would not be a reasonable step for the Respondent to have to provide the Claimant with funds to make his own appointment. The Respondent had existing arrangements in this regard but was willing to go outside of this, provided it did so compliant with procurement procedures. It could, however, reasonably, doubt the independence of someone selected by the Claimant. Notably, the Claimant's dispute as to the factual content of the original OH report was of little materiality. His efforts to replace the adviser’s opinion with his own would, however, tend to defeat the object of seeking professional advice. The Claimant managed to press that earlier adviser into withdrawing her report entirely, by resort to threats of a professional misconduct complaint. With respect to this as many other matters, the Claimant struggled with opinions where they differed from his own. The Claimant had made unjustified allegations of conspiracy and the Respondent was not obliged to indulge them. Moreover, the Respondent was entitled to choose its own professional advice. [11.1.7] Louise Walden and/or Joanne Oguzie proceeded to commence disciplinary proceedings on 10 November 2021 without completing the Claimant’s second occupational health assessment

[563]Insofar as the disciplinary hearing proceeded without the Respondent having agreed to fund the Claimant in appointing his own OH advisor, this was done. It was unwanted by the Claimant, in the sense that he wished for the opposite.

[564]This conduct was unrelated to the Claimant's disability. The Respondent sought to arrange a further OH assessment and in the circumstances previously referred to, the Claimant refused to cooperate. An impasse having been reached, a decision was made to proceed without a further OH report. The decision was not made because of the Claimant's depression and ASD. Nor was there anything inherent or otherwise in the decision to connect this with disability. The fact it concerned a health assessment is not enough. This was a practical decision taken in circumstances where it had become apparent there was no prospect of the Claimant cooperating in the further assessment proposed.

[565]Further and separately, it would not be reasonable for this conduct to cause the proscribed effect. The Respondent attempted to arrange a further OH assessment. The Claimant was uncooperative and an impasse reached. It was reasonable for the Respondent to proceed with disciplinary proceedings in the circumstances. Victimisation

[566]The Claimant relies on the following matter as being the protected act for his victimisation claim. [12.1.1] In February 2021, raise a grievance in which he said that the Respondent had unlawfully obtained an OH report without his consent (Grievance 1)

[567]In his first grievance the Claimant complained that a copy of the original OH report was provided to his employer, in circumstances where he had neither received a copy first nor given his consent. He said that when raising this with HR, he was brushed off. The Claimant also asserted that the OH report misrepresented the discussion which had taken place and was inaccurate, causing him stress and anxiety.

[568]The Claimant did not say anything within this grievance about being disabled, discrimination or allude to an infringement of his Equality Act rights. This grievance did not involve the Claimant bringing proceedings, making an allegation or doing anything else falling within EqA section 27(2). If anything and although not mentioned expressly, the grievance would appear to be or include a complaint that the Respondent had breached the Access to Medical Reports Act 1998.

[569]Further and separately, we will consider each of the alleged detriments in turn. [12.2.1] Gemma Bailey (HR) failed to accommodate the Claimant’s reasonable request via e-mail on 16 September 2021 to put questions intended for the meeting on 16 September 2021 concerning Grievance 4 to him in writing

[570]The Claimant withdrew this claim. [12.2.2] Mike Larter (People Adviser – HR) insisted on an occupational health assessor of the Respondent’s own choosing on or around 29th January

[571]Whilst this was done, it was not a detriment. For the reasons set out previously, it was a proper approach for the Respondent to follow and the Claimant's sense of grievance unjustified.

[572]Further and separately, the Claimant has failed to discharge the initial burden. The evidence to which we were referred did not support a finding that Mr Larter decided on this approach because of the Claimant's first grievance or any belief he may do a protected act. The Respondent choosing its own OH advisor was consistent with policy and previous practice. It is the usual approach of employers generally.

[573]In any event, we accepted the Respondent’s non-victimising explanation. Mr Larter proceeded in this way for the reasons set out in connection with the Claimant's harassment claim. This had nothing whatsoever to do with the alleged protected act or any belief the Claimant may do such an act. [12.2.3] Louise Walden and/or Joanne Oguzie commenced disciplinary proceedings on 10 November 2021

[574]This alleged detriment was done.

[575]The Claimant has failed to discharge the initial burden. The evidence to which we were referred would not allow a finding that disciplinary proceedings were commenced because of the Claimant’s first grievance or any belief that he may do a protected act. The Claimant's first grievance was the least objectionable and in part-upheld. The decision to commence proceedings was only made after many more grievances, which involved repetitive complaints and unsubstantiated attacks on individuals. There was also much conduct suggestive of a breakdown in trust and confidence, along with declarations to that effect by the Claimant.

[576]In any event, we accepted the Respondent’s non-victimising explanation. The Respondent (Mrs Walden, jointly with Ms Reeves and Ms Hoppitt) made the decision to commence proceedings because they believed there was a disciplinary case to answer and the employment relationship had broken down. This had nothing whatsoever to do with the alleged protected act or any belief the Claimant may do such an act. [12.2.4] Louise Walden and/or Joanne Oguzie proceeded to commence disciplinary proceedings on 10 November 2021 without completing the Claimant’s second occupational health assessment

[577]This was done. For the reasons set out previously, namely the Claimant's refusal to cooperate with the OH referral proposed by the Respondent and an impasse having been reached, it was reasonable for the Respondent to proceed without a further OH report. The Claimant's sense of grievance in this regard was unjustified.

[578]Further and separately, the Claimant has failed to discharge the initial burden. The evidence to which we were referred would not support a conclusion that the Respondent's approach was because of the Claimant's first grievance or any belief that he may do a protected act. The only plausible explanation would appear to emerge from the circumstances to which we have already referred, obstruction and impasse.

[579]In any event, we accepted the Respondent's non-victimising explanation. Disciplinary proceedings commenced without a further OH referral because the Claimant refused to cooperate and an impasse had been reached. This had nothing whatsoever to do with the alleged protected act or any belief the Claimant may do such an act. [12.2.5] Dismiss the Claimant

[580]This detriment was done.

[581]The Claimant has failed to discharge the initial burden. We repeat the reasons set out above at [12.2.3] for the burden not shifting. By this point the Respondent had also identified the Claimant's failure to abide by Mr Farmer’s instructions as an act of potential gross misconduct.

[582]Further and separately, we accepted the Respondent's non-victimising explanation. The reasons for the Claimant's dismissal are accurately reflected in Mr Marshall’s letter informing him of that decision. They did not include to any extent whatsoever, his first grievance or a belief he may do a protected act. Part-time worker regulations

[583]This part of the claim included two complaints. We will address each in turn. [13.1.1] Barry Johnson (Research Grants administrator) and Michael Fitzpatrick (Dean of the Faculty) refused to process the Claimant’s application for a prestigious research grant in 2018

[584]The Claimant withdrew this claim. 585. 13.1.2. Refused the Claimant permission to work overseas in 2018/2019;

[586]This detriment was done. 587. 13.2. Was that less favourable treatment than the Respondent treats comparable full-time workers? The Respondent will know of many comparators through its own HR records, but the Claimant knows of Dr J Griffin and Dr S Kanarchos as comparators who worked overseas for extended periods while employed by Coventry University, and Prof D Walton who was awarded an EPSRC Overseas Travel Grant. Where no direct comparator exists, the Claimant relies upon a hypothetical full-time comparator.

[588]There is no evidence to support a finding that this amounted to less favourable treatment. We have some evidence about two of those named here and little or none about the other. The circumstances of the two we know of were very different, they are not valid comparators for this purpose. As to the third, we can make no findings. The evidence does not support a conclusion that a full-time comparator – an academic who put together a weak research proposal and simultaneously applied for a career break, which was granted – would have been treated differently from the Claimant. 13.3. Was it done on the ground that the Claimant is part-time?

[589]The decision had nothing whatsoever to do with the Claimant working part-time.

[590]The Claimant's research proposal was not put forward to the funder in the first instance because it was believed to be weak and then not taken further once his career break was granted. Limitation

[591]None of the Claimant's claims appearing to be well-founded, the jurisdictional question with respect to time does not arise. Approved by: EJ Maxwell Date: 22 June 2026