Mr F Manshausen v IMI Precision Engineering Ltd: 1310744/2022

EMPLOYMENT TRIBUNALS
Case No 1310744/2022
Between
Mr F ManshausenClaimantIMI Precision Engineering LtdRespondent
Before
Employment Judge PerryMr A MacMillan (instructed by counsel) for claimantMs C McCann (instructed by counsel) for respondentDate 12 September 2024

JUDGMENT

[1]The claimant’s failure to make reasonable adjustments and unlawful deductions from wages (holiday pay) complaints in their entirety, and his complaints of direct discrimination (revised issue number 2, 5 and 6(vii) to (x) inclusive), discrimination because of something arising from disability (revised issue number 2, 5, 6(vii) to (x) inclusive and 7) and victimisation (revised issue number 4 and 6(vii) to (x) inclusive) are dismissed on withdrawal.[2]The claimant’s unfair dismissal complaint is well founded. His dismissal was unfair.[3]The claimant was victimised contrary to Part 5 Equality Act 2010 in relation to revised issue numbers 10, 14 and 18 only.[4]The claimant’s remaining victimisation complaints and his complaints that he was directly discriminated against and discriminated against because of something arising from disability fail and are dismissed.[1]A case management discussion (CVP audio only) to address remedy shall be listed before Judge Perry time estimate 2 hours.[2]Within 28 days of receipt of this judgment reasons and order, the claimant shall forward to the respondent in word format a completed agenda, draft time estimate and trial timetable for a remedy hearing, draft list of issues and draft case management orders.[3]Within a further 28 days the respondent shall provide a revised version of the documents referred to in paragraph 2 of this Order with its own proposals endorsed in marked up (tracked changed) format. - 1 -

REASONS

The reasons below, are provided in accordance with Rule 62 and in particular Rule 62(5) which provides: In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how the law has been applied to those findings in order to decide the issues. References below in circular brackets are to the first paragraph (if more than one) of these reasons to which the cross reference refers. Those cross references are provided for the assistance of the reader. The reader is asked to note that sometimes the transposition software used by HMCTS may mean that the cross references are not properly transposed and/or an error generated. References in square brackets are to the page of the bundle in the form [hard copy/e-bundle], or where preceded by a document reference or the initials of a witness, that document or witness statement.

Introduction

[1]This claim was made on 15 December 2022 following early conciliation between 28 September 2022 and 9 November 2022 (11 days). Any complaint that therefore predates 5 September 2022 is potentially out of time.[2]We will refer to the parties as Mr Manshausen and “IMI”. We will refer to IMI’s parent company as “IMI Group”.[3]Mr Manshausen was employed as IMI’s (Divisional) Chief Information Officer from 1 February 2018 until 14 September 2022 when he was dismissed with immediate effect with a payment in lieu of notice.[4]IMI describes itself as a producer of “… valves, switches and other components used in commercial vehicle, motion control and fluid technology applications. The Respondent is part of the global IMI Group. The Respondent employs 67 individuals from their site in Birmingham. The Respondent employs 463 people overall in the UK across 5 sites.”[5]In summary the claim relates to Mr Manshausen’s complaints about his alleged detrimental treatment by IMI whilst off sick having cancer treatment, the continuation/increase of that detrimental treatment during his phased return, following him recommencing work full time and following a number of protected acts. He complains that the subsequent redundancy process leading to his dismissal was a sham.[6]The issues were identified at a case management hearing held on 2 August 2023 (the CMO) [48/64]. Whilst there was considerable overlap with regards to the acts of detriment (and at the outset the provisions, criterions or practices relied upon) the various complaints were not argued as relying on the same acts/detriments for each. For instance, on the initial count 12 acts of less favourable treatment, 13 acts of unfavourable treatment and 9 acts of victimisation detriment were argued. We thus asked counsel to rationalise and agree, if possible, a narrowed list of issues. That was not only done but also repeatedly updated to identify heads of complaint withdrawn as the hearing progressed.[7]A new numbering system was adopted aggregating complaints to incidents. Save with regards to the protected acts (for which we have retained the original roman numbering from the CMO) we have adopted the new numbering below. We are extremely grateful for the assistance of counsel in that regard.[8]Following the withdrawal of a number of complaints namely, indirect discrimination, failure to make reasonable adjustments, holiday pay and a number of acts of detriment, the claim now comprises the following complaints: 8.1. direct disability discrimination - 2 - 8.2. discrimination because of something arising from disability 8.3. victimisation and 8.4. unfair dismissal.[9]The issues that remain from the final version of the list of issues are set out in the chronology. The protected acts (PA) and timing points aside, they relate to issues 2, 3, 4, 6, 10, 11, 14 & 18.[12]Mr Manshausen’s disability, cancer, was conceded as a disability within the meaning of s.6 Equality Act 2010 (EqA) at all material times as was knowledge of disability from 9 June 2021 (that date was confirmed as corrected during the hearing).[13]Ten protected acts were alleged. IMI accepts they were protected acts (although a point is raised by Ms McCann in that regard (see (206))).[14]Three “somethings” are argued:- 14.1. Mr Manshausen was absent because of cancer treatment from 21 June 2021 to 12 January 2022 14.2. Mr Manshausen’s part absent from work during a phased return running from 12 January 2022 until to 30 April 2022 and 14.3. Mr Manshausen had to attend medical appointments on an ongoing basis.[15]A legitimate aim is argued for the discrimination because of something arising from disability complaint. Although it is argued slightly differently. No point was taken by Mr MacMillan on that:- “… The Respondent submits that the organisational and financial benefits arising from the removal of the CIO role were a legitimate aim and a proportionate means of achieving that aim and outweighed the alleged discriminatory effect of the Respondent’s actions on the Claimant.” (GOR/64 [45/61]) “The legitimate aim was the efficient and economic running of the Claimant’s department to provide a high level of service to both internal and external customers, and in particular to meet the objectives set as a result of the “Customer First” initiative.” (SGOR/6 [69/85])[16]IMI accepts Mr Manshausen was dismissed and advance a potentially fair reason of redundancy. Alternatively, it asserts if the circumstances giving rise to the dismissal of Mr Manshausen do not amount to redundancy, as defined, they amounted to a substantial reason of a kind such as to justify the dismissal of Mr Manshausen, namely, a business reorganisation carried out in the interests of economy and efficiency, and that the dismissal was, in any event, fair for some other substantial reason.[17]The claim was listed to address liability only (remedy was not provided for within the trial timetable [49/65]). That is for good reason if Mr Manshausen succeeds that would necessitate further directions given the nature losses claimed.

THE EVIDENCE

[18]We had before us a bundle in hard copy originally 971 pages and originally 1021 in electronic copy. A further page was added during the course of the hearing.[19]Issues concerning redaction and dating of documents were resolved between counsel and a revised index setting out agreed dates where events were undated was also provided. - 3 -[20]We heard from the following witnesses (Initials refer to how we will reference the witnesses in the flowing chronology):- 20.1. Mr Manshausen (C) 20.2. Mr Sukhjit Purewal (SP), Mr Manshausen’s line manager and IMI’s Divisional Finance and IT Director from 1 February 2021 20.3. Ms Charlotte Craner (CC), a Talent Resourcing and Development Manager (within IMI’s Human Resources function). At the time of the events that concern us in addition to her core duties she was providing HR business partner support to Mr Purewal (although at that time she reported to Mr Burden (see below)). 20.4. Mr Michael (Mike) Semens-Flanagan (MSF) chaired Mr Manshausen’s grievance appeal. At the time of the events that concern us he was Director of Global Engineering of IMI Critical Engineering. He is now President of Marine for IMI Group. 20.5. Richard Burden (RB) amongst other matters chaired Mr Manshausen’s appeal against dismissal. At the time of the events that concern us was Global Human Resources Director for IMI. He is now Chief People Officer of the Life Technologies Platform of IMI Group.[21]In addition, we were provided with a chronology and cast list by Mr Manshausen. They were not agreed by IMI. CHRONOLOGY[22]The background is set out in the following chronology. To limit this already long judgment we have limited these points and those in “Our Findings & Conclusions” below to the issues that remain. January 1974 C’s Date of Birth (exact date redacted due to publishing 2/18 of judgment on internet) 2018-2020 1 February 2018 C employed as Norgren European Logistics Company 115-121/123-137 Limited (this is now IMI) IT Director – Europe. He reported to the Finance Director - Europe. 1 September 2018 C appointed as IMI’s Chief Information Officer (CIO) reporting to the then CFO (Paul Ward) with a functional reporting line to Paul Rushton, IMI Group CIO. Offer letter 122/138 Contract dated 11 September 2018 123-137/139-153 announcement 141-142/157-158 9 September 2019 Announcement that Paul Ward had left the business 144/160 and with immediate effect Sally McKone had been appointed as Divisional Finance & IT Director of IMI Ms McKone reported directly to Massimo Grassi, Divisional Managing Director IMI (Precision Engineering). - 4 - She became C’s Line Manager 20 December 2019 The IMI Group CIO (Paul Rushton) left. 154/171 Martin Carroll appointed as of 1 January 2020 as IMI Group IT Security Director and Head of Head Office IT. Responsible for Group security, Group IT and business systems strategy. Martin Carroll reported to Daniel Shook, Group Finance Director. 3 September 2020 Announcement from Beth Ferreira, who by then was 164/181 IMI’s Managing Director “Sally McKone, Divisional Finance & IT Director, will be leaving IMI Precision Engineering to pursue a new opportunity outside of the company. Sally will continue to support us through the budgeting and year and process and will leave the Division in 2021. I would like to take this opportunity to thank Sally for her contribution to IMI over the past three years and wish her all the best with her new role.” 20 January 2021 It was announced Mr Purewal was to join IMI’s 184/201 Executive team as Divisional Finance and IT Director effective 1 February 2021 Mr Purewal had previously been Chief Financial Officer in IMI Critical Engineering and prior to that had worked for IMI Group since 2002. He became C’s Line Manager. On 28 July 2023 (after the events that concern us) he was appointed Chief Financial Officer for the IMI Life Technology platform. He now reports to Beth Ferreira, who is now CEO of Life Technology. Q1 & Q2 calendar IMI was reorganised and its “Customer First” SP/7 & 11-13 year 2021 programme was introduced resulting in the introduction of a “target operating model” setting out a management structure and roles within it February 21 C led R’s response to a major cyber security incident. 219/236 27 May 21 C told of cancer diagnosis FM/21 9 June 21 SP emailed RB & CC to let R know that C had been 223-224/240-241 diagnosed with cancer - 5 - 10 June 21 RB replies to SP asking if “shall we start the search for 223-224/240-241 an interim CIO” 225-226/242-243 SP replies to RB and cc’g CC “Yes. We will need an interim CIO. Someone with a fresh perspective will give good insight into IT. After Tuesday after we may know Frank‘s treatment plan and timing 3 little better, so can finalise the plan after that.” Fri 18 Jun 21 C’s title stated in organogram as “IT director” 241/258 Corrected to “CIO” on Wed 21 Jul 21 252/269 Mon 21 Jun 21 C’s absence commences 246/263 During C’s absence SP asserts he absorbed some of SP/16 his work and members of his team took on other tasks and that continued to some extent during his staged return to full-time duties. 11 January 2022 OH Assessment - Report dated 17 January 2022 310-312/327-329 C assessed as ‘fit with restrictions’ with a phased returnto-work approach “He is keen to rtw and I am supportive of this but we will need to manage this carefully and also balance this against his increased corona virus vulnerability. He will need to work from home for the next 8 weeks and whilst I would support an occasional visit to the site (is he needs to pick up his computer) this should be strictly controlled with minimal face to face interaction, strict social distancing and he must wear an FFP3 mask. We will need to slowly introduce him back into work and build up gradually over the coming weeks and he will need to control visiting the site due to corona virus vulnerability. I will reassess his corona virus risk in 3 weeks. I would start him off on 2 x 1/2 days working from home in week 1, he can then increase up to 3x1/2 days in week 2 and 3 and I would then recommend we reassess him at that time when we can see how he has coped with the fatigue/tiredness. I will then be able to recommend what further recovery plan is - 6 - required to get him back to normal hours of work.” 12 Jan 22 C started phased return to work. The phasing was due to run from January 2022 (two half days a week) to May 2022 (full time). 12 Jan 22 Issue [3]: Not implementing proposed structure for IT Department / Reduced the size of IT department during C’s absence & following his return (ss. 13, 15 & 27) (CMO Issues 4.2(iii)(1) & (6), 5.1(iii)(1) & (6) and 8.2(ii)(1) & (4)). 12 Jan 22 Issue [4]: SP created a loss of seniority and effective demotion by the informal removal of C’s direct reports (caused by SP meeting with them directly) (ss. 13 & 15) (CMO Issues 4.2(iii)(2) & 5.1(iii)(2)). C says that this was an ongoing state of affairs which continued after the first protected act. 13 & 14 Jan 22 Exchange of emails between Daniel Shook, IMI Group 308/325 CFO, and SP Fri 14 Jan 22 GP fit note “may be fit with adjustments” :- 316/333• phased return 10-30 Jan 2022• 2 half days week 1• 3 half days weeks 2 & 3• Review after week 3 Mon 7 Feb 22 OH assessment – fit to work with restrictions 324-326/341-343 Report dated 15 February 2022 “He remains fit to be work but this should be from home and I would recommend that he increase up to 4 times half days for this coming week and than five times half days thereafter at which time I should reassess him to see how he is progressing and to advise further on his return to Work. Working in the office should be kept to a minimum at this moment and strict protocols to protect him from coronavirus should be used If he does go into the office.” From 02.03.22 (ss.13 Issue [6]: MC, IM, SP excluded C from the following Pdet(ii) & 15) meetings (internal & external): (ss.13, 15 & 27) From 25.05.22 (s.27 (CMO Issues 4.2(iii)(3), 5.1(iii)(3) & 8.2(ii)(3)) only) - 7 - to 31.08.22 (all) i. Digital Factories meetings in London (with prospective vendors, Verizon & Dell ii. 1:1s between SP and C’s direct reports iii. Digital Factories (PwC) (3 meetings) iv. Digital Factories (McKinsey) (3 meetings) v. Digital Factories (Ernst & Young) vi. Digital Factories (Verizon) xi. Salesforce xii. WIPRO meeting Argued as background re: sham dismissal:- x. Korn Ferry (recruitment agency) 10 March 2022 OH assessment – fit to work with restrictions 333-335/353-355 Report dated 18 March 2022 “He is now undertaking five times half days working from home, but he continues with sleep disturbance at this time. He still has anxiety with regards his health condition and he details that he Is due a further review with his consultant in the next two weeks. He is due to go over to Germany for his appointment at the end of March and he will seek general support from the specialist team at that time to assist his health anxiety and rumination. I have spoken with this gentleman and would suggest that he increases his homeworking over the next six weeks - he can gradually increase hours up so that he is undertaking normal hours by the end of that period. I suggest I speak with him again in approximately five weeks and we will then be able to advise on his gradual introduction back into a hybrid model of working — it would be beneficial from coronavirus perspective if he were to have his booster dose of vaccination prior to this and this can be offered three months after his second dose. When he does get back to working in the office strict protocols to protect him from coronavirus should be used.” - 8 - Wed 31 Mar 21 1-2-1 between SP & C - C raised what he perceived as the devaluation of his role and its accelerated decline since his sick leave and return to work. April 2022 onwards Settlement Negotiations between C and IMI March – May 2022 Talent Pack Created/Amended 327-330/347-350 24 May 2022 Grievance onwards 24 May 2022 PA(i): C submitted Formal Grievance to R. Cover email 347/367 First Protected Act – C accepts that alleged detriments that predate this cannot constitute acts of victimisation Grievance 355-357/375-377 25 May 2022 OH assessment – fit to work with restrictions 383-385/403-405 Report dated 29 May 2022 “He has detailed that since our last meeting that there have been discussions over Issues he has with his role and the changing role since he took up this position. and I understand that this now has escalated to a grievance process that is currently ongoing. He describes that he currently has poor sleep. and he has anxiety with regards the work situation and the grievance process that is now in place. He feels that his poor sleep pattern has worsened and that his appetite has changed. He feels his mood is variable and he feels he gets more irritable. He is currently working from 8-4pm 5 days per week working on the standard hybrid work model. He went back to Germany in March 2022 and had a full check-up and investigations. and he also has had specific support with regards his anxiety and rumination. From a physical perspective this gentleman is progressing very well. but it is still important that when working in the office strict protocols to protect him from coronavirus are still implemented. 1 support him working his normal hours and undertaking the hybrid model of work.” Mon 16 May 22 Email exchange between CC and C following email to R 350/370 from C’s solicitor – C asked to contact CC if he felt he had a grievance – he replies saying amongst other - 9 - matters that he would be in touch with the detail. CC replies asking C to provide the detail of grievance 27 May 2022 IMI held Talent Review 1 June 2022 Grievance hearing chaired by Duncan Brown (DB) (then Head of Group Pensions – he has subsequently left the business) HR Representative: Mandip Sandhu C’s companion: Ian Morris Notes including C’s amendments signed off by C on 9 441,446-447, June 2022 410-411,413- 415/461,466- 467,430-431, 433-435 Exchange of correspondence relating to the notes 412,416-419/432, 436-439 PA(ii): Raising ‘an allegation of disability discrimination verbally in his grievance hearing 10 June 2022 C submitted Data Subject Access Request (DSAR) to Covering email RB 477/497 RB replies same day stating CC would deal with this on her return from leave 14 June 2022 Grievance investigation meeting DB & RB 440/460 14 June 2022 Grievance investigation meeting DB & MC 441/461 16 June 2022 Grievance investigation meeting DB & SP 446/466 Thu 23 Jun 22 CC replies to DSAR 476 (duplicates at “… we will not be responding to it. The reason 457-459,462- for this is we consider it to be manifestly 465)/496 (477- unfounded. We do not believe you have 479, 482-485) genuine data concern and we consider it clear you have no intention to exercise your right of access. We consider the reason for this request is to cause disruption and secure a payment of a sum of money from the Company in exchange for forgoing the request. Further, we consider the scope of your request is manifestly excessive given its obviously unreasonable scope.” SuppGoR/17(a) “… This was because of the 71/87 circumstances under which it was made and not because the Claimant had done one or more protected acts.” - 10 - Issue [10]: RB, on behalf of R, refused to comply with DSAR request made on 10.6.22 [Note: email sent by CC, on RB’s instruction] (s.27) (CMO Issue 8.2(i)). 27 June 2022 OH assessment 468-470/488-490 Report dated 4 July 2022 The assessment identified C was fit to work with restrictions. Having relayed that the initial grievance meeting had taken place on 1 June 2022 (after the last OH review) the OH advisor reported that amongst other matters C detailed “… that his anxiety has increased, and he has increased threat appraisal and emotional response at this time. … he is currently working normal hours, but he is lacking positivity and is becoming apprehensive. He states that he worries about everything including the pandemic and other world issues, work, the grievance and his health. He details that he is now developing abdominal discomfort. and this further exacerbates his health anxiety.” The OH advisor relayed at their last assessment C had been advised to contact his support team in Germany and to see the GP to assist with his sleep. That had not been done and so the advisor explained to C that “… he now needs to take control of the situation and he now must implement the recommendations that I believe will help with his anxiety at this time. He needs to get appropriate counselling, and this can either be via his GP, his support team in Germany or there may be some ability to access this through the company. It is also vital that he increases exercise as this is shown to be beneficial in improving anxiety.” A review was scheduled in three weeks and C advised to revert to 50% working that week. Mon 27 Jun 22 RB meeting with Korn Ferry (a recruitment agency R 952/1002 used for senior roles). RB accepts he spoke to them to see whether they would be able to source candidates for Frank’s role if the need arose Fri 1 Jul 22 Email from Korn Ferry referring to a meeting earlier in 466-467/486-487 the week - 11 - Fri 1 Jul 22 C responds to R re DSAR 475/495 5 July 2022 RB sends instruction to CC re reply to DSAR 471/491 18 July 2022 Following various emails from HR seeking updates on 479-482/499-502 the position DB sends draft Grievance Outcome and (identical to the final version save for date and C’s 482A-482C/503- address) to MS and CC (both HR) – seeking their 505 observations 22 July 2022 Meeting between RB/SP/Korn Ferry 08:30-08:55 22 July 2022 MS responds to DB stating the grievance outcome 496-497/519-520 looked fine to her and covered the main points of the grievance. MS also asks CC if DB was “okay to send this directly to [C] or would you wish to share a copy with [RB] initially (if you have not already done so that is)?” 27 July 2022 At 15:50 C emailed DB requesting he consider new 504-505/ facts which supported his grievance. At 15:53 DB 527-528 responded to C stating “let me consider this alongside the material I already have” At 15:54, DB emailed CC and MS stating “I was about to put my letter to Frank in the post; 509/532 I will with-hold it to avoid an impression of not taking his latest details into consideration. Let’s catch up.” Grievance outcome sent at 17:31 (1 hour and 41 Covering email minutes after C’s additional information was sent to DB). 510/533 In covering email DB states:- Outcome 519-521/ “Further to my earlier email, I have considered 542-544 things further and as I had already concluded my investigation and written my letter of findings, I think it is better that I share this with you now. As you have the right to appeal my findings, it seems to me better that any further information that you want to share should be dealt with as part of any such appeal.” C asserts [FM/79.4]:-• the outcome letter was broad-brush, failing to analyse how C’s role was devalued, how he had been excluded from external and internal meetings and how he had been bypassed in managing his team and line reports.• It was clear that the outcome was never going to uphold my grievance and that DB either did not want to look into the issues or was instructed not to. - 12 -• I had seemingly aggravated senior management by undertaking a protected act and there was only ever going to be one outcome which was not upholding any of my grievances.• The grievance process was a sham in much the same way that the following ‘redundancy’ process would be. 27.07.22 to 14.09.22 Issue [11]: R (DB and MSF) failed to provide redress of C’s grievance by failing to genuinely consider it (ss.13, (CMO Issue 8.2(i)). 3 August 2022; Claimant submitted Appeal to Grievance outcome with 531-532, 539 request of re-hearing. letter of appeal PA(iii): Raising an allegation of disability discrimination 540-545 in his grievance appeal letter 4 August 2022 Respondent rejected re-hearing of Grievance. 547 4 August 2022 OH review report dated 15 August 598-600/621-623 Again, C was assessed as fit with restrictions. The advisor commented amongst other matters:- “This gentleman has had cancer and he still has some degree of health anxiety with regards to this ... It appears that this gentleman is experiencing an adjustment reaction to his health events and the grievance has heightened this further. We have talked about the appeal process and the importance of running this parallel to getting better and recovering. I have reinforced that he now needs to control what he can control and although he plans to go through an appeal process, I believe that it is important that a mediation approach is considered by both parties to see whether progress can be made in understanding each other's concerns and trying to develop a path forward to resolve the organisational and individual barriers that are now occurring. This mediation approach could either be on an informal or formal basis and will need to be agreed by both parties. I believe that this gentleman is fit to be in work and in fact it's important that he does normalise. and work will contribute to this. He is working in the office two days week and working from - 13 - home three days per week. but he still describes fatigue after 2 PM. I believe he is capable of undertaking normal hours and normal duties but there may be some slight performance issues until the issues at work are resolved and a mediation approach may be required to progress the work situation” Tue 9 Aug 22 Issue [14]: SP decided to select C for redundancy 558-561/581-584 (s.27) (CMO Issue 8.2(ii)(6)). Email exchange thereafter 562-564/585-587 9 August 2022 PA(iv): Raising an allegation of disability discrimination verbally on in a redundancy consultation meeting; PA(v): Raising an allegation of disability discrimination via email 11 August 2022 Claimant attended first redundancy consultation 574-578, 566 & 10:30 meeting. C receives email in advance 586/597-601 C amends R’s notes PA(vi): Raising an allegation of disability discrimination verbally on in a redundancy consultation meeting Fri 12 Aug 22 Korn Ferry meeting with RB - SP and RB both says SP 953/1003 didn’t attend Wed 17 Aug 22 to C emails R to say he contracted COVID (email dated 22 608/631 Fri 26 Aug 22 August 615 GP sick note & other correspondence 613-615 & 617- 618/636-638 & 641-642 Tue 16 Aug 22 Korn Ferry proposal email 611-612/634-635 Fri 19 Aug 22 RB sends holding response to Korn Ferry email of 16 611-612/634-635 August 2022 Tue 30 Aug 22 C returns to work R conducts RTW 623/647 31 August 2022 R invited C to second redundancy consultation meeting. 624/648 re-scheduled from 18 August 2022 1 September 2022 C attended second redundancy consultation meeting. 629-631/653-655 C amends R’s note of meeting - 14 - Fri 2 Sep 22 C attended Grievance Appeal Hearing against the R’s note decision of DB 635-639/659-663 Chair Mike Semens-Flanagan (MSF) C’s revisions 640- HR Samantha Gudsell (SG) 644/664-668 C unaccompanied The invitation letter 603/626 PA(vii): Raising an allegation of disability discrimination in a grievance appeal meeting At 15:43 that day MSF emails SP subject “F 633/657 Manshausen” stating “… would be good to catch up for 30 mins next week on the above — few things wanted to clarify.” SP agrees to do so stating preferably before Thursday if possible Sun 4 Sep 22 Earliest possible date (EC 28/09/22 – 9/11/22 – claim presented 15/12/22 hence 16/09/22 less 12 days in EC) Mon 5 Sep 22 MSF met with SP via Teams. MSF made notes of their 646-647/670-671 discussion. 6 September 2022 Reward and HR Projects Manager Stacey 660/684 Pamment emailed two HR colleagues under the subject of “Frank M – Shares” starting that confidentially C’s termination date would be 9 September 2022 and asked for an updated calculation. 7 September 2022 SP appears to ask CC via WhatsApp the extent to which 702/726 he can brief C’s direct reports about C’s redundancy process 8 September 2022 PA(viii): Raising an allegation of disability discrimination verbally on in a redundancy consultation meeting; Tue 13 Sep 22 C attended final redundancy consultation meeting. 703-706/727-730 rescheduled from 08.09.22 634/658 to consider suggestions put forward by C on 7 sept 693/717 C alleges R stated verbally that his last day of employment would be 14 September 2022. 14 September 2022 Respondent sent Grievance Appeal Outcome (not Covering email upheld) Whilst the outcome is dated 8 September this 712-713/736-737 was not sent via email until 14 September Outcome Issue [18]: SP (on behalf of R) dismissed C 681-683/705-707 (ss. 13, 15 & 27 EqA and s.98 ERA) (CMO Issues 4.2(i), 5.1(i), 8.2(ii)(7) & 2) 15 September 2022 R emails C written confirmation of dismissal - effective 722-725/746-749 immediately (C was given a payment in lieu of notice). - 15 - Again, this was dated 14 September but not email until 729 (duplicate 15 September 731)/753 (755) C appeals dismissal 729 (duplicate 731)/753 (755) PA(ix): Raising an allegation in a dismissal appeal letter No detriments post date this 16 September 2022. C on prearranged holiday leave c/108 20 September 2022 RB guided CC for updates to R’s Talent Pack and 730 requested to “add CIO to the critical hires” c/109 28 September 2022 Claimant notified ACAS 734 29 September 2022 Claimant attended redundancy appeal hearing. 736-748L Chaired by Richard Burden Notes Connor Steed from the HR team 738/762 PA(x): Raising an allegation in a dismissal appeal meeting 4 October 2022 Stacey Pamment from R’s HR asked CC to confirm if C 753/789 was leaving R’s business and if so to confirm C’s termination date, if his shares were paid out and to send my signed exit approval form. CC responded on 5 October confirming that as his role had been made redundant and so no exit form was completed, his shares were not paid out and his departure date was 14 September 2022. 13 October 2022 RB interviews SP 757-758/793-794 13 October 2022 RB interviews Paul Sigston 758A-758B, 759- 760/(-), 795-798 19 October 2022 SP makes announcement of C’s departure 769-770/807-808 20 October 2022 SP messaged Mr Shook to inform him that he had made 276 (duplicated a 15 minute appointment with him for Monday to discuss at 771)/293 (809) IMI’s CIO. He added “Beth may have discussed with you” 24 October 2022 Respondent dismissed Claimant’s redundancy appeal. 772-774/810-812 Whilst letter is dated 21 October covering email is dated 24 October 1 November 2022 SP shared an updated IT organisation chart 958-963/1008- - 16 - 9 November 2022 ACAS issued Early Conciliation certificate. 1/17 2 December 2022 ICO wrote to R to order it to respond to C’s DSAR 792-794, 879-880 15 December 2022 C lodged Employment Tribunal claim. 2-28/18-44 20 January 2023 SP announcement that MC became R’s ‘Interim Head 809-810/847-848 of IT’ 27 April 2023 SP announced the appointment of Paul Sigston as the [814/854] new permanent Divisional Chief Information Officer (CIO) for R THE LAW (so far as is relevant)[23]Both parties provided lengthy written submissions that they orally expanded upon. We do not therefore propose to relay here all the statutory provisions, caselaw or legal principles we were referred to as they are amply set out in those submissions. Discrimination – Generally Timing[24]Section 123 EqA provides so far as is relevant:- “(1) … 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.” - 17 -[25]Those time limits are extended by the statutory provisions concerning early conciliation.[26]An act “occurs when it is done, not when you acquire knowledge of the means of proving that the act done was discriminatory” 1.[27]The leading authority on “conduct extending over a period” remains as Barclays Bank Plc v Kapur [1991] I.C.R. 208 (HL). That was summarised in the recent Court of Appeal decision in Parr v MSR Partners LLP (formerly Moore Stephens LLP) [2022] EWCA Civ 24:- “38. … the ratio of Kapur is that the critical distinction is between a one-off decision and a continuing act or continuing state of affairs, and that to require employees to work on less favourable terms as to pension than their comparators is as much a continuing act as to require them to work for lower current wages. …42. … a dismissal, even if discriminatory, is a one-off act with continuing consequences rather than conduct extending over a period, even though the dismissed employee may suffer loss of pay and pension for the rest of his or her life. There is no logical reason why a demotion should be treated differently, just because the claimant and the respondents remained in a contractual relationship.43. … The case law does draw a distinction, at any rate when analysing whether the conduct complained of is an “act extending over a period”, between a rule, policy or practice which inevitably leads to the rejection of the claimant and one which involves (in practice and not just on paper) the exercise of a discretion. As Brooke LJ put it in Rovenska v General Medical Council [1998] ICR 85, 92 : “…[T]he courts have held that, if an employer adopts a policy which means that a black employee or a female employee is inevitably barred from access to valuable benefits, this is a continuing act of discrimination against employees who fall into these categories until the offending policy is abrogated.” (Emphasis added by Brooke LJ)”[28]When considering jurisdictional issues Tribunals must distinguish between complaints which amounted to causes of action (which are subject to jurisdictional requirements) and those which are merely relied on as evidence in support (which will not) 2.[29]This does not require some policy, rule or practice in accordance with which decisions were taken from time to time instead what a claimant must show is that "the numerous alleged incidents of discrimination are linked to one another, and that they are evidence of a continuing discriminatory state of affairs.” 3 One relevant but not conclusive factor is whether the same individuals or different individuals were involved in those incidents 4. 1 Mensah v Royal College of Midwives EAT/124/94 at [11G-H]) and Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 2 Stockton on Tees Borough Council v Aylott [2009] IRLR 522 (CA) 3 Hendricks v The Commissioner of Police of the Metropolis [2003] IRLR 96 (CA) Mummery LJ. 4 British Medical Association v Chaudhary UKEAT/1351/01 & UKEAT/0804/02 [208]. - 18 -[30]This was considered in Arthur v London Eastern Railway Ltd [2007] ICR 193 at [26-36] CA per Mummery LJ and applied in Royal Mail Group Ltd v Jhuti [2018] UKEAT/0020/16 per Simler P. “29. Parliament considered it necessary to make exceptions to the general rule where an act (or failure) in the short three-month period is not an isolated incident or a discrete act. Unlike a dismissal, which occurs at a specific moment of time, discrimination or other forms of detrimental treatment can spread over a period, sometimes a long period. A vulnerable employee may, for understandable reasons, put up with less favourable treatment or detriment for a long time before making a complaint to a tribunal. It is not always reasonable to expect an employee to take his employer to a tribunal at the first opportunity. So an act extending over a period may be treated as a single continuing act and the particular act occurring in the three-month period may be treated as the last day on which the continuing act occurred. … 31. … There must be some relevant connection between the acts in the three-month period and those outside it. The necessary connections were …(a) being part of a "series" and(b) being acts which are "similar" to one another.[35]In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. … It is necessary to look at all the circumstances surrounding the acts. …" 31. We thus need to differentiate between :- 31.1. the end of the period of conduct complained of is out of time and 31.2. where it is in time but it is argued earlier conduct extends over the period. 32. It is plain from the language used that Parliament has given Tribunal’s the widest possible discretion. The only requirement placed upon the Tribunal is that it should not leave out of account any significant factor 5. 33. Factors which are almost always relevant to consider when exercising any discretion whether to extend time are "19. …(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)." 5 34. Thus, the exercise of the broad discretion involves a multi-factoral approach taking into account all of the circumstances of the case 6 in which no single factor is determinative 7. In addition to the length and reason for delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the merits and balance of prejudice, other factors which may be relevant are the extent to which the respondent has co-operated with any request for information; the promptness with which the claimant acted once he 5 Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 (CA) Leggatt LJ 6 Hutchison v Westward Television Ltd [1977] IRLR 69 7 see also Rathakrishnan v Pizza Express (Restaurants) Ltd UKEAT/0073/15 per HHJ Peter Clark - 19 - or she knew of the facts giving rise to the cause of action and the steps taken by the claimant to obtain appropriate legal advice once the possibility of taking action is known. 35. The CA in Robertson v Bexley Community Centre 8 said this:- “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. ….” The burden of proof[36]Where a claimant has shown on balance the other required elements of a complaint are made out and the Tribunal has to consider the reason for the alleged treatment s. 136 EqA applies. That provides that if a claimant can prove facts from which the tribunal could decide, in the absence of any other explanation, that there has been a contravention of the EqA the tribunal must determine that the contravention occurred unless the respondent show the contravention did not occur.[37]Ms McCann summarises at (9) of her skeleton the guidance given by the Supreme Court in Efobi on that section thus 9:-(1) The claimant has the burden of proving, on the balance of probabilities, those matters which he wishes the tribunal to find as facts from which the inferences could properly be drawn (in the absence of any other explanation) that an unlawful act was committed (at [30]).(2) The Tribunal is not prevented from taking into account evidence adduced by the respondent insofar as it is relevant in deciding whether the burden of proof has moved to the respondent (at [20]).(3) That will include any facts proved by the respondent which would prevent the necessary inference from being drawn (at [30]).(4) However, explanations (as opposed to evidence) must not be taken into account at the first stage, as the statutory language of s136(1) mandates that the Tribunal must ignore any explanation for those facts given by the respondent and assume that there is no adequate explanation for them (at [22]).(5) So, the ET must consider what inferences can be drawn in the absence of any explanation for the treatment complained of but no adverse inference can be drawn from the fact that the employer has not provided an explanation (at [40]).[38]Thus, a difference in treatment alone is not sufficient to establish that discrimination could have occurred and passed the burden of proof to a Respondent, similarly unreasonable conduct without more is not enough either. Context is important and adverse inferences may be drawn where appropriate from the surrounding circumstances of a respondent’s 8 Robertson v Bexley Community Centre (CA) [2003] IRLR 434. Most recently cited by Richardson J in Vodafone Ltd v Winfield UKEAT/0016/16 9 Efobi v Royal Mail Group Ltd [2021] ICR 1263 per Lord Leggatt - 20 - conduct. If the tribunal is in a position to make positive findings on the evidence one way or the other that is an end to the matter 10.[39]If a claimant can pass the burden to the respondent, the second stage requires a consideration of the subjective reasons which cause the employer to act as he did 11. “At the second stage, the ET must ‘assess not merely whether the [Respondent] has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities’.” 12[40]Where there are allegations of discrimination over a substantial period of time, a fragmented approach looking at the individual incidents in isolation from one another should be avoided as it omits a consideration of the wider picture 13. Inferences[41]When considering what the reason for the treatment complained of was the Tribunal may draw an inference that the alleged perpetrator was motivated (consciously or unconsciously) by the protected characteristic and/or the “something arising” and/or a protected act 14. Similar to what the Supreme Court decided in Hewage, Elias P as he then was, made clear:- “If there is a genuine non-discriminatory reason, at least in the absence of clear factors justifying a finding of unconscious discrimination, that is the end of the matter.” He then continued:- “It would obviously be unjust and inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. If that were so, an employer who selected by adopting unacceptable criteria or applied them inconsistently could, for that reason alone, then potentially be liable for a whole range of discrimination claims in addition to the unfair dismissal claim. That would plainly be absurd. Unfairness is not itself sufficient to establish discrimination on grounds of race or sex, as the courts have recently had cause to observe on many occasions”. 15 before going on to reference Bahl 16 and Zafar 17. 10 Hewage v Grampian Health Board [2012] UKSC 37 at [32] 11 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, at [7]. 12 see the Igen guidance at Annex paragraph 12 and Laing [51] 13 London Borough of Ealing v Rihal [2004] IRLR 642 CA applied in Laing [59] and endorsed in Madarassy v Nomura International [2007] IRLR 246 (CA) 14 Nagarajan v London Regional Transport [1999] ICR 877, at 885E-G 15 Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865 at [22] 16 Law Society v Bahl [2003] IRLR 640, at [127] 17 Glasgow City Council v Zafar [1998] ICR 120 - 21 -[42]In Bahl having made the same point as in the emphasised quote at (41) Elias P went on to explain that the effect of a finding of unconscious discrimination was that “… the tribunal is really finding that the alleged discriminator has concealed the true reason even from himself…” he then continued to explain that in such cases “… there will be no basis to infer unlawful discrimination at all. Tribunals can in a proper case make a finding of unconscious discrimination, but it is a significant finding for a tribunal to hold that they can read someone’s mind better than the person himself, and they are not entitled to reach that conclusion merely by way of a hunch or speculation, but only where there is clear evidence to warrant it”.[43]In order to justify such an inference, the Tribunal must first make clear findings of primary fact from which it is proper and justified to draw such an inference. Disability[44]Whilst disability is not in issue, the definition of it is relevant.[45]Some disabilities, Cancer, HIV infection and multiple sclerosis are deemed to be such (EqA Sch. 1 paragraph 6(1)). Paragraph 19 of the appendix to the EHRC code makes the same point: “Anyone who has HIV, cancer or multiple sclerosis is automatically treated as disabled under the Act. In some circumstances, people who have a sight impairment are automatically treated as disabled under Regulations made under the Act.”[46]Absent those cases the onus is on a claimant to prove that, in the relevant period, he/she was disabled for the purposes of the Act.[47]The issue of whether there is or was a disability as defined by the statutory scheme is one for the tribunal rather than for doctors 18.[48]In determining whether a claimant is disabled we are required to consider the statutory guidance on matters to be taken into account in determining questions relating to the definition of disability issued under s.6 Equality Act 2010 (EqA) relating to the definition of disability.[49]Therefore, whilst four questions need to be considered when determining whether an individual is disabled for the purposes of the Act 19 it is important to look at the overall picture 20:- 49.1. Does the claimant have an impairment which is either physical or mental? 49.2. Does the impairment affect the claimant’s ability to carry out normal day to day activities and does it have an adverse effect. 49.3. Is the adverse effect substantial – not trivial? 49.4. Is the adverse effect long term?[50]The date to assess whether the impairment has a substantial and long term adverse effect on the claimant's ability to undertake normal day to day activities and thus the question of 18 Abadeh v British Telecom plc [2001] IRLR 23 19 Goodwin v Patent Office [1999] IRLR 4 20 Elliot v Dorset County Council UKEAT/0197/20 per HHJ Tayler - 22 - disability itself is the date of the alleged discriminatory act and not at the date of the Hearing 21.[51]As to the meaning of “likely” Appendix 1 of the Code follows the ratio of the pre EqA authority in SCA Packaging Ltd v Boyle [2009] ICR 1056 where the House of Lords unanimously approved the meaning of ‘likely’ in this context was “could well happen” in preference to “probable” or “more likely than not”. The something arising from disability complaints[52]Section 15 EqA provides:- “(1) A person(a) (A) discriminates against a disabled person(b) (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.”[53]Traditionally the most useful guidance to be found in one place on the proper approach to determining section 15 claims, was the decision of Simler P, as she then was, in Pnaiser 22 where she drew together the threads of the previous authorities 23. ‘Defences’ in the wider sense aside, there are three basic elements to a s. 15 complaint: 53.1. a disability 53.2. something arising in consequence of the complainant’s disability and 53.3. unfavourable treatment[54]As to the unfavourable treatment the tribunal must ask itself whether the complainant was treated unfavourably in the respects relied on and if so by whom. No question of comparison arises 24. Whilst Parliament chose to use the expression ‘treats unfavourably’ rather than ‘disadvantage’ or ‘detriment’ the EHRC Code at 5.7 states it means ‘must have been put at a disadvantage’. Like detriment this has been widely constructed by the courts.[55]The three elements require an investigation of two distinct links in the chain: 55.1. did A treat B unfavourably because of an (identified) something? and 55.2. did that something arise in consequence of B’s disability? 25. 21 Cruickshank v VAW Motorcast Ltd [2002] ICR 729 EAT and Richmond Adult Community College v McDougall [2008] IRLR 227 22 Pnaiser v NHS England & Another [2016] IRLR 170 at [31 (a)-(i)] 23 including IPC Media Ltd v Millar [2013] IRLR 707, Basildon & Thurrock NHS Foundation Trust v Weerasinghe [2015] UKEAT 0397/14, [2016] ICR 305 per Langstaff P and Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893 24 Pnaiser [31(a)], Griffiths/25 25 Sheikholeslami v The University of Edinburgh [2018] IRLR 1090 (EAT) [62] & City of York Council v Grosset [2018] IRLR 746 (CA) [36] - 23 -[56]It does not matter precisely in which order these questions are addressed 26. That will depend on the facts 27.[57]The first ‘causative’ issue requires the Tribunal to determine what caused the treatment complained of, or what was the reason for it. That involves an examination of the alleged discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s. 15 case28.[58]The ‘something’ that gives rise to 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. This is not a binary question; was the treatment done because of his/her disability or because of some other reason. Both reasons might be in play 29. As in direct discrimination motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment 30.[59]The second ‘causative’ issue requires a consideration of the question of “in consequence of” the disability. That is a different test to “because of”31. It does not depend on the thought processes of the alleged discriminator32. This is a looser connection such that there may be more than one link in the relevant chain of consequences. The respondent is not required to know of the link or the something. In any event it has a defence under s.15(2) EqA relating to knowledge (see below). Each link is a question of fact that requires consideration. Whether something can properly be said to arise in consequence of disability is an objective question to be robustly assessed in each case by the Tribunal in light of the evidence. 33 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 34.[60]In Robinson v Department for Work and Pensions [2020] EWCA Civ 859, the Court of Appeal confirmed that in a claim under s.15 that the focus needs to be on the reasons for the treatment itself and it is not enough for a claimant to argue that “but for” their disability they would not have been put in a situation that led to unfavourable treatment:- “55. Both s.13 and s. 15 use the same phrase “because of”. One requires A to have treated B less favourably than a comparator would have been treated because of a protected characteristic (s.13), the other to have treated him unfavourably because of something arising in consequence of a disability (s.15). One difference between the sections is that s 13 explicitly involves a comparison between how the Claimant and other persons without the protected characteristic are treated – “less favourable treatment” – whereas s 15 refers only to “unfavourable treatment”. But both sections require the ET to ascertain whether the treatment (whether less favourable or 26 Weerasinghe 27 Pnaiser [31(i)] 28 Pnaiser [31] 29 Sheikholeslami [62, 66]; Grosset [37]; Pnaiser [31(b)] 30 Nagarajan (see above) 31 Pnaiser [31(g)] Grosset [38] 32 Pnaiser [31(d) (f)] 33 Sheikholeslami [62, 66]; Grosset [38] 34 Pnaiser [31(e)] - 24 - unfavourable) was because of the protected characteristic and, as such, require a tribunal to look at the thought processes of the decision -maker(s) concerned”.[61]In so doing the CA approved the comments of Underhill LJ in Dunn v Secretary of State for Justice [2019] IRLR 298.[62]The EHRC Code provides:- “5.9. The consequences of a disability include anything which is the result, effect or outcome of a disabled person's disability. The consequences will be varied, and will depend on the individual effect upon a disabled person of their disability. Some consequences may be obvious, such as an inability to walk unaided or inability to use certain work equipment. Others may not be obvious, for example, having to follow a restricted diet. Example: A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker's disability, namely her loss of temper. There is a connection between the 'something' (that is, the loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker. …”[63]If a claimant shows the other elements of s.15 are satisfied there are two “defences” to a s.15 claim, knowledge and “justification”. Knowledge[64]The language of s. 15(2) makes clear 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) 35. Had this been required the statute would have said so as it does for the knowledge required for a reasonable adjustments complaint. Thus, an employer does not have to be aware that an employee's loss of temper was due to her cancer, the employer only has to be aware that she suffers from cancer 36.[65]The EHRC code says this “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been 35 Pnaiser [31(h)] 36 Grosset [51] (see also Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694, [2022] IRLR 159 at [98] where the CA cited with approval the guidance of HHJ Eady QC (as she then was) in A Ltd v Z [2020] ICR 199, [2019] UKEAT/0273/18 at [23] on the principles to be adopted in determining whether the employer had requisite knowledge for s. 15(2)). - 25 - formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making inquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially. Example: A disabled man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The worker is disciplined without being given any opportunity to explain that his difficulties at work arise from a disability and that recently the effects of his depression have worsened. The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that that these were connected to a disability. It is likely to be reasonable to expect the employer to explore with the worker the reason for these changes and whether the difficulties are because of something arising in consequence of a disability. … When can an employer be assumed to know about disability? 5.17 If an employer’s agent or employee (such as an occupational health adviser or a HR officer) knows, in that capacity, of a worker’s or applicant’s or potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability. 5.18 Therefore, where information about disabled people may come through different channels, employers need to ensure that there is a means – suitably confidential and subject to the disabled person’s consent – for bringing that information together to make it easier for the employer to fulfil their duties under the Act. Example: An occupational health (OH) adviser is engaged by a large employer to provide them with information about their workers’ health. The OH adviser becomes aware of a worker’s disability that is relevant to his work, and the worker consents to this information being disclosed to the employer. However, the OH adviser does not pass that information on to Human Resources or to the worker’s line manager. As the OH adviser is acting as the employer’s agent, it is not a defence for the employer to claim that they did not know about the worker’s disability. This is because the information gained by the adviser on the employer’s behalf is attributed to the employer.” - 26 -[66]Mr MacMillan reminded us that that the issue is whether the employer had actual or constructive knowledge of the facts constituting the claimant’s disability: it does not matter whether the employer comprehends that these facts amount, as a matter of law, to a disability: an employer may not deny relevant knowledge by relying on its unquestioning adoption of OH advice, but must make its own factual judgement as to whether an employee is disabled 37. Justification[67]In contrast to indirect discrimination in s.15 complaints a respondent has to justify the unfavourable treatment rather than a PCP. The relevant legal principles can be summarised thus 38: “(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways [2005] IRLR 863 at [31]. (2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must ‘correspond to a real need ... are appropriate with a view to achieving the objectives pursued and are necessary to that end’ (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to ‘necessary’ means ‘reasonably necessary’: see Rainey v Greater Glasgow Health Board (HL) [1987] ICR 129 per Lord Keith of Kinkel at pp 142-143. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.”[68]Necessary means no more than necessary to achieve the legitimate aim (EHRC Code para 4.31).[69]Whilst it is for the alleged perpetrator to justify the unfavourable treatment the authorities make clear that the alleged perpetrator is not required to provide evidence of justification; Tribunals are expected to use their common sense, reasoned and rational judgment; the 37 Gallop v Newport City Council 2014 IRLR 211, (CA) 38 MacCulloch v Imperial Chemical Industries plc [2008] ICR 1334 EAT [10] - 27 - Tribunal is required to make its own objective assessment. What may not be argued in support are subjective impressions or stereotyped assumptions 39. Thus, in Ministry of Justice v O’Brien [2013] ICR 499 following a reference to the European Court the SC adopted the ECJ’s guidance which is encapsulated in the summary of AG Kokott:- “62. The unequal treatment at issue must therefore be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria for examining the question whether that unequal treatment responds to a genuine need and whether it is appropriate and necessary for achieving the objective pursued ...” 40[70]Where the unfavourable treatment is dismissal, the test of reasonableness applied in unfair dismissal cases and the proportionality assessment under s.15 will generally lead to the same result 41. That will not always be so. A dismissal found to fall within the range of reasonable responses will not inevitably be found to be proportionate for s.15 EqA. Victimisation[71]Section 27 EqA provides: “(1) A person(a) (A) victimises another person(b) (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; 39 see Elias J in Seldon v Clarkson Wright and Jakes [2009] IRLR 267 EAT at [73] affirmed by the Court of Appeal and Supreme Court and in Homer [2009] IRLR 601 EAT per Elias (now LJ) at [48] and also paragraph 4.26 of the Code. 40 see Del Cerro Alonso (Free movement of persons) [2007] EUECJ C-307/05, [2008] ICR 145 para 58, and Angé Serrano v European Parliament (Case C-496/08P) [2010] ECR I-1793, para 44. Albeit that is essentially a restatement of R. (Elias) v Secretary of State of Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213 where Mummery LJ gave the following guidance on what was required :- “[151] ... the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.” Which in turn is a repeat of his view in Hardy & Hansons plc v Lax [2005] IRLR 726 CA at [31 & 32], a view that was endorsed by Lady Hale in Homer at [20-23]. 41 O’Brien v Bolton St Catherine’s Academy 2017 ICR 737 (CA) - 28 -(d) making an allegation (whether or not express) that A or another person has contravened this Act.” Protected acts[72]As to what is required for a protected act in Durrani -v- London Borough of Ealing UKEAT/0454/12, amongst other matters the claimant appealed on the basis that he had referred often during his employment to having been discriminated against and said he had suffered detriment as a result of doing so. Since, however, he had not used the word "discriminated" in any sense other than that he had been unfairly treated, never linked it to race or another characteristic protected by the 1976 or 2010 Acts, and when given the opportunity to say it was on the ground of race effectively explained it was not, there was no complaint which could be understood as one of race discrimination and hence the EAT held his claim for victimisation had rightly been dismissed.[73]The EAT however stressed that that case should not be taken as “any general endorsement for the view that where an employee complains of “discrimination” he has not yet said enough to bring himself within the scope of S.27 EqA”; instead, the issue will depend on the circumstances of the particular case.[74]In Beneviste -v- Kingston University UKEAT/0393/05 in particular [14 & 29] the EAT said this ‘There is no need to for the allegation to refer to the legislation, or to allege a contravention, but the gravamen of the allegation must be such that, if the allegation were proved, the alleged act would be a contravention of the legislation. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development" her statement is not protected. If a woman says to her employer, "I am aggrieved with you for holding back my research and career development because I am a woman" or "because you are favouring the men in the department over the women", her statement would be protected even if there was no reference to the 1975 Act [Sex Discrimination Act 1975] or to a contravention of it.” ’[75]In Fullah v Medical Research Council EAT 0586/12 where in the documents the claimant relied on there was no basis for a complaint of race discrimination. The EAT held that the word ‘race’ did not need to appear, but that the context must indicate a relevant complaint; in that case the context was lacking as the complainant alleged the same conduct was meted out to his fellow (non-black) employees as well.[76]Thus, context is the critical issue.[77]Here, IMI has conceded that each of the claimant’s alleged protected acts are, protected under s.27(2)(d) EqA. - 29 - Detriments[78]Detriment has been given a wide meaning by the courts 42 and is assessed objectively; that is how it would be perceived by a reasonable litigant 43. In making that assessment we must bear in mind that an unjustified sense of grievance cannot constitute detriment 44, and whilst it is not a defence per se that the employer behaved honestly and reasonably, save in the most unusual circumstances, it will not be objectively reasonable for an employee to view distress and worry caused by honest and reasonable conduct of the employer as a detriment 45. A person may be treated less favourably and yet suffer no detriment. The causal link[79]Again, like s.13 the words used in s.27 are “because of”. This is not a “but for” approach had the claimant not brought a claim, the detriment would not have occurred 46 instead the tribunal must enquire into the real reason for the treatment complained of and the protected act must be the real reason for the detriment 47.[80]IMI argues that because some of the alleged perpetrators of victimisation did not know of the protected acts relied upon the protected act cannot be a real or effective cause of any detrimental treatment[81]It likewise argues some of the alleged perpetrators had no appreciation of the fact that Mr Manshausen was complaining about disability discrimination – for example, Mr Purewal did not realise that Mr Manshausen was complaining about disability discrimination until the first redundancy consultation meeting on 11 August 2022.[82]To be a real or effective cause of any detrimental treatment the perpetrator must therefore know of the alleged protected act 48, its contents 49 and that the complaint amounted to a contravention of the EqA and not simply that there had been a complaint in general.[83]IMI accepts that if 83.1. the alleged perpetrator knows the content of the complaint AND 83.2. that complaint is found (or conceded) to be a PA, 42 Lord Hoffman in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at [53]. Brandon LJ in Ministry of Defence v Jeremiah [1979] IRLR 436 CA, a case involving the interpretation of the 1975 Sex Discrimination Act, stated “… I do not regard the expression 'subjecting to any other detriment', as used in s.6(2)(b), as meaning anything more than 'putting under a disadvantage' ” and went on to say that was a question of fact for the Tribunal. adopted and approved by the HL in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 which in turn referred often to another HL decision in Chief Constable of West Yorkshire Police v Khan (as above). 43 Ministry of Defence v Jeremiah (as above) [31] per Brightman LJ approved in Chief Constable of West Yorkshire Police v Khan (as above) 44 Shamoon v Chief Constable of Royal Ulster Constabulary (as above) per Lord Hope [35]. 45 Pothecary Witham Weld (a firm) & Anor v. Bullimore & Anor [2010] IRLR 572 (EAT) at [19(3)] applying Derbyshire v. St. Helens Metropolitan Borough Council [2001] ICR 841 46 Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065 (CA) 47 Chief Constable of Greater Manchester Police -v- Bailey [2017] EWCA CIV 425. 48 Scott v London Borough of Hillingdon [2001] EWCA Civ 2005, at [19] and [24] 49 South London Healthcare NHS Trust v Dr Al-Ruebyi UKEAT/0269/09, at [21], and [26] to [28] where an alleged perpetrator was aware of a complaint but not its contents - 30 - then he/she has the requisite knowledge (by analogy with the case on protected disclosures 50). However, IMI also argues that if that person did not appreciate that the employee was complaining about a contravention of the EqA, then – evidentially – it is much less likely that any part of the reason for the impugned treatment (i.e. an effective or operative cause of it) was the protected act.[84]A failure to investigate a complaint of discrimination or harassment will not constitute victimisation under s.27 unless there is a link between the fact of the employee making the complaint and the failure to investigate it51. The EAT went on to say that where the nature of the complaint meant that the employer found the prospect of dealing with it such that it took no action the EAT indicated that an employment tribunal might conclude that the failure to act could conceivably come within the scope of victimisation. Inferences can be drawn where an employer puts forward an unsustainable reason for failing to investigate an employee’s complaint52. Direct disability discrimination[85]Direct discrimination is prohibited by s.39 EqA. Section 13 EqA provides that direct discrimination occurs where because, of a protected characteristic, a person is treated less favourably than another person has been or would have been. That is an objective question and involves a comparison. The use of “would” allows for a hypothetical as well as an actual comparison. In making that comparison s.23 EqA requires that apart from the protected characteristic there must be no material difference between the circumstances of the complainant and the real or hypothetical comparator “relating to each case” 53.[86]It is not sufficient for a claimant to have a protected characteristic and to be treated less favourably for a respondent to be guilty of direct discrimination. The less favourable treatment must be done ‘because of’ the protected characteristic. The protected characteristic need not be the sole or even principal reason for the treatment so long as it has a significant influence (that is one which is more than trivial) on the reason for the treatment 54.[87]The question we have to address is consciously or unconsciously, what was the alleged discriminator’s reason for acting as they did? 55 Unlike causation, which is a legal conclusion, the reason why a person acted as s/he did is a subjective question and one of fact56. The tribunal must not concern itself with is “if the discriminator treated the complainant less favourably on racial grounds, why did he do so?” That question is irrelevant57. Discrimination is not negated by the alleged discriminator’s motive or 50 Croydon Health Services NHS Trust v Beatt [2017] ICR 1240 (CA) 51 A v Chief Constable of West Midlands Police EAT 0313/14 52 Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust 2019 IRLR 1022 (CA) 53 The wording in s.23 EqA differs slightly to that used in the DDA 1995 (“relevant circumstances” see Cordell v Foreign & Commonwealth Office [2012] ICR 230 EAT) 54 Nagarajan v London Regional Transport 1999 IRLR 572 HL and Igen v Wong [2005] IRLR 258 [37] 55 An example is that of the shop keeper given by Lord Phillips in Governing Body of JFS [2010] 2 AC 728 at [21] “A fat black man goes into a shop to make a purchase. The shop-keeper says ‘I do not serve people like you’. To appraise his conduct it is necessary to know what was the fact that determined his refusal. Was it the fact that the man was fat or the fact that he was black? In the former case the ground of his refusal was not racial; in the latter it was. The reason why the particular fact triggered his reaction is not relevant to the question of the ground upon which he discriminated.” 56 Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 at [29] 57 R. v Birmingham City Council, ex p. EOC [1989] AC 1155, see Lord Goff at 1194. - 31 - intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably 58.[88]Mr MacMillan reminded us that the reason that step is in play is that whilst “there may be cases where the ‘but for’ test is satisfied — but for the protected characteristic or step the act complained of would not have happened — … but nevertheless the claim fails because, on the evidence, the protected characteristic or step itself did not materially impact on the thinking of the decision maker and therefore was not a subjective reason for the treatment…” before referring us to the following “The fact that a claimant’s sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment” 59.[89]Ms McCann argues in turn that, particularly in the case of direct disability discrimination, the fact that a putative discriminator does not appreciate that someone’s condition makes them a disabled person in law may well mean – evidentially – that the fact of that person’s disability becomes less likely to be a real or operative cause of any alleged discriminatory conduct. Unfair dismissal[90]Where, as here, a claimant was an employee, has been continuously employed for 2 years, and a brought a claim for unfair dismissal within the relevant time limits the employee has the right not to be unfairly dismissed 60.[91]In such cases it is for an employer to show the reason (or, if there was more than one, the principal reason) for dismissal was a potentially fair reason. The potentially fair reasons relied upon here are redundancy and some other substantial reason.[92]Section 139 ERA 1996 provides so far as is relevant: “(1) … an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to - … (b) the fact that the requirements of that business- i) for employees to carry out work of a particular kind, or ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.” 87. In applying that definition whilst no unnecessary gloss should be placed on that wording but the following guidance has been given 61 :- 87.1. Was the employee dismissed? 87.2. If so, had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished or were they expected to cease or 58 Lady Hale in JFS at [57] 59 Amnesty International v Ahmed [2009] ICR 1450, [2009] UKEAT 0447/08 at [37] 60 s. 94 Employment Rights Act 1996 61 Safeway Stores plc v Burrell [1997] ICR 523 (EAT)]. - 32 - diminish? That is not the same question as if there was a diminishing need for the kind of work for which the claimant was employee, that he did or was required to do. 87.3. If so, was the dismissal of the employee caused wholly or mainly by the cessation or diminution (or expected cessation/diminution)? At this stage the employee’s job duties and/or the terms of the employee’s contract may well be relevant. In that they impact whether the dismissal is wholly or mainly attributable to one of the states of affairs mentioned in s.139 ERA 1996. For example, if an employee who could have been employed elsewhere, or who was not carrying out work the requirements for which had ceased or diminished (or were expected to), it is likely to be more difficult to establish that the dismissal was attributable to the redundancy situation.[93]As regards “redundancy” and/or reorganisations argued as “some other substantial reason” dismissals whilst a business rationale may make good or poor business sense, as far as the employee or even the Tribunal is concerned; but it is purely a matter for the organisation 62.[94]The "reason" for dismissal refers to the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss 63 (or, as it is sometimes put, what "motivates") the decision 64. That includes information coming to a respondent’s knowledge on the hearing of any appeal 65.[95]This was classically assessed by reference to the set of facts known or beliefs held by the employer which caused it to dismiss the employee 66 and that includes information coming to the respondent’s knowledge on the hearing of the appeal 67. Whilst that formulation as originally drawn was directed to a particular issue 68 and thus may not be perfectly apt in every case, the essential point remains a valid one; the "reason" for dismissal connotes the factor(s) operating on the mind of the decision-maker which cause him/her to take (or, as it is sometimes put, what "motivates") the decision 69. The Court of Appeal has repeated that view; the tribunal is obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss 70.[96]Where, as here, the claimant has qualifying service to bring a claim of unfair dismissal 71 but advances a different reason to that suggested by the employer 72 the tribunal must consider the evidence of both sides as a whole and from that make findings of 62 Moon v Homeworthy Furniture (Northern) Ltd [1977] ICR 11 (EAT) 63 Per Underhill LJ in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632. That is subject to the possible qualifications discussed at [62 & 63] and “it is the [ET’s] duty to penetrate through the invention rather than to allow it also to infect its own determination” 64 see also The Co-Operative Group Ltd v Baddeley [2014] EWCA Civ 658 [41] 65 Browne-Wilkinson P in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 (EAT) at [95] approved by Lord Bridge in West Midlands Co-Operative v Tipton [1986] IRLR 112 (HL) 66 Abernethy v Mott, Hay & Anderson [1974] ICR 323 CA per Cairns LJ at 330B-C 67 Browne-Wilkinson P in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 (EAT) at [95] approved by Lord Bridge in West Midlands Co-Operative v Tipton [1986] IRLR 112 (HL) 68 Hazel v Manchester College [2014] ICR 989 (CA) per Underhill LJ at [23] 69 see also The Co-Operative Group Ltd v Baddeley [2014] EWCA Civ 658 [41] 70 Per Underhill LJ in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632. That is subject only to the possible qualifications discussed at [62 & 63] therein. 71 Smith v Hayle [1978] IRLR 413 (CA) 72 The cap on the compensatory award does not apply if the dismissal was for s.103A reason (s. 124(1A) ERA) - 33 - primary facts what the reason (or principal reason) for the dismissal was noting the burden is on the employer to do so. If the employer does not show to the satisfaction of the Tribunal that the reason was what he asserted it was, it is open to the Tribunal to find that the reason was what the employee asserted it was. A mere assertion by the employee will not normally be sufficient to discharge the evidential burden on the employee; s/he must produce some evidence to support the assertion. It may be open to the tribunal to find that the true reason for dismissal was not that advanced by either side. Thus, the employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employee is dismissed for an automatically unfair reason 73.[97]Here Mr Manshausen argues he was dismissed having done a protected act, his grievance (and he thereafter lodged an SAR). There are cases where the making of a protected act (or disclosure) can be separable from a detriment or dismissal that flows from it 74. The Court of Appeal has made clear 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" 75 and it would only in very few cases be such that the detriment or dismissal would not be found to be done by reason of the protected act 76. Reasonableness[98]If a potentially fair reason is shown by the employer, the Tribunal must then go on to assess the fairness of the dismissal. The starting point for that question is the words of s.98(4) Employment Rights Act 1996 (“ERA”). The burden of doing so is neutral:- “…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 a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[99]When assessing if the employer acted reasonably in all the circumstances the Tribunal must not carry out its assessment of the reasonableness of the employer’s conduct using its own subjective views as to what was the right course to adopt 77; in many, (though not all) cases there is a “band [sometimes called range] of reasonable responses” within which one employer might take one view, and another might quite reasonably take another. The role of the tribunal is to decide in the circumstances if the decision to dismiss and the procedure adopted fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal and preceding procedure falls within the band, the dismissal is fair, if outside the band, unfair 78. 73 Kuzel v Roche [2008] IRLR 530 (CA) [56-61] 74 Martin v Devonshires Solicitors [2011] ICR 352 see [23] 75 Bolton School v Evans [2007] ICR 641 CA per Buxton LJ at [18]. 76 Woodhouse v North West Homes Leeds Ltd [2013] IRLR 773 CA [103] 77 Orr v Milton Keynes [2011] ICR 704 CA 78 Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT - 34 -[100]In Polkey v AE Dayton Services Ltd [1988] ICR 142 the House of Lords made clear that procedural fairness is an integral part of the reasonableness test now found in s. 98(4) of the 1996 Act and how that might apply in a collective redundancy situation. The House of Lords decided that the failure to follow the correct procedures were likely to make an ensuing dismissal unfair, unless, in exceptional cases, the employer could reasonably have concluded that doing so would have been "utterly useless" or "futile". This meant in the words of Lord Bridge, that:- "… in the case of redundancy, the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment in his organisation”. 88. The ACAS Code of Practice on Disciplinaries & Grievances (2015) expressly states that it does not apply to dismissals for redundancy and, therefore, it need not be followed in such cases. 89. Ms McCann states the sorts of matters to be covered in a fair consultation will usually include:• An opportunity for the employee to comment on the basis for selection.• An opportunity for the employee to challenge their specific selection for redundancy.• An opportunity for the employee to put forward any suggestions for ways to avoid their redundancy.• Consideration of any alternative employment positions that may exist.• An opportunity for the employee to address any other matters or concerns. 90. She continues that there are no prescribed timescales for consultation 79 and no fixed rules about how the pool should be defined - an employer has a wide discretion and, so long as it genuinely applies its mind to the choice of pool and that choice is within the band of reasonableness, because decisions as to pools (and criteria) are matters for management and a tribunal will rarely interfere with them 80 and it will be exceedingly difficult for the employee to challenge. Thus, a pool of one is not necessarily unfair 81. 91. She concludes by stating the question is, therefore, whether it was within the range of reasonable responses open to IMI to focus upon Mr Manshausen as the person at risk of redundancy when it decided to delete the Divisional CIO role. OUR FINDINGS & CONCLUSIONS[101]Our findings below are made on balance of probabilities based on the evidence we heard and documents we were taken to.[102]We have adopted subject headings for ease of reading. For the most part these follow the issues that remain. 79 Rogers v Slimma plc UKEAT/0168/06 80 Halpin v Sandpiper Books Ltd UKEAT/0171/11, per HHJ McMullen QC at [14 & 17]. 81 Halpin, Wrexham Golf Club Co Ltd v Ingham UKEAT/0190/12, Capita Hartshead Ltd v Byard [2012] ICR 125 and Alvis Vickers Ltd v Lloyd UKEAT/0785/04 - 35 - [3] Not implementing proposed structure for IT Department / Reducing the size of IT department during C’s absence & following his return (ss.13, 15 & 27)[103]The victimisation element of this claim is limited to the period after the first protected act on 24 May 2022.[104]We find it is clear from Mr Manshausen’s grievance [355/375] that his thinking at the time was that the changes to his role dated back to 2019 and the appointment as “Finance & IT Director” of Mr Purewal’s predecessor Sally McKone in September 2019 amongst other matters. That was restated in his grievance appeal meeting with Mr Semens-Flanagan on 2 September 2022 [640-644/664-668]. Mr Manshausen stated that his complaints went back to 2019 when Sally McKone was appointed as IMI’s Finance & IT Director as the successor to Paul Ward (Chief Finance Officer). He elaborated. The role she was appointed to changed, there was a restructure of his business unit, he lost a big team including several employees and half of his work and another layer of management added. Mr Manshausen stated that he felt that Ms McKone and Mr Purewal (after she left) were more involved and hands-on with IT. The notes [642/666] record:- “FM says it is important to note this is not about the absence it started before that, he feels the company reacted to economic pressures and needed to cut costs temporarily which meant FM lost roles. Then last year there was the restructuring. On paper he thought it sounded good, then he felt when he went off sick the opposite happened, people lost their jobs, 2 people dismissed, people were let go from a skill point of view.”[105]Whilst the minutes of that meeting that were amended by the claimant at the time, he did not amend them in those respects. We find they accurately reflected his thinking at the time of that meeting. Mr Manshausen complained about the failure to implement a new structure that he felt had been agreed before June 2021 and the start of his absence. He argues that structure would have resulted in an increase in the size of his team; those roles showed as vacant on the organisational structure charts.[106]IMI asserts overall, there was one additional role in the team structure in June 2022 [392/PDF412] (CIO plus 29 roles), as compared to June/July 2021 [242/PDF269] (CIO plus 28 roles). Whilst there is an issue whether two regional IT Directors who had dotted (functional) reporting lines into the CIO role were exited from the business (which Mr Manshausen accepted in cross examination was with his knowledge and approval) their roles did not exist in the new structure.[107]Whilst Mr Manshausen’s team was reduced to direct 3 reports in post (Paul Sigston, Paul Robinson and Astrid Rothaut ((see the July 2021 organisational chart [252/269])) it also showed 3 direct report roles that were vacant. Based on the evidence before us those roles appeared to be new (i.e. additional roles) following the customer first programme and recruitment to them was conditional upon other posts being removed from the structure such any recruitment was headcount neutral.[108]Mr Purewal made that clear to Mr Manshausen in an email 15 June 2021 [230/247] “New roles…. Where can we offset with reductions rather than add to the organisation?”. Whilst that email postdated IMI’s knowledge of Mr Manshausen’s cancer diagnosis but was sent before his sickness absence started. The date it was sent aside Mr Manshausen conceded in cross examination that:- - 36 - 108.1. any newly created roles were subject to approval and conditional on not adding cost, 108.2. he was aware before his absence commenced that, whilst new roles had been identified they had not been through the formal (financial) approval process, and that, on his return, he did not submit any of the vacant positions for approval, and 108.3. there were vacancies in other teams which also had not been recruited to, even though those roles appeared in the structure for those teams.[109]We find that any changes to Mr Manshausen’s team had been made prior to his absence, that the new structure was subject to appointments being head count neutral, whilst the organisational charts identified vacant posts they were notional and would only be appointed to if as we say, roles were lost elsewhere, and that any failure to implement that new structure was due to that requirement and had nothing to do with Mr Manshausen’s absence or any grievances/protected acts he subsequently lodged about either.[110]We find contrary to the assertion by Mr Manshausen, that his team did not reduce in size during his absence nor following his return to work on 12 January 2022. Accordingly, there was no less favourable treatment, unfavourable treatment or detriment. Nor in any sense was the failure to implement the new structure or appoint to posts in any sense connected to his absence, they were due to the constraint that the customer first programme was head count neutral.[111]This complaint accordingly fails.[112]For the reasons we give above we find Mr Manshausen’s role reduced following the appointment of Ms McKone. Whilst the organisation charts following the customer first programme showed vacancies, they were dependent on appointments being headcount neutral. We find having stepped back and looked at matters in the round that when he returned from his absence Mr Manshausen mistakenly felt that the vacancies in the organisation charts would be filled, his role restored to what it was prior to Ms McKone’s appointment, developed a sense of grievance when it was not, and formed the view that the diminution of his role was related to his absence (and had not arisen before it). The events leading to Mr Manshausen’s grievance and DSAR[113]We find that by the time Mr Manshausen had returned to work full time he held what was a genuine, but ill-founded sense of grievance about those points. Despite that he argued that they were related to his absence despite them predating his absence.[114]Mr Manshausen raised them at what he accepted was one of what his regular 1-2-1s with Mr Purewal on 31 March 2022. His notes [336 & 337/PDF356 & 357] identify that he brought up the topic of his role and what he perceived as its devaluing since 2018/19 and that Mr Purewal agreed that the role was not same as when Mr Manshausen took up the role. It was agreed a number of options were discussed but that Mr Purewal ruled out:- 114.1. the Data & Analytics team coming back under CIO responsibility. 114.2. the option of Group CIO role for Mr Manshausen. whilst Mr Manshausen’s notes do not record this, two other options were discussed:- 114.3. the Divisional CIO role revert to what it had been in 2018 or 114.4. that he left under an exit package. - 37 -[115]It was not in dispute that by the end of the 1-2-1 only one option remained on the table, an exit on terms to be agreed.[116]Mr Purewal told us that because Mr Manshausen had made it clear to him that he was unhappy in his position and that his preference would be to leave if the right terms could be reached, he viewed Mr Manshausen as a “flight risk” and recorded that in documents regarding the future team structure and in the Talent Pack.[117]Mr Purewal also told us he discussed the 1-2-1 with Ms Craner and Mr Burden and they confirmed that a financial compensation package could be put forward.[118]Mr Burden repeated Mr Purewal’s view. He told us that as a result he spoke to Ms Craner to say that provided any offer made to Mr Manshausen was within an envelope she was free to work on the proposal with Mr Purewal.[119]Ms Craner told us she was asked to assist in that process by Mr Burden. She told us IMI had some rough guidelines that it used in those situations. She then had a number of discussions with Mr Manshausen “… but it became clear that there was not going to be any agreement over the amount and so the matter never progressed beyond those discussions.”[120]It was not in dispute that an offer(s) was been made but was rejected. Ultimately no agreement was reached.[121]By 16 May Mr Manshausen had instructed a solicitor to advise and she had contacted IMI. IMI via Ms Craner made its position clear “I have replied to the lawyer explaining we do not accept external representation for our employees on an internal issue.” but asking Mr Manshausen to contact Ms Craner “… as soon as possible to discuss this matter further especially if you feel you have a grievance.” [350/370].[122]Mr Manshausen replied a few days later (18 May) stating “I will be in touch again regarding the concerns that I have already repeatedly raised within the Company and which have not been progressed by management or HR.”. Ms Craner replied the following day asking him to “… detail the nature of the grievance including any relevant facts, dates and names of individuals concerned. As this involves your line manager, I will arrange for an appropriate manager to hear your grievance.”.[123]She told us that she viewed negotiations at that point as at an end but that she believed there could still be an agreement depending how things paned out.[124]For an agreement to have been reached IMI’s position was that Mr Manshausen needed to accept an offer with the range it offered. Mr Manshausen did not and on 24 May 2022 a grievance followed. Mr Manshausen sent that to Mr Burden who passed it on to Ms Craner to deal with.[125]In contrast to Ms Craner’s view Mr Burden said this:- “40. The request itself was received on 10th June 2022 – pages 435-436. At that time Charlotte was involved in settlement negotiations with Frank but had not reached agreement as to the compensation he would receive for the loss of his employment. It is fair to say that we were some way apart.”[126]That in our view implies settlement negotiations were not continuing. The making of the grievance by Mr Manshausen tends to support the argument that he was not happy to accept the offer made and given settlement negotiations did not continue thereafter, we - 38 - prefer Ms Craner’s portrayal to that of Mr Burden, that is to say that by 19 May 2022 negotiations had broken down, but a settlement could potentially be reached (although that would have required Mr Manshausen to amend his position).[127]The designation of Mr Manshausen as a flight risk aside IMI’s view of Mr Manshausen is set out in the information supplied as part of its Divisional Talent Review that was to take place on 27 May 2022.[128]The Talent Pack went through various iterations. The meta data exchanged between the parties suggests that one version of the Talent Pack marked “March 2022” was modified at 11:26 on 1 April, before being sent to Ms Craner at 16:28 on 1 April by Ms Helal, a HR graduate.[129]The initial version of Talent Pack dated March 2022 [327-330/347-350] identified under the heading current performance that Mr Manshausen “falls short = address under performance”, that his future potential was marked “N/A” the next/highest attainable position he could achieve in the business was marked as “N/A” and under timing “H2 2022” (i.e. second half of 2022). He was designated a high flight risk and, in the section, addressing “current performance and future potential” that he met expectations regarding “demonstrating values” but fell short regarding “delivering results”. On 1 April the talent pack was amended so “exit” was shown in red text. An amended version was saved on 19 April by Ms Craner [327] her sole change having been to change the colour of that text to black. Ms Craner told us she assumed the amendments had been made by Ms Helal having spoken to Mr Purewal. Mr Purewal was not asked about that the issue, Ms Craner having given evidence after him.[130]The final version was amended on 19 May [373-4/393-4] to say, “exit in process” from a version dated 12 May [376/396] stating “action plan in place”. In each Mr Manshausen was categorised thus “A number of below expectations individuals have been exited with clear action plans in place for the remaining”. Mr Burden told us that amendment followed a conversation between Ms Craner and him sometime after 12 May (but before the 19 May). He did not explain in any detail why he was inputting into the Talent Pack or the basis for him doing. Whilst Ms Craner referenced changes to the packs being made, she made no reference to that conversation in her evidence. At [378/398] it was identified Mr Manshausen had a high flight risk.[131]On IMI’s account Mr Manshausen had been under performing since 2019-20. Whilst he accepted he had received coaching, Ms Craner confirmed in response to a question from the judge that no action plan had been put in place for him nor could she explain why one had not been. Mr Burden sought to suggest that is not the way things worked with senior management.[132]Had there been the performance issues IMI allege we find it surprising they were not raised as performance management issues with Mr Manshausen at some point, not only for his benefit but for IMI’s given the highly competitive business it was.[133]The absence of a performance management process aside, email exchanges as far back as March 2020 suggest that Ms McKone had identified Mr Manshausen as an inconsistent performer and an upgrade plan was in place for Mr Manshausen. The fact of that had been relayed to Ms Craner [156/173 &158/175].[134]As to the evidence underlying that, the various versions of the 2020 Talent Pack identified that whilst Mr Manshausen’s results were at expectations, his behaviours were below expectations and that mentoring was scheduled [846/891 & 848/893]. Whilst Mr - 39 - Manshausen told us he was not aware of that view concerning his performance as we say he accepted he received mentoring from a leadership coach.[135]By January 2021 IMI’s records show he was recorded as still below standard despite that mentoring [854/899] and that he rated himself more highly than Ms McKone did [433/453 & 180/197].[136]Mr Burden appeared to be aware of those performance issues as long ago as March 2020 [156/173] and when Ms McKone announced her departure in late 2020, Mr Manshausen considered applying for her role, he spoke to Mr Burden who did not encourage him.[137]Mr Burden’s concerns about Mr Manshausen appeared to have been long held. In an email about rewards and recognition to Beth Ferreira dated 22 March 2021 [190/207] he said: “… Frank has a track record of ‘having favourites’ … (can’t believe Frank puts himself on the [rewards] list) …”[138]In a hand over email to Mr Purewal of 17 February 2021 [185/202] Ms McKone said “… Frank likes process and structure and isn’t good at stakeholder management …”[139]Those negative views aside Mr MacMillan pointed Mr Purewal to indicators of improvement on Mr Manshausen’s part. In particular that he led IMI’s response to a cyber attack shortly after Mr Purewal took up his post in March 2021 and also referenced Mr Manshausen’s 2022 mid year appraisal that was completed by Mr Manshausen on 29 July 2022 [288/305].[140]Mr Purewal orally accepted that Mr Manshausen was not told he was underperforming. It was put to Mr Purewal that everything was on track or completed save for “smart factories” which was on hold. Mr Purewal stated that whilst there was a plan to achieve the goals they had not been achieved at that point. That of course does not support a finding of underachievement at mid year which is when that issue arose.[141]When asked how he would have rated Mr Manshausen Mr Purewal accepted he had not assessed him. When it was repeatedly suggested there was nothing to show Mr Manshausen was underperforming by mid year 2022, whilst Mr Purewal disagreed when he was asked for evidence of that all he was able to say that he had not seen a lot of results and there was not a lot being delivered.[142]Whether they address the favouritism and stakeholder management points is a different matter.[143]The critical issue for us is the extent to which the views portrayed in the Talent Pack relate to the performance of Mr Manshausen as assessed by Mr Purewal in the 3 month period before Mr Manshausen’s diagnosis and absence, impressions he got from others or whether they were an after the event attempt to justify Mr Manshausen’s exit.[144]In the grievance interview conducted on 16 June [446/466] Mr Purewal was recorded as follows:- “SP worked with Frank for around 2 months before Frank went off sick. SP confirmed that he was concerned around FM’s performance in the brief period that they worked together and when Frank returned to work on a phased basis, SP did not wish to add any additional stress and took on the additional work himself.” - 40 -[145]Whilst Mr Purewal had clearly taken on part of Mr Manshausen’s role during his was absence and phased return so had Mr Manshausen’s reports. It was misleading of Mr Purewal to say he had taken on the additional work himself.[146]Mr Purewal told us he had not assessed Mr Manshausen and gave no real detail to support the performance concerns before us. What he gave us were generalised impressions. In the grievance appeal interview of 5 September 2022 [646/670] Mr Purewal’s view was recorded as:- ”MSF asked about comment made on FM performance after 2 months in role before he went off sick. SP confirmed he only worked or a while with him, no specific discussion was held about performance (good or bad) at that time. SP said at the time there was a lot of negative feedback about IT, but this was from across the business and not unusual — comments like IT not customer focused enough or not supportive enough. But then, most people have some moan about IT.”[147]If that was the general view Mr Purewal did nothing to dissuade our concerns that he merely adopted it and that there were performance issues in three months he worked with Mr Manshausen between Mr Purewal became his line manager and Mr Manshausen’s diagnosis. Mr Purewal accepted he had not undertaken an assessment at the mid year 2022 and could not provide to us any substantive basis during the prior to his absence to come to that view. We find the view he held appeared to be based on impressions he had made without supporting evidence and without him showing he had challenged what he recognised before Mr Semens-Flanagan were potentially general complaints about IT and/or the basis for those complaints.[148]That causes us to doubt whether the view he held was a fair one and was thus an attempt to provide support for an underperformance argument.[149]Those concerns together with our concerns about the weight we should give to IMI’s witnesses (see below) lead us to conclude that IMI’s witnesses were trying to portray matters concerning Mr Manshausen’s performance in a more negative light in that talent pack than they were.[150]Those points aside whilst IMI had identified Mr Manshausen as a high flight risk, after the 1-2-1 on 31 March it was clear IMI took the view his “exit was in process”. [4] SP created a loss of seniority and effective demotion by the informal removal of C’s direct reports (caused by SP meeting with them directly) (ss.13, 15 & 27) and [6] Exclusion of Mr Manshausen from internal & external meetings (ss.13,[151]Issue 6 from the revised Schedule of Issues refers to 12 matters, complaints 6(i)-(xii). During the hearing complaints 6(vii)-(ix) were withdrawn completely and 6(x) withdrawn but argued as background. Issue 4 stems from them so we address these two complaints together.[152]Before we address the component parts of issue 6, we first need to consider the lead up to and following Mr Manshausen’s return to work in January 2022. - 41 -[153]On 9 June 21 Mr Purewal emailed Mr Burden to inform him of Mr Manshausen’s cancer diagnosis. Mr Burden responded acknowledging that was terrible news and asking if IMI needed to start the search for an interim CIO. Mr Purewal responded“Yes. We will need an interim CIO. Someone with a fresh perspective will give good insight into IT. After Tuesday after we may know Frank‘s treatment plan and timing 3 little better, so can finalise the plan after that.” [223-226/240-243].[154]Mr Manshausen returned to work on 12 January following an OH appointment on 10 January 2022.[155]On Thursday 13 January 2022 in an email chain to Mr Shook [308-309/325-326] Mr Purewal set out what had happened in interim :– “To update you, Frank will rejoin the business from next week following a review with Occupation Health. Thankfully, his treatment has gone well. He will initially return for 3 mornings per week in line with health advice (c. 12 hours). After that, we will reassess longer hours. We had looked for an interim CIO. The final candidates we had would have been considered for an interim role in IT (and maybe longer term permanent role) but both final candidates performed extremely poorly in their basic numerical and verbal testing. Therefore, we didn’t proceed with any interim role. I’d like to thank Martin for his support on the process. Will monitor Frank for now and support his reintegration. Of course, his health and wellbeing is our initial priority.”[156]Mr Shook responded late that evening:- “Good to hear he can return. Let’s make su[r]e we have the support around him, from his team, appropriately. Should we restart a search to provide additional support? Or search for a slightly more junior person?”[157]Mr Purewal responded early the next day:- “Thanks for the note. It’s quite the opposite for now – the team felt they managed well without Frank and are a bit anxious his return will slow them down by adding a layer. We’ll assess around Q1 how things are going but I’m comfortable that we don’t need anyone further at this point.”[158]We find IMI had tried to recruit a temporary and/or permanent replacement had been unsuccessful - his role had been covered by Mr Purewal and Mr Manshausen’s reports during his absence. That necessarily required Mr Purewal and Mr Manshausen’s reports to undertake tasks that Mr Manshausen previously did and to attend meetings in his absence.[159]Following Mr Manshausen’s return the OH reports set out the position with regards to his phased return:- 159.1. For the first week Mr Manshausen worked two half days per week working from home, 159.2. For the next two weeks he worked 3 half days per week, - 42 - 159.3. by the 7 February he was advised to work 4 half days for that week and 5 half days thereafter albeit still working from home 159.4. in the occupational health report dated 18 March following an assessment undertaken on 10 March he was advised to gradually increase over the next six weeks his hours of work from 5 half days so he was undertaking normal hours by the end of that period. 159.5. By the end of April Mr Manshausen was working full time hours albeit on a hybrid basis (like all of IMI’s equivalent staff).[160]Mr Manshausen complains that on his return that he continued to be undermined by amongst other matters that continuing and him being side lined. It was not in dispute that Mr Manshausen’s reports were assigned to or assisted with projects led by other senior managers prior to and after his return. There may have been a number of reasons for that. It may have been they were standing in for him. It may have been that it was their personal expertise that was required and not that of Mr Manshausen. We address various examples of that below. Similarity, we address the various instances where Mr Manshausen accepted he was updated on projects. For the reasons we give in below, as a good manager, Mr Manshausen should have been able to give us an explanation why he should have been involved personally, or how he was being side lined in relation to those projects. Instead for the most part he merely asserted he had not been involved and should have been. We now address the complaints in turn.[161]Complaint 6(i) relates to Digital Factories meetings (see also (186) and the following paragraphs) in London (with prospective vendors, Verizon & Dell) on 16 & 17 March 2022. Those meetings are alleged to have occurred between the date of the OH assessment (10 March 2022) and OH report (18 March 2022) [333-335/353-355]. The OH report recorded Mr Manshausen was working five half days a week at home and suggested he move to five full days a week. It stated a review would take place after 5 weeks to advise on his gradual introduction back into a hybrid model of working. Given those meetings that took place before 21 April they were during or around the time of the end of the phased return. The acts that found this complaint predated the first protected act on 24 May 2022 and so any victimisation complaint must fail.[162]Whilst Mr Manshausen could have attended those meetings remotely it is understandable that he was not expected to have attended either on an in person or remote basis and thus the staff who had been undertaking those projects in his absence continue to attend and report back.[163]We would have expected that as a highly experienced senior manager who had been absent for 6 months or so one, that one of the reasons for the lengthy phased return was to allow him to get used to working again and to allow him up to get up to speed with what had happened during his absence and what was happening at a pace that was right for him. We would therefore have expected Mr Manshausen to have substantially inputted into that pace via his feedback to OH.[164]Mr Manshausen and Mr Purewal both accept there were regular 1-2-1s between the two. Mr Manshausen accepted he held meetings with his reports and they updated him on the work they were doing and the meetings with clients they were attending the projects they were working on.[165]Irrespective whether there were failures on Mr Purewal’s part to provide a structured updating of Mr Manshausen upon his return so he was brought up to speed on all the work his reports had done and Mr Purewal had done or were in the process of doing, as a senior - 43 - manager we would have expected Mr Manshausen to have taken the lead on and to have ascertained the current position on any work his reports were doing, what they done in his absence and what they are in the process of doing.[166]Mr Manshausen raised that at his 1-2-1 on 31 March and in his grievance of 24 May. Notwithstanding the phased nature of his return and despite him not having returned full time by then, by the time of the 1-2-1 on 31 March, we find that Mr Manshausen should by then have been familiar with what was occurring at in relation to the work his reports were doing and the meetings they were attending, with whom and whether he wished or was able to attend them.[167]Whilst he told us he could only ask to attend if he was aware of meeting in advance, he did not tell us which meetings he only became aware of in retrospect. Whilst he states he raised that with his managers he did not say he did that he did so with his reports and instructed them to tell him. Nor did Mr Manshausen assert that him having been asked to attend any meeting that was refused. Having accepted as he did, he was being updated, his failure to take positive steps may have suggested to his reports and others that he was content with the position.[168]At the time of the meetings under this complaint Mr Manshausen was still working 5 half days per week and so it is perfectly understandable that whilst he was not expected to attend those meetings he could have asked to do so if it was appropriate (see for example (174, 187 to 189)). He has not adequately addressed (where he was aware of those meetings in advance) why he did not, where it was possible for him to attend or if it was appropriate for him to do so or that he had sought to do so. Given he did not attend and accepted his attendance had not been refused at any meeting we find he did not make such requests. We find Mr Manshausen has failed to demonstrate that he was excluded from those meetings. Those are essential prerequisites even before we consider IMI’s motivations for its alleged actions. We address the later issue further below but this complaint fails at the first stage.[169]Complaint 4 concerns the informal removal by Mr Purewal of Mr Manshausen’s direct reports and complaint 6(ii) relates to 1-2-1s between Mr Purewal and Mr Manshausen’s direct reports on 2, 16, 22 & 29 March, 21 April, 13 May, 21 June, 14 July & 3 August 2022. We thus address them together.[170]By the time of the 31 March 1-2-1 Mr Manshausen was of the view his role had been undermined due to 170.1. the IMI’s failure to implement the proposed structure for IT Department / the reduced the size of IT department 170.2. his perception that Mr Purewal created a loss of seniority and effective demotion by the informal removal of C’s direct reports (caused by SP meeting with them directly) and Exclusion of Mr Manshausen from internal & external meetings[171]We found above that was not the case and that following Ms McKone’s appointment, she and then Mr Purewal had had far greater involvement in Mr Manshausen’s team. Mr Manshausen has not shown by reference to the period before his absence that either Ms McKone or Mr Purewal were not holding similar meetings with his direct reports.[172]In oral evidence Mr Manshausen accepted that the reason Mr Purewal had 1-2-1s with Mr Manshausen’s direct reports was that he was not there when they needed help, that this was not to cut him out but to address issues as they arose and was not to exclude him. Further, Mr Manshausen accepted in evidence he continued to have 1-2-1s with his reports, that Mr Purewal did not stop him or others managing their line reports. - 44 -[173]In any event any meetings that took place up to and including 21 April were still during or around the time of the end of the phased return. It is therefore understandable that as far as Mr Purewal had been responsible for overseeing directly the work of Mr Manshausen’s direct reports during his absence that pending Mr Manshausen’s return from a full-time basis that he continued to do so and in doing so.[174]In relation to one of the withdrawn complaints Mr Manshausen accepted that he had specifically delegated this to one of his reports, Paul Sigston, because it was routine and that his pursual of that argument undermined his claim.[175]Those matters aside, given some one-to-one meetings with Mr Purewal are alleged to have continued after Mr Manshausen’s grievance (which was the point we determined set in chain the redundancy process that followed) we scrutinised those meetings.[176]The meetings after 29 March took place approximately every 3 to 4 weeks or so, were held at relatively short notice and were brief. The drop off in the frequency of those meetings after Mr Manshausen’s return to full time working supports the arguments IMI raise as to the reasons for them.[177]We find that some were held to address specific questions where say Mr Manshausen could not be contacted rather than one-to-one meetings in the full sense of regular and/or strategic updates between a manager and his or her reports.[178]We note that whilst from late April-mid May Mr Manshausen was working full time he was, like other senior staff working on a hybrid basis and not in the office every day. He also underwent medical appointments and so we accept he may not have been able to be contacted at short notice.[179]Given Mr Manshausen categorised them as 1-2-1s we considered if these were formal 1- 2-1s as a line manager would have with his or her reports in the form of appraisals or formal reviews or something less structured such as Mr Purewal seeking regular updates from Mr Manshausen’s reports and/or if it was reasonable for Mr Purewal to do so. In particular, did Mr Purewal hold those 1-2-1 meetings because he wanted to ensure he was kept up to date/in the loop, because he had already decided to dismiss Mr Manshausen or for some other reason.[180]Mr Purewal told us in Mr Manshausen’s absence he had absorbed some of Mr Manshausen’s work and members of his team had taken on other tasks [SP/17-39]. He stated he only had to intervene occasionally with the work that they were doing [SP/58].[181]We find Mr Manshausen had formed the view by the 1-2-1 on 31 March that his role had been diminished, it was due to his cancer and/or absence and that continued on his return. He saw subsequent events through that prism. Based on the evidence we heard and our findings on Issues 3, 6(i),this issue (4 & 6(ii)) and the reminder of 6) we find he was not entitled to come to that view.[182]Whilst Mr Manshausen accepted his view of some his complaints under this head were flawed and withdrew of several of those complaints. the question for us does not concern whether Mr Manshausen’s perception of those meetings. What we principally need to consider is IMI’s reasons for acting as it did.[183]Whilst for the reasons we give at various points we place very little weight upon the account of Mr Purewal, we find Mr Manshausen has not shown he was treated any less favourably than any non-disabled colleague who returned from a long absence and whose work was being covered by a mix of his manager and his reports. We find here that IMI had been covering his work by a mix of staff and that continued during his phased return and in relation to tasks ongoing during it, thereafter. Similarly, in relation to the 1-2-1s held - 45 - by Mr Purewal. The frequency and timing of them correlate to the stage Mr Manshausen’s phased return had reached (and the fractional nature of his attendance) and diminished thereafter such they were consistent with reporting on assigned tasks and the increased involvement we found Mr Purewal had from when he became Mr Manshausen’s line manager.[184]In any event we find those acts were in no sense done because of Mr Manshausen’s disability, his absence from 21 June 2021 to 12 January 2022, his part absence during the phased return running from 12 January 2022 until to 30 April 2022, his need to attend medical appointments on an ongoing basis or his grievance (the events he complains about having commenced before the grievance was lodged and formed part of it). We find it was for the reasons we give at (171 to 181).[185]These complaints fail.[186]Complaints 6(iii-vi) relates to Digital Factories meetings with PwC, McKinsey, Ernst & Young and Verizon). All these meetings (16 & 17 March, 27 & 28 April, and 5, 9 & 12 May 2022) predated the protected acts and so any victimisation complaint must fail.[187]IMI told us the “Digital Factories” project was not an IT project but was about exploring the potential for greater digitisation of manufacturing processes. Mr Manshausen accepted that Ian Morris (Divisional Operations & Supply Chain Director) was responsible for it and that all the Digital Factories meetings which he claims he was excluded from were all attended by Mr Morris. A number were attended by Martin Carroll (we accept that was because there were cyber security aspects which had to be considered which Mr Manshausen accepted fell within Mr Carroll’s remit) and/or by Paul Robinson and Paul Sigston (his direct reports). Mr Purewal did not attend any of them and had no hand in arranging any of the meetings.[188]Mr Manshausen orally accepted that the meetings were all scoping discussions and that no decisions had been made to progress any initiatives. We accept whilst these were not IT projects, given they referenced IT, IT input may have been required and that was provided by Mr Manshausen’s reports. We heard and accept that Mr Robinson was the Digital and IT Transformation Director, and Mr Sigston was the IT Service & Operations Director who regularly liaised with Martin Carroll on IT cyber security matters (as Mr Manshausen himself referenced in an email [231/248]). We accept both were well-placed to provide input on “Digital Factories”.[189]We make a positive determination that the reason for Mr Manshausen’s non-attendance was because this was a project led by Mr Morris, it was at an early stage and Mr Manshausen’s input was not required. Given Mr Manshausen had regular de-briefs with his direct reports, he was thus either aware or ought to have been aware of them. If he felt he should have been in attendance he could have either attended or raised this at the time. He did not. Nor did he suggest he raised any concerns at the time with Mr Morris, Mr Carroll or Mr Purewal.[190]Whilst having made that positive determination as to the reason for his treatment that does not preclude Mr Manshausen’s disability, absence or any of the somethings (these matters predate the protected acts) from materially influencing IMI or its employees taking the steps they did. Having considered the evidence before us and despite the inferences we draw elsewhere, we find they did not.[191]Complaints 6(vii) to (x) were withdrawn. Complaint 6(x) was however run as background and we address it at (202) below. - 46 -[192]Complaint 6(xi) relates to two “Salesforce” meetings that Mr Purewal attended with Ms Lacy Serber, Vice President of Customer Experience who was responsible for this project and a senior Salesforce executive, Mr Burgess on 30 June and 14 July. Salesforce was a customer relations management system. One was organised by Ms Serber and the other by Mr Purewal [204-205/954-955].[193]Ahead of those meetings Mr Manshausen was invited by Mr Purewal to attend a premeeting discussion along Mr Robinson and Ms Rothaut on 27 June 2022 [906/956].[194]IMI asserts that having invited Mr Manshausen to attend that pre-meeting discussion ahead of the first meeting it is difficult to see how he was “excluded” from the meetings that followed. IMI classes both meetings as high level. This was not a case where one or more of Mr Manshausen’s reports attended either meeting (the attendees appeared to be of a higher level altogether) and asserts as the project was in its infancy in June/July 2022 (the Salesforce contract was not signed off until December 2022 [761/799]) it did not call for any technical IT input. We accept that was so.[195]In our view given all the attendees were senior to Mr Manshausen it is difficult to see how he can say that he was excluded as opposed to this issue being something (at least at that stage) that was something for which his or his teams’ involvement was required. The absence of any IT team members supports that and absent any evidence pointing to those meetings requiring an IT input at that point we find Mr Manshausen was not asked to attend simply because his input (or that of his team) was not required at that stage. His being briefed on the project further reinforces that. We find that was in no sense linked to his disability, the somethings or the protected act.[196]This complaint also fails.[197]Complaint 6(xii) relates to a meeting on 25 July 2022 with Wipro, a third party provider of IMI’s Enterprise Resource Planning system. Mr Robinson as IMI’s Digital & IT Transformation Director [147/163 & 392/412] was tasked along with Douglas Fry, IMI’s Head of Procurement to reduce the annual spend on this (see Mr Frye’s email of 22 July [909-910/959-960]).[198]Mr Manshausen accepted in his email to Mr Brown on 27 July [505/528] that he had met Mr Frye and Mr Purewal on 14 July and Mr Purewal had told him about the meeting and its purpose. Mr Manshausen’s own note of 18 July [478/498] shows he was aware the meeting was taking place on 25 July and that Messrs Frye and Robinson were attending. Further, as his own note attests, he was debriefed on it afterwards (27 July) [518/541]. Despite that, the way Mr Manshausen portrays that in his email to Mr Brown of 27 July [505/528] was that he only found out about it afterwards. We find that is not so and is a mis-portrayal of events by him.[199]Whilst the meeting formed part of the role of one of his reports, Mr Robinson, given Mr Manshausen had already raised concerns about his role being undermined, had he felt it was appropriate for him to attend he could have done so and/or raised this with Mr Purewal. There is no suggestion that he directly did either at the time. We accept that given he clearly forgot what he had been told about it (his notes record he had), it is more likely than not that he also failed to recall what had been discussed about it when he raised that with Mr Brown two days after the meeting.[200]Rather than that being an issue of him being undermined and despite it following his grievance and DSAR and its proximity to the date the redundancy process commenced, again, we find positively that the reason for Mr Manshausen’s non attendance was because this was not something that fell within his role but within that of one of his - 47 - subordinates, his input was not required and he was aware of and updated on it and did not raise this specifically as an issue at the time having raised being.[201]Our analysis that we relay above again applies (see for example (190)).[202]As to the withdrawn complaint 6(x) the Korn Ferry meetings were run as background only. Our findings on that topic start at (257)). Mr Manshausen agreed he was not invited to the meetings with Korn Ferry not because of his disability or a protected act but simply because it was not appropriate to have him there.[203]For those reasons complaints 4 & 6 all fail. [10] DSAR (10 June 2022) (ss.27 only)[204]This complaint relates to the refusal by IMI of the DSAR request. Mr Burden told us that he felt that the DSAR (and grievance) were a negotiating tactic in the context of the negotiations continuing (see (124) and (211)). We found by 19 May they had broken down (see (119 to 126)).[205]Even if Mr Burden is correct in that the DSAR (and grievance) were tactics to try to procure a higher settlement, he knew that would not be forthcoming. He told us that what Mr Manshausen seeking was some way away from IMI’s envelope. Given Ms Craner ’s view for Mr Burden to imply negotiations were continuing when they were not as opposed to hoping a settlement could still be reached is in our view misleading.[206]IMI accepts Mr Manshausen’s grievance [355-357/375-377] was a protected act. It seeks to assert despite that being so that the relevant players did not recognise it as such. Ms McCann dealt with it in this way:- “64. However, for the purposes of the causation test (i.e. did R subject C to any detriment “because of” a PA?) R asserts that:(a) some of the alleged perpetrators of victimisation did not know of some of the PAs relied on by C, so such PAs could not be an effective cause of the detriment complained of;(b) some of the alleged perpetrators had no appreciation of the fact that C was complaining about disability discrimination – for example, SP did not realise that C was complaining about disability discrimination until the first redundancy consultation meeting on 11 August 2022. 65. If an alleged perpetrator had no knowledge of the matter relied on as the PA, then that is the end of the matter – the PA cannot be a real or effective cause of any detrimental treatment alleged to have been perpetrated by that individual: see Scott v London Borough of Hillingdon [2001] EWCA Civ 2005, at [19] and [24]. 66. Furthermore, the person responsible for the alleged detriment must know that the complaint amounted to a contravention of the EqA and not simply that there had been a complaint in general: South London Healthcare NHS Trust v Dr Al-Ruebyi UKEAT/0269/09, at [21], and [26] to [28]. See also Taiwo/Onu v Olaigbe/Akwiwu [2014] ICR 571 (CA) at [70]. 67. However, R accepts that if the alleged perpetrator knows the content of the complaint AND that complaint is found (or conceded) to be a PA, then he/she has the requisite knowledge (by analogy with the case on protected - 48 - disclosures, Croydon Health Services NHS Trust v Beatt [2017] ICR 1240 (CA)). Nevertheless, in those circumstances, if that person did not appreciate that the employee was complaining about a contravention of the EqA, then – evidentially – it is much less likely that any part of the reason for the impugned treatment (i.e. an effective or operative cause of it) was that PA.”[207]Mr Manshausen points to two sections that reference his disability in the grievance. Primarily, “It is clear to me that my role has been increasingly devalued and that process accelerated as a result of my cancer-related absence.” but also “You should note the need to factor my health considerations into the grievance process.” [357/377][208]The grievance was considered by Mr Burden and Ms Craner. Mr Burden was IMI’s head of HR. Ms Craner held a post graduate diploma at level 7 CIPD. Whilst she says she is a generalist HR business partner and not an employee relations expert we would expect her to ether know that something that was long term i.e. lasting 12 months or more (which was almost the length of time since Mr Manshausen had been diagnosed at that point) or that cancer would have engaged the definition of disability, the definition of which being one of the basic issues upon which HR is expected to advise.[209]Mr Burden’s direct involvement in this issue is also highly relevant. He told us he had limited knowledge of day-to-day HR issues as he operated at a higher level. Again, we would have expected him in his role to be aware of those matters. We return to this starting at paragraph (212) below.[210]Mr Burden told us he asked her to take advice on the grievance. IMI had advisors it regularly used and who it instructed here. They are national well known national entity that has been advising employers for more than a quarter of a century at least to the panel’s knowledge). That advice is of course privileged. We would have expected any competent HR representative (employee relations expert or otherwise) to send the grievance to the advisor and a competent advisor to ask to seek a copy. We find that the grievance (given the reference to cancer) would have put the advisor and accordingly IMI on notice that Mr Manshausen asserted he was disabled (or at least given rise to yet further enquiries) and was raising a complaint of disability discrimination. Likewise, the length of his absence.[211]On 31 August [625/649] Mr Manshausen requested amendments to the notes Ms Craner had made of the first redundancy consultation meeting on 11 August 2022. It should be noted that in the interim he had been absent from work with COVID from 17 to 26 August 2022. When doing so he referenced that Ms Craner had acknowledged she was aware that cancer was automatically a disability for the purposes of the EqA. That was of course was a couple of months later and thus is only relevant as to it potentially illuminating her knowledge at a later point. That was not put to Ms Craner. Given that the chronology does not shed any great light on when she came by that knowledge, we place no store by that given our comments at (208 to 210) above.[212]That leads us to address the DSAR. On 10 June Mr Burden acknowledged receipt of the DSAR and informed Mr Manshausen that Ms Craner would be dealing with it on her return from leave [477/497]. On 23 June 2022 Ms Craner responded [476/496]:- “Hi Frank, Your email to Richard has been sent on to me to deal with. After reading and carefully considering your request, I can confirm we will not be responding to it. The reason for this is we consider it to be manifestly - 49 - unfounded. We do not believe you have genuine data concern and we consider it clear you have no intention to exercise your right of access. We consider the reason for this request is to cause disruption and secure a payment of a sum of money from the Company in exchange for forgoing the request. Further, we consider the scope of your request is manifestly excessive given its obviously unreasonable scope. …”[213]That is written in the plural, as though it was written on behalf of IMI collectively and did not merely express her own professional view. Mr Burden told us he had personal experience of DSARs and was thus aware of the exemption in the legislation that email referenced. He told us:- “41. I was aware that under the Act an SAR might be held to be “manifestly unfounded” if the person making it had done so in order to secure a financial settlement – in other words they were not genuinely interested in receiving the data they had requested but had only made the request in order to pressure the organisation to agree to the settlement. 42. It seemed to us that this was the situation here and so we declined to respond to the SAR on that basis. … 44. I completely deny that our initial approach to the SAR was related in any way at all to Frank’s illness and absence from work. Our response was driven solely by the fact that it appeared to us that it was a device to secure a higher settlement than we were prepared to offer. I was aware that this was a method frequently used in similar situations.”[214]Mr Manshausen challenged the response on 1 July. Thirteen minutes before Ms Craner responded on 5 July Mr Burden gave this instruction to Ms Craner :- “… draft the simple acknowledgement version and suggest you call/speak to him to ask him what on earth he is concerned about/why he is raising this and does he ant [sic.] to explain, i.e. you find his approach bizarre.” [471/491][215]Mr Burden’s position was that he refused to comply with the DSAR because he felt that was a negotiating tactic and was not aware the grievance was a protected act. We reject both arguments. Those matters aside for the reasons we address starting at (219) below the ability of a respondent to run such an argument separating the treatment and the reason for it is a limited one. We find contrary to his email to Mr Manshausen telling him that Ms Craner would be dealing with the DSAR, IMI’s initial decision of 23 June and then the follow up of 5 July were made on Mr Burden’s instructions.[216]The contrast between Mr Burden’s knowledge of DSARs and his and Ms Craner’s apparent lack of knowledge of the issue of disability, is stark. That disparity of knowledge is heightened by them having taken advice on the grievance.[217]Those matters being so we do not accept that IMI was not aware that Mr Manshausen’s grievance concerned an allegation that he was disabled, ought to be treated as such and/or had been discriminated against. We find the accounts of Ms Craner and Mr Burden were disingenuous and cause us to question the weight to give to the account of both where unsupported elsewhere. - 50 -[218]Their accounts on that issue and IMI’s failure to comply with a DSAR in the circumstances of a grievance having been raised is also a matter from which have decided to draw adverse inferences.[219]In Martin v Devonshires Solicitors [2011] I.C.R. 352 the EAT, Underhill J as he then was presiding, held that when considering the reason why the employer did the act complained of in victimisation complaints whilst a finding it was wholly or in substantial part because a claimant had done a protected act would ender the employer liable for victimisation, there were, in principle, cases where an employer had dismissed an employee in response to a protected act, but could say that the reason for dismissal was not the act but some feature of it which could properly be treated as separable. The most straightforward example was where the reason relied on was the manner of the complaint, for example an employee who made a genuine complaint of discrimination but accompanied it with threats of violence. Whilst, in Woodhouse v West North West Homes Leeds Ltd [2013] I.R.L.R. 773 Martin was not followed and it was suggested Martin was only to be followed in an exceptional case, that does not add greatly to the exceptionality identified by Underhill J himself.[220]We find the circumstances here are such that a Martin argument cannot apply. The negotiations, which we find had concluded, stemmed from the fact that Mr Manshausen considered he was being discriminated against because he had returned to work following a cancer related absence. The distinction that Mr Burden makes is not sufficiently separable here.[221]We find that having been invited to do so by IMI, the lodging of the grievance on 24 May 2022 by Mr Manshausen, marked in Mr Burden and Mr Purewal’s mind the breakdown of settlement negotiations. Whilst IMI had identified in the amended Talent Pack that Mr Manshausen’s “exit was in process” and him as a “flight risk”. That was amended on 19 May prior to the grievance. The lodging of the grievance and the subsequent DSAR (of 10 June) led to IMI forming the view that given an amicable resolution was not going to be reached that IMI would have to terminate Mr Manshausen’s employment. The various credibility issues we have identified regarding them both, and to a lesser extent Ms Craner, merely reinforce us in that view. Having stepped back and looked at matters in the round subsequent events (such as Korn Ferry and the way the redundancy was handled) reinforce that view further.[222]Given the adverse inferences we draw the burden has passed to IMI to show the reason for the refusal of the DSAR request of 10 June 2022 was in no sense whatsoever because of the protected act. We reject the explanation provided by IMI and find for the reasons we give below the grievance (and DSAR) set in chain the events that led to Mr Manshausen’s dismissal. Our findings on subsequent events yet further reinforce rather than detract from that view.[223]Accordingly, complaint 10 succeeds. [11] IMI via Mr Brown and Mr Semens-Flanagan failed to provide redress of Mr Manshausen’s grievance by failing to genuinely consider it (ss.13,[224]Mr Manshausen’s grievance hearing took place on 1 June. It was chaired by Mr Duncan Brown (who has subsequently left the business). He was accompanied by a HR Representative, Mandip Sandhu. Mr Manshausen was accompanied by Ian Morris. IMI’s minute is at [413-415/433-435]. Mr Manshausen’s amendments as signed off on 9 June are at [410-419/430-439]. - 51 -[225]Mr Brown conducted three grievance investigation meetings. One each with Mr Burden and Mr Carroll both on 14 June 2022 and a third with Mr Purewal on 16 June 2022.[226]We noted that at 9:08 on 15 June Mr Purewal arranged a meeting at 10:30 that day between him and Mr Carroll at Mr Carroll’s desk [907/957]. That was thus the day after Mr Brown’s investigation meeting with Mr Carroll and the day before Mr Brown’s investigation meeting with Mr Purewal. In response to a question from the judge Mr Purewal told us that he was aware there was a grievance but had not spoke to either that he had not spoken to Mr Burden or Mr Carroll before he received a copy of Mr Manshausen’s grievance letter [445/465].[227]Based on the documents before us we find Mr Purewal was not sent a copy of Mr Manshausen’s grievance until 22:35 on the evening of 15 June 2022 (the day before he met Mr Purewal). Using our industrial relations experience it is not unusual for the alleged perpetrator to be sent a copy of a grievance in advance of a grievance investigation meeting so the individual is not taken by surprise but that is by no means what happens in all instances.[228]Whilst it does not follow that when Mr Purewal arranged that meeting he was aware Mr Carroll had been spoken to as part of the investigation by Mr Brown, for two individuals who spoken to as part of an investigation to speak to each other, after one has been interviewed but before the other has been, is unusual and would require given the timeline here an explanation.[229]When Mr Purewal was asked about what he and Mr Carroll spoke about on 15 June he told us he could not recall the specifics as it was two years ago. When pressed on whether Mr Carroll had told him if Mr Manshausen’s grievance had been discussed he accepted it may have been. It was then put to him by Mr MacMillan that he had seen the grievance letter. That sequencing issue was immediately corrected by the judge. Mr Purewal again accepted that the contents of the grievance may have been discussed but he hadn’t seen the minutes or the grievance letter.[230]Given Mr Purewal went on to say he was quite surprised he was the subject of the grievance given he felt he had always had a reasonable working relationship with Mr Manshausen we find it all the more surprising he could not recall why that meeting was held or what was discussed.[231]Whilst those events were two years ago, they went go to core issues in this claim. This was not the only instance where Mr Purewal was unable to recall detail of highly relevant matters. Further, he fundamentally changed his account on another core issue (see (269)). His account was also generally vague as to events in our view. Given those points extend across the depth and breadth of his account, and notwithstanding those events were two years ago, we place little weight on his account, where unsupported.[232]Mr Brown was chased by HR on various occasions for his outcome. On 18 July 2022 Mr Brown sent his draft grievance outcome (which was identical to the final version save for the date and Mr Manshausen’s address) to Ms Sandhu (HR) and Ms Craner seeking their observations [479-482/499-502 and 482A-482C/503-505].[233]On 22 July 2022 Ms Sandhu responded stating it looked fine to her and covered the main points of Mr Manshausen’s grievance but asked Ms Craner if Mr Brown as okay to send that directly to Mr Manshausen or wished he share a copy with Mr Burden first (if she had not already done so) [496-497/519-520] - 52 -[234]At 15:50 on 27 July Mr Manshausen emailed additional information to Mr Brown requesting he consider new facts which supported his grievance. At 15:53 Mr Brown responded to Mr Manshausen [504-505/527-528] stating:- “let me consider this alongside the material I already have”[235]At 15:54, Mr Brown emailed Ms Craner and Ms Sandhu [509/532] stating:- “I was about to put my letter to Frank in the post; I will with-hold it to avoid an impression of not taking his latest details into consideration. Let’s catch up.”[236]The grievance outcome [519-521/542-544] was sent out by Mr Brown at 17:31 (1 hour and 41 minutes after Mr Manshausen’s additional information was sent to him). In the covering email [510/533] Mr Brown stated:- “Further to my earlier email, I have considered things further and as I had already concluded my investigation and written my letter of findings, I think it is better that I share this with you now. As you have the right to appeal my findings, it seems to me better that any further information that you want to share should be dealt with as part of any such appeal.”[237]Mr Manshausen asserts [FM/79.4] amongst other matters the outcome letter was broadbrush, failed to analyse properly if his role had been devalued and that he had been excluded and bypassed.[238]On 3 August 2022 Mr Manshausen submitted an appeal against the grievance outcome and requested a re-hearing [540-545/563-568]. The request for the re-hearing of grievance was rejected by IMI on 4 August 2022 [547/570].[239]A grievance appeal hearing was chaired by Mike Semens-Flanagan (MSF) on 2 September 2022. The invitation letter is at [603/626]. Mr Semens-Flanagan was accompanied by Samantha Gudsell of HR. Mr Manshausen was not accompanied. IMI’s minute is at [635-639/659-663]. Mr Manshausen’s amended note at [640-644/664-668].[240]The grievance appeal outcome [681-683/705-707] whilst dated 8 September 2022 was not sent to Mr Manshausen via email until 14 September 2022 [712-713/736-737].[241]Within it, Mr Semens-Flanagan summarised Mr Manshausen’s complaints under 8 heads, the original grievance complaints:- 241.1. A devaluation of his role within the business. 241.2. Inadequate discussion on, and communication of, structural changes in the business. 241.3. His exclusion from business discussions/meetings on his return to work following his treatment[242]Mr Semens-Flanagan then focussed on the grounds of appeal:- 242.1. Unreasonable length of time given to appeal grievance outcome 242.2. The process did not adequately address the lack of communication regarding restructure 242.3. the grievance outcome did not adequately address your concerns regarding the devaluation and demotion of your role 242.4. Additional information provided to Duncan Brown was not taken into consideration and - 53 - 242.5. the Subject Access Request was refused[243]Mr Semens-Flanagan told us he agreed that Mr Brown “had not dealt in any particular depth with the claimant’s concerns about his role” [MSF/20] and so he therefore took time to investigate this part of the grievance. Having done so he told us he was satisfied that whilst it may have been that Mr Purewal and his predecessor had approached their roles in a different way to Mr Ward, there had been no erosion of Mr Manshausen’s responsibilities. Having accepted Mr Manshausen’s point with regards to the complaint at (242.1) he recommended changes but concluded that it made no difference to the outcome.[244]He also accepted with regard to the point set out in (242.3) that the analysis was lacking but having investigated further rejected the substance of that complaint. As to (242.4) he accepted it appeared that had not been taken into account, it had not but again having investigated further rejected the substance of that complaint. As to the point set out in (242.5) having commented on the broadness of the request that it had in any event been escalated to the ICO but he noted that did not form part of the original grievance and thus had no impact on it. As to (242.2) he found Mr Manshausen had been involved in the process, had knowledge of the changes but there was no tangible reduction in the CIO role, but on the contrary the regional IT divisions then became part of the CIO accountability which indicated an increase in remit.[245]Accordingly, he upheld the original decision.[246]In our judgment he was a frank, genuine and honest witness.[247]We agree with Mr Semens-Flanagan that Mr Brown came to did not adequately consider Mr Manshausen’s grievance. We find Mr Semens-Flanagan did. His outcome came to much the same views on issues [3], [4] and [6] as we did.[248]This complaint is argued as direct, discrimination because of something arising from disability and victimisation.[249]As to the victimisation complaint whilst it was accepted the grievance was a protected act no other protected acts preceded it. We find failing to properly address the grievance as we find Mr Brown did was an act of detriment. Any worker would objectively view that in that way.[250]Unlike Mr Burden and Ms Craner, we do not consider Mr Brown (or Mr Semens-Flanagan) would have realised absent specialist HR or legal advice Mr Manshausen’s grievance was a complaint of disability discrimination. Whilst that advice was available that that was not pointed out in a case such as this cannot found the necessary link to provide the “reason why”. Absent this and following the legal analysis set out in Ms McCann’s submissions as relayed by us at (206) above that complaint must fail.[251]The victimisation complaint must also fail for another reason. It is difficult to see how the way the grievance was addressed by Mr Brown was itself due to the raising of the grievance. In her submissions Ms McCann said this in the subject:- “73. An employer’s failure to investigate a complaint of discrimination or harassment will not constitute victimisation unless there is a causative link between the fact of the employee making the EqA complaint and the failure to investigate it (A v Chief Constable of West Midlands Police (EAT0313/14/JOJ). It is, of course, insufficient for the PA to be a ‘but for’ cause. - 54 - 74.Langstaff J (then President of the EAT) observed that it is difficult to contemplate how a failure to hear a complaint fully could be caused by the making of the complaint in the first place. If the particular nature of the complaint (i.e. as an EqA complaint) meant that it would not be discussed or dealt with in a way in which other (non-EqA) complaints would, it is possible for a tribunal to conclude that this was a deliberate omission and, if it caused the employee a detriment, it could come within the scope of victimisation. 75. Again, if – as here – the grievance (albeit, in law, a PA) is opaque such that the grievance manager (DB) and/or grievance appeal manager (MFS) did not appreciate that a complaint of disability discrimination was being made by C, then it is extremely unlikely that the PA was an effective/operative cause of the grievance outcome.”[252]The victimisation complaint must thus also fail for that reason.[253]As to the section 15 complaint Mr Manshausen has not asserted how it is that Mr Brown was aware 253.1. Mr Manshausen was absent because of cancer treatment from 21 June 2021 to 12 January 2022 253.2. Mr Manshausen was partly absent from work during a phased return running from 12 January 2022 until to 30 April 2022 and 253.3. Mr Manshausen had to attend medical appointments on an ongoing basis. such that that could be the cause of him acting as he did.[254]Based on the evidence before us we find there was no such link. Whilst Mr Brown did fail to address the grievance as he should we decline to draw any inference that was because of the something(s). Those were failures that could have been done by any manager and thus were not necessarily linked to the something(s). Whilst he found there were failings on Mr Brown’s part Mr Semens-Flanagan came to substantively the same views that Mr Semens-Flanagan (and we) came to and when doing so determined the failures did not affect the outcome. Nor did the evidence before us suggest that Mr Brown was acting in concert or influenced by Mr Burden and/or Mr Purewal. That complaint fails.[255]As to the direct discrimination complaint we find that there was no less favourable treatment than a comparator; Mr Brown’s failures were failures to address matters properly and he would have behaved in the same way to anyone, disabled or not. Mr SemensFlanagan did not repeat those failures and remedied the issue regarding substance and as to how he approached it.[256]Looking at matters another way we find the evidence before us does not suggest that those failures were in any sense linked to Mr Manshausen’s cancer, nor were they aware that Mr Manshausen’s cancer was a disability (see (250)). Whilst those failures are matters from which we could draw inferences as are the actions of Mr Purewal, Mr Burden and Ms Craner, the conclusions Mr Brown came to were the same as those Mr Semens-Flanagan (and we) also came to. He was entitled to form those views. We decline to draw those inferences. That complaint also fails. Korn Ferry[257]Before we address the redundancy process, we first turn to IMI’s engagement with the external recruitment consultants, Korn Ferry. - 55 -[258]Whilst he does not say when, Mr Burden told us :- “15. I also had an informal discussion with Korn Ferry, one of the headhunters we used for senior roles, to see whether they would be able to source candidates for Frank’s role if the need arose – pages 466-467”.[259]The page referenced in the bundle related to an email sent late afternoon on Friday 1 July sent by Korn Ferry to Mr Burden as a follow-up to a meeting with Mr Burden on Monday 27 June. The email’s subject was headed “KF Contacts for IT search” and read:- “David and I really enjoyed meeting with you earlier this week and hearing more about the IMI Precision Engineering IT Director role. David and I feel we are well placed to help you with this search and just wanted to follow up regarding potential next steps and if you need anything from us ahead of that?”[260]That was followed in the bundle [466/486] by a document headed “ClO/IT Director — key focus areas, for discussion”. It was marked “© Korn Ferry” suggesting it Korn Ferry had prepared it.[261]Mr Burden responded in the late evening of Monday 4 July “Thanks Freddie, I enjoyed the conversation. I’m travelling in Asia this week with Sukhjit so we’ll arrange the call for next week and be in touch.”[262]Mr Purewal told us he was not aware of the meeting on 27 June prior to being told of it during the visit to Asia with Mr Burden. He stated he was also made aware that another meeting was planned for 22 July for a “recruitment catch up” by Heidi James on behalf of Mr Burden. That was organised on 13 July,[263]In the context of the meeting having been organise don 13 July to take place on 22 July Mr Burden was asked if redundancy had been discussed on a business trip to Asia Mr Burden and Mr Purewal had both been on. He told us he couldn’t recall exactly when that was but by time of that meeting Mr Purewal was minded not to go with role. We date the view Mr Purewal formed to some time before 22 July. That dates that view to 2½ weeks before Mr Manshausen’s at risk meeting on Tuesday 9 August 2022.[264]Despite that Mr Burden still wanted to go ahead with the Korn Ferry meeting. He told us that was because Korn Ferry had done research regarding IT departments and the role of CIOs and they should attend because there were interesting things to talk about.[265]In his witness statement Mr Burden told us [SP/17-18] that some time after the discussion with Korn Ferry Mr Purewal spoke to him about Mr Manshausen’s role. He believed that conversation took place in July 2022 but he kept no record of it. He stated that Mr Purewal had said that “… Frank’s comments about his role had set him thinking more deeply about it. He said that on reflection he felt that actually Frank’s role might not be needed. He thought he could absorb some of the responsibilities himself and others could be passed to members of Frank’s team. After this conversation, I contacted Korn Ferry out of courtesy to explain that we would not be progressing with this recruitment.”[266]In his statement he references the discussion with Korn Ferry by referring to Korn Ferry’s email of Friday 1 July [466-467/486-487] which in turn referenced the meeting Mr Burden had had with Korn Ferry on Monday 27 June. - 56 -[267]After the meeting on 22 July a further meeting was arranged with Korn Ferry on 12 August 2022 at which both Mr Purewal and Mr Burden were noted as required attendees [953/1003]. Mr Burden told us he attended because this was a follow up to the previous meeting and he liked the idea of a different way of (re-)organising the department but Mr Purewal did not as he had decided not to proceed. Mr Burden told us he wanted to thank them for their time and proposal and they had given us things to think about but IMI was not in a position to go ahead at that point.[268]In his original witness statement Mr Purewal stated “37. I have no knowledge of the subject matter of the eighth item [Korn ferry].”. He revised that when adopting his witness statement to say “37. I am aware of the subject matter of the eighth item. HR made contact with Korn ferry, a recruitment agency, initially in late June 2022, in case we needed to recruit for a CIO role in the future. This was because Frank had expressed his dissatisfaction with the role and I had assessed him as a flight risk. This was prior to the redundancy consultation. We did not ultimately engage Korn Ferry to conduct a recruitment exercise for the CIO role. I ref to pages 328, 466, 611, 952 and 953.”[269]What Mr Burden told us aside, Mr Purewal’s initial and the revised account he gave in his witness statements were entirely at odds. Given it is on record that he attended one meeting it is simply inexplicable he gave his initial account. It suggests he did not read the bundle or consult his diary/calendar. He told us he did not cross reference enough. Those matters and the fact that he was prepared to make such a bold assertion that he had no knowledge rather than he could not recall leads us when combined with the vague account he gave generally (see (229 & 296)) to give his evidence little or no weight save where supported elsewhere.[270]On 16 August Korn Ferry emailed Mr Burden under the subject “Global IT Director LoE” saying “… attached proposal for this search. I have matched the terms we have used previously but please do give me a call if you have any questions”. The attachment was not before us [610-612/633-635]. That was followed up by a chaser email on 19 August from Korn Ferry to which Mr Burden replied about 30 minutes later “Sukhjit and I haven't had chance to catch, will do early next week, have a great weekend.”[271]The emails of 16 August were sent one week after Mr Manshausen was placed at risk of redundancy. Mr Manshausen rightly suggests the timeline in which those discussions took place coming before and continuing after he was placed at risk potentially support his suggestion IMI was already recruiting for his role.[272]If matters were as clear as Mr Burden suggested and IMI had decided not to proceed with the Korn Ferry proposal it would have been a simple matter for Mr Burden to say so. Instead, when he was asked why he didn’t reply to indicate to Korn Ferry that IMI had decided it wanted something different Mr Burden stated he wanted to talk to Mr Purewal regarding other roles and if he was going to reorganise his department. When asked what new role that related to, he replied that there was no specific role, it was if Mr Purewal decided to remove CIO role, how IMI looked those innovation issues and as it turned out that IMI did not.[273]Mr Burden confirmed that the reference to “matching the terms we have used previously” in Korn Ferry’s email of 16 August was a reference to terms of payment and that still related to a Global IT Director. That led us to conclude that contrary to what Mr Purewal said in the final phrase of [SP/37] that IMI had not communicated it was not looking at such a role. - 57 -[274]The discussions between Mr Purewal and Mr Burden about Korn Ferry were also important because they also highlight the close working relationship between Mr Burden and Mr Purewal:- 274.1. Their rooms were close to each other and they spoke every day when in the office 274.2. It was accepted they discussed these matters whilst on the business trip in Asia at the start of July 274.3. Mr Burden had inputted into talent pack concerning Mr Manshausen (see (130)) and 274.4. Mr Burden personally responded to the DSAR.[275]Irrespective of what Mr Burden told Korn Ferry his oral account was that a decision had already been reached by Mr Purewal before 22 July. Given how often Mr Burden told us he and Mr Purewal spoke when they were in the office, we find it surprising that a discussion had not taken place between them by 9 August namely when Mr Manshausen had been informed he was at risk of redundancy.[276]Whilst we find IMI did not recruit for the role via Korn Ferry, the discussions with Korn Ferry do shed light on IMI’s thinking on that issue and again, it is a matter which would require an explanation and potentially something from which inferences of discrimination could be drawn.[277]Whilst the first three of the matters we list at (274) are not unusual in themselves given the senior roles both played, the proximity of those discussions to the announcement that Mr Manshausen was at risk of redundancy, that rather than leaving the DSAR to HR, Mr Burden’s direct involvement, Mr Burden’s subsequent involvement in the dismissal appeal (despite his involvement in the talent pack and exit discussions) all cast doubt on his judgment in accepting that role and thus of his independence.[278]Mr Purewal’s account in relation to Korn Ferry changed entirely.[279]The issues concerning the accounts of Mr Purewal and Mr Burden lead us to cast doubt on whether we should attach any weight to the comments of both witnesses on the issue, draw adverse credibility findings and/or adverse inferences from them generally. Given the lack of weight we give to the evidence of Mr Purewal and Mr Burden, save where supported elsewhere, we find that on balance IMI via Mr Burden had not ruled out i.e. was still considering recruiting externally as of 16 August. We reject given the lack of weight we place on his evidence the rationale Mr Burden gave for holding the meetings with Korn Ferry (to explore Korn Ferry’s research regarding changes to the CIO role in the marketplace).[280]As will become apparent and for the reasons we give next, we concluded the redundancy exercise was a sham. [14] The redundancy process (s.27 only)[281]On 9 August 2022 Mr Manshausen told us that at the end of a weekly catch up (at points this was described as a catch up call) between Mr Purewal and his reports, Mr Purewal’s other reports having left the meeting, Ms Craner joined Mr Manshausen and Mr Purewal. Mr Manshausen states that he was told by Mr Purewal “it would not come as a surprise to me and that it became clear during my sickness absence and since I had returned that the Respondent’s IT department could be managed without me (please see my contemporaneous notes at … - 58 - [and] that my role as CIO had been placed ‘at risk of Redundancy’ and that a ‘Redundancy consultation’ was scheduled for 11 August 2022 ….”. [FM/86].[282]Whilst notes of that meeting [558-560/581-583] in Mr Manshausen’s notebook are almost impossible to decipher, on our reading they refer to the roles “being merged” (although that may a reference to the weekly catch up meeting that preceded the at risk meeting) but make no reference to the words Mr Manshausen says were used in his witness statement [FM/86-86.3]. In his email at 5:00 pm that day to Mr Purewal and Ms Craner [562/585] Mr Manshausen asserted that Mr Purewal had said that during Mr Manshausen’s sickness absence it had become clear the IT department could be managed without him.[283]Despite Mr Purewal having Ms Craner there as a notetaker IMI made no notes. It says that was because a script was used [561/584] and both Mr Purewal and Ms Craner say Mr Purewal rigidly stuck to it. When asked about the script being created on 11 July 2022 both explained that was merely a typo. Ms Craner told us rather than using a template she had drafted it afresh. Those explanations do not address why no note was made to address any comments or reaction from Mr Manshausen.[284]When Mr Purewal received that email, he left it to Ms Craner to respond but copied Mr Burden in [563/586]. Ms Craner’s initial response was to merely send a routine notice of at risk letter inviting Mr Manshausen to the next consultation meeting. She did not refute what Mr Manshausen asserted had been said until her email of 11 August [586/609] (the day of the first consultation meeting proper) when a typo aside she attempted to reassure him that his “… absence during 2021 had absolutely no bearing on our decision to bring this proposal forward. We are looking solely at the most efficient way of providing the relevant support to the business.”.[285]Mr Manshausen responded the following day [586/609]:- “I do not accept your points below regarding my role and sickness absence. The connection was apparent to me and has been for some time. Clearly it is pertinent that it was raised by the business in our first redundancy meeting; that cannot be un-done by subsequent denials.”[286]Given that near contemporaneous email of 5:00 pm the same day [562/585], that lack of refutation by IMI at the time, the lack of its own note and our findings about the lack of weight we give to the evidence of Mr Purewal and Ms Craner we find that Mr Purewal had said that Mr Manshausen’s sickness absence it had become clear the IT department could be managed without him. The fact that a similar comment was made by Mr Purewal to Mr Shook in January (see our findings starting at (153)) merely reinforces that view.[287]Whilst that is a matter from which inferences of discrimination could be drawn and notwithstanding Mr Manshausen’s absence, phased return and need to attend medical appointments etc. we find they were not the reasons for IMI acting as it but rather that it was the breakdown of the negotiations concerning his exit as crystalised in his grievance (and the subsequent DSAR). We say that for the following reasons.[288]We find that following the 1-2-1 discussion with Mr Purewal at the end of March IMI ensured the talent pack identified that Mr Manshausen was exiting the business. We address our concerns about the limited weight we should give to those performance issues for the reasons we give starting at (129).[289]The discussion at the 31 March 1-2-1 emanated from Mr Manshausen. Whilst IMI alleges Mr Manshausen was underperforming prior to then and he accepted he had been coached - 59 - there was no evidence before us of a formal performance management process as good practice dictates. Mr Burden stated that is not what occurred for managers of Mr Manshausen’s level. Whilst that may be so, Ms Craner could not explain the absence of it. That conflict was one of several between the two.[290]Given our findings starting at (129) we further find there was no real suggestion Mr Manshausen’s departure was likely prior to the March 1-2-1 despite the reorganisation following the customer first programme. The closest we come to that is Mr Purewal’s suggested an interim replacement would not be required but that would be reviewed in Q1 (see (155 to 157)).[291]Whilst there appeared to be historic performance issues they were not relayed to Mr Manshausen and no performance process was put in chain. He was ultimately dismissed for a very different reason redundancy. Both cause us to doubt if the view relayed was a fair one. Mr Purewal was aware that IT was an area that stakeholders could unjustifiably complain yet provided no real evidence before us to support the assessment he gave for Mr Manshausen or challenge the views others had reported to him. Given the absence of that explanation and the little weight we place on Mr Purewal’s account. We find that was merely an attempt to bolster support for the role being redundant.[292]We find the way Mr Burden attempted to portray negotiations as continuing was an attempt to downplay matters and the contrast between his knowledge on the DSAR and his (and Ms Craner ’s apparent lack of knowledge regarding disability despite him instructing her to get advice on it) both called into question his credibility. Similarly for Ms Craner as an experienced HR professional.[293]Mr Burden’s personal involvement with the DSAR and the subsequent grievance appeal when in our view his previous involvement clearly called into doubt his independence, and close working relationship with Mr Purewal reinforce our concerns not only concerning his motivation but given our conclusions from paragraphs (260 to 279) and the lack of weight we give to each lead us to conclude that each had a far greater aware of the other’s actions than they say. Mr Purewal in relation to Korn Ferry and Mr Burden in the matters underlying the grievance and the dismissal.[294]Looking at matters in the round and despite the countervailing arguments we conclude that following the breakdown of the settlement negotiations and IMI had decided Mr Manshausen had to go. We find the grievance (and DSAR) were critical in IMI coming to that view, whilst prior to them a settlement was still possible, the invitation to Mr Manshausen to raise a grievance and him calling their bluff (if that is what it was) was the catalyst.[295]Later events including the redundancy process (which we turn to in a moment) and the events subsequent to Mr Manshausen’s dismissal, including the appointment of a successor and alternative roles that we address starting at (301) below, reinforce that view.[296]As to the redundancy process, Mr Manshausen alleges in addition that just after the “at risk” meeting on 9 August Mr Purewal spoke to Mr Manshausen’s team telling them that Mr Manshausen “will be leaving in a few weeks”. Whilst Mr Purewal accepts the “script” for that meeting records that he would be speaking to Mr Manshausen’s team, Mr Purewal consistently denied telling Mr Manshausen’s team this asserting at the 11 August meeting that. He emphasised when he spoke to the team, that this was a proposal and the role was only at risk of redundancy. He states that it was beyond his control how they may have chosen to interpret that [577/600]. - 60 -[297]IMI suggest Mr Manshausen’s account about this point has been inconsistent/changeable over time and undermines his case:- 297.1. At the redundancy consultation meeting on 11 August Mr Manshausen said that his team told him that “the writing is on the wall” [575/598] and asked him “how long you will still be there/when you be leaving?” [577/600]. Thus, Mr Manshausen did not allege that Mr Purewal had told the team that Mr Manshausen “will be leaving in a few weeks”. 297.2. The first time Mr Manshausen raised that he had been told by the team that they had been told that he “will be leaving in a few weeks” was at the redundancy appeal stage via an email of 28 September [734/758]. Mr Manshausen then told Mr Burden that it was Mr Sigston who had informed him of this. 297.3. Mr Manshausen’s handwritten notes of his conversation with Mr Sigston on 10 August 2022 [560/583] make no reference to Mr Purewal having told Mr Sigston that Mr Manshausen would be gone in three weeks. They do refer to Mr Sigston commenting that Mr Purewal was always looking for headcount cuts; and that Mr Purewal had got rid of the Divisional CIO role at IMI Critical Engineering). 297.4. When Mr Burden interviewed Mr Sigston on 13 October (which Mr Manshausen accepted in cross examination were open, non-leading questions) Mr Sigston stated that Mr Purewal did not mention any particular timeline, instead that there was a process to be followed and that the CIO role was to be made redundant and he understood there was a difference between a role being redundant and a person being redundant [759A-B/796-797].[298]Any account Mr Manshausen relays of what was said by Mr Purewal at that meeting is at best second hand and denied not just by Mr Purewal but also by Mr Sigston, Mr Manshausen’s account has changed and is unsupported by his notes. We find on balance that on this issue the words “will be leaving in a few weeks” were not used and further the other comments alleged were interpretations placed on what was said by third parties or by Mr Manshausen as they were in the process of being relayed.[299]As to credibility generally the issue relating to the relaying of what was said we find are specific to that issue and thus save where other issues might arise do not cause us to cast doubt on the credibility of Mr Manshausen’s account where he was present other than where a specific issue arises. We accept in some instances he drew links where none were to be drawn regarding his disability/absence/the something/protected acts and detriments but that is not unusual and does not detract from our findings on other points we relate to the reason IMI and its actors behaved.[300]As to the announcement of dismissal by Mr Purewal before Mr Burden’s dismissal appeal outcome was communicated, we reject Mr Purewal’s assertion that he knew nothing about this – if he did not, the risk of an announcement raising matters that might be viewed with suspicion mean a well advised employer such as IMI was meant he should have known when it was going to be. In any event we did not consider him to be a credible witness for the reasons we give above and also those below regarding amongst other matters the interim appointment of Martin Carroll (see our findings starting at (307) below). - 61 - [18] Mr Manshausen’s dismissal (s.98 ERA & ss.13, 15 & 27 EqA) & Events subsequent to Mr Manshausen’s dismissal[301]We address these together because of impact subsequent events have on informing our decision as to the dismissal. Mr Burden’s appointment to hear Mr Manshausen’s appeal against dismissal[302]Given the involvement of Mr Burden in Mr Manshausen’s settlement negotiations, them taking place on the basis Mr Manshausen was exiting the business, his rejection of the DSAR and the reasons for it, his involvement in the discussions with Korn Ferry and his close working relationship with Mr Purewal (and the conclusions we draw at paragraphs (274 to 279 and elsewhere) we find it surprising he felt he was sufficiently independent to hear the appeal. Him doing so reinforced yet further our concerns as to the weight we should give to his evidence his account generally. Our findings on the following points reinforce that yet further. The announcement of C’s departure[303]In his announcement of Mr Manshausen’s departure of 19 October 2022 [769-770/807- 808] Mr Purewal stated that Mr Manshausen had “… left the business to pursue new opportunities outside IMI. … With immediate effect, Frank's direct reports, Paul Robinson. Paul Sigston and Astrid Rothaut, will now report directly to me.” That announcement made no mention that Mr Manshausen was redundant. An email sent by Mr Purewal the following day (20 October 2022) to his direct reports and a number of others attached the announcement and stated that “… the CIO role in Precision was made redundant. I believe most of you are aware anyway. Please feel free to cascade on to your teams as needed.” [771].[304]The dismissal appeal outcome from Mr Burden was not sent to Mr Manshausen until 21 October 2022 (by email) [772-774/810-812]).[305]Mr Purewal told us he was not aware Mr Burden was handling Mr Manshausen’s appeal against dismissal. Irrespective of his close working relationship to Mr Burden we find it staggering he made the announcement without checking if an appeal was outstanding and if so when the decision was likely. We find the fact of and proximity of that announcement to the dismissal appeal outcome suggested Mr Purewal was either aware of the same or sufficiently confident or blaze as to its outcome to make the announcement. Either way it was insensitive and discourteous of Mr Purewal to act in that way and does him no credit as a senior manager. Those matters aside given their close working and the reasons we give at (274 to 279) we find that was fanciful for him to suggest he was not aware of the appeal. That in turn casts doubt on the independence/lack of prejudgment of Mr Burden’s handling of the dismissal appeal. The appointment of a successor[306]On 20 October, the day after the date of the initial announcement and day after the email to his direct reports Mr Purewal contacted Mr Shook (IMI Group’s CFO) via WhatsApp seeking to discuss the CIO position [276].[307]On 20 January 2023 Mr Purewal announced that that in addition to retaining his role as IMI Group Head of IT & Group IT Security Director, Martin Carroll was appointed as the Interim Head of IT for IMI Precision Engineering [809 & 814/847 & 854]. - 62 -[308]Whilst that announcement was stated to be with immediate effect the organisational charts dating from November 2022 [963/1013] before us indicate that he was recorded as already fulfilling that role by then. Mr Purewal could not tell us when Mr Carroll started to act in that role nor provide an adequate explanation why that announcement was not made almost 2 months after it took effect. Accordingly, we find Mr Carroll was fulfilling that role in November 2022 as the organisational charts suggest.[309]We find the closeness of that interim appointment and the delay making that announcement suspicious and again a matter from which adverse inferences can be drawn.[310]On 27 April 2023 Mr Purewal announced the appointment of Paul Sigston as the new permanent Divisional Chief Information Officer (CIO) of IMI [814/854]. That was essentially Mr Manshausen’s former role. The appointment of an interim to fill the role, the delay of the announcement and our various findings regarding weight of the evidence of Mr Purewal and Mr Burden against supported our finding that the redundancy process and redundancy itself were a sham. The alleged failure to offer alternative roles[311]With regards to alternative roles, it was not in dispute that at the start of September Ms Craner compiled a vacancy list of global vacancies close to the same level as the Divisional CIO role that had been approved and were open, passed them to Mr Manshausen at the second consultation meeting and to which he indicated which he was interested in [650/674]. When Ms Craner followed them up one had been offered and accepted [652 & 655-656/676 & 679-680], one was no longer being recruited to [654/678] and the third was a role Mr Manshausen accepted was not one in IT and where the recruiting manager having contacted Mr Manshausen felt Mr Manshausen’s application did not demonstrate his suitability for the role [685 & 688/709 & 713].[312]Mr Manshausen complains he was not told about a number of roles that were vacant:- Ms Rothaut’s role as Business Partnership & Strategy Director. 312.1. It was agreed that she resigned from her employment on 28 September 2022 giving three months’ notice so that she left in December 2022 - see the July 2021 organisational chart [252/269] and that at [393/412]. 312.2. Whilst Mr Manshausen suggests Ms Rothaut was replaced by Sven-Ove Schreck. On 1 November 2022 Mr Manshausen asserts Mr Purewal shared an updated IT organisation chart [958-963/1008-1013] (which Mr Manshausen states was created by Mr Purewal or his PA, Kate Brown, on, or around 25 October 2022 [971/1021]) which showed Martin Carroll as the ‘Interim’ CIO and Mr Manshausen’s direct reports, Paul Robinson and Paul Sigston and their reports. The role of another of his other reports, Ms Rothaut, (Business Partnership and Strategy) was shown as vacant. 312.3. Mr Purewal told us that Ms Rothaut was not replaced. The May 2023 organisation structure supports that [815/855]. We accept that role was not backfilled following Ms Rothaut’s resignation. A CRM Director role in the Customer Experience team. 312.4. Mr Sean Brunt was appointed to that role on 13 December 2022 [761/799]. Mr Manshausen suggests that was a role he had designed in 2021 and there was a vacancy for before his sickness. - 63 - 312.5. By the time of his dismissal, we accept this was not a role in the IT Team. Although there was a dotted line into the IT team (see November 2022 and May 2023 organisation charts [963/1013] & [815/855] IMI argues that role did not exist as an approved vacancy at the time of Mr Manshausen’s dismissal. The November organisation chart suggests that the role had been already filled. Despite it being a more junior role given that omission the proximity to Mr Manshausen’s appeal outcome IMI does not adequately address why that role was not offered to Mr Manshausen. An AMS Director role. 312.6. Whilst that role had been scoped out as part of Customer First, again IMI argues that role did not exist as an approved vacancy at the time of Mr Manshausen’s dismissal. We find that Mr Mark Stanton was formally appointed into that role in January 2023 and when it was approved as a role by IMI it was as a downgraded role; Senior Manager – Software Applications role (i.e. not a director role). That that was so is supported by the reporting line being to Mr Carroll [809/847]. Again, IMI merely asserts that role was not approved but does not address when, evidencing the same. Global End User Computing Services Manager 312.7. Mr Manshausen also complains that an IT organisation chart dated November 2022 [959/1009] also showed a vacancy for the 'Global End User Computing Services Manager' reporting to Mr Sigston yet that vacancy was never disclosed to him.[313]The failures to adequately address why those roles were not offered to Mr Manshausen aside a further issue arises. Whilst Ms Rothaut’s role was not backfilled the number of reports to Mr Sigston remained as 3 direct and 1 indirect (dotted line) whereas the November organisation charts show 4 direct reports and 1 indirect (dotted line). That suggests one of the roles had been approved by then. IMI did not indicate when or why that was so given post customer first the position was that new roles were supposed to be headcount neutral.[314]That caused us to consider (like the appointment of Mr Carroll on an interim basis and Mr Sigston permanently) if the vacancies offered and new roles approved were structured in such a way to avoid a vacancy that Mr Manshausen could (or would wish) to be appointed to. We find that they were and the points we make above concerning the interim appointment of Mr Carroll, the appointment of Mr Sigston and the other matters we mention including IMI’s failure to adequately explain when the CRM (and for that matter the AMD director) were approved is consistent with IMI’s decision that he was to be exited from the business following the breakdown of settlement negotiations.[315]As we say above, we find in those circumstances the statutory definition was not met. IMI has not shown the burden being upon it to do so, that the requirements of the business for employees to carry out work of a particular kind, whether or not in the place where the employee was employed by the employer, had ceased or diminished or were expected to cease or diminish.[316]We found above that Mr Manshausen’s redundancy was a sham. His role was not redundant. Having returned from absence and raised issues concerning the devaluation of his role, IMI categorised him as a flight risk and as exiting from the business. Negotiations about his departure having come to nought, IMI invited him to lodge a - 64 - grievance. He called their bluff and subsequently lodged a DSAR. From that moment on in our judgment (the date of the grievance) the die was cast.[317]Mr Manshausen’s dismissal was detriment treatment. He had raised a protected act and we find that the protected act set the chain of events leading to Mr Manshausen’s dismissal in train.[318]We have set out above a series of matters from which inferences of discrimination can be drawn. The burden passes to IMI to show that the protected act did not in any sense materially influence the dismissal. We found neither Mr Burden or Mr Purewal credible witnesses and do not accept their accounts. IMI has not discharged the burden that is upon it.[319]Whilst we found that following the 1-2-1 meeting on 31 March 2021 the talent pack was amended to show Mr Manshausen was a flight risk and subsequently exiting the business. Whilst the talent pack comments predated his grievance, we found at (291) no active steps were being taken to remove him from the business until he raised his grievance. Mr Burden’s position, although we did not accept this, was that negotiations were continuing. We found that it was Mr Manshausen’s grievance that set in chain the events that led to his dismissal (see (222 & 317)). The complaints IMI raised about him underachieving were performance issues that were not being formally addressed at the time. They never were. Instead, Mr Manshausen was dismissed on an entirely different basis, redundancy (or in the alternative a business reorganisation, some other substantial reason). We found at (280, 310 & 316) that that was a sham. IMI has not shown, the burden being on it to do so, that the principal reason for dismissal was redundancy or some other substantial reason.[320]Placing Mr Manshausen at risk of redundancy and dismissing him was detrimental treatment. He had raised a protected act and as we say in the preceding paragraph, we found above that it was his grievance (the protected act) that set in chain the series of events leading to his dismissal. We have set out above a series of matters from which inferences of discrimination can be drawn. The redundancy exercise and his dismissal are another. The burden passes to IMI to show that the protected act did not in any sense materially influence IMI’s decision to place Mr Manshausen at risk of redundancy. We found neither Mr Burden nor Mr Purewal were witnesses on whose evidence weight should be placed. We do not accept their accounts or their rationales. Those matters being so IMI has not discharged the burden that is upon it to show that the protected act in no sense influenced his treatment. His victimisation complaint succeeds.[321]Having made a positive determination that it was his grievance that set in chain the events that followed and that was the reason he was treated in the way he was whilst it is open for us to find that his disability and/or the somethings played in some sense a material part in the decision to select him for redundancy and to dismiss him notwithstanding the adverse inferences of discrimination that we draw, having reflected on that, we do not. We consider on the basis of the evidence we heard that his disability and/or the somethings played no part in that and that instead it was his grievance (and the decisions that led to on IMI’s part) that led to his selection for redundancy and his dismissal. For those reasons the direct discrimination and something arising from complaints fail. Out of time[322]It is not in dispute that the unfair dismissal complaint is in time. Whilst any acts that occurred before 5 September 2022 are potentially out of time we find that the delay dealing with the protected act, Mr Manshausen’s grievance, IMI’s refusal to comply with the DSAR, - 65 - Mr Manshausen’s selection for redundancy and his dismissal was conduct extending over a period, the same principal actors Mr Burden and Mr Purewal having been involved throughout. As a result, we find those acts are to be treated as done at the end of the period that included Mr Manshausen’s dismissal on 15 (not 14) September 2022 and the subsequent appeal.[323]That aside given the delay dealing with the protected act, the grievance appeal process completed the day before Mr Manshausen was dismissed, that included a complaint concerning the protected act, the grievance and the refusal of the DSAR and the emphasis parliament has placed on parties attempting to resolve disputes internally prior to commencing disciplinary proceedings we would have exercised our discretion to extend time in any event. Employment Judge Perry 12 September 2024 All judgments (apart from those under rule 52) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Employment Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment. - 66 -