Mr S Zeko v University of the West of England and others: 1400283/2018 and others

EMPLOYMENT TRIBUNALS

Case No 1400283/2018

Between

in personClaimant

Mr French-WilliamsRespondent

Before

Employment Judge Street

In person for claimant

Mr French-Williams for respondent

Date 30 May 2023

JUDGMENT

[1]in respect of associative discrimination on the grounds of disability by way of failure to make reasonable adjustments under section 21 of the Equality Act;

[2]in respect of associative discrimination by way of discrimination arising from disability under section 15 of the Equality Act; and

[3]unfair redundancy situation and procedure.

REASONS

[1]Associative discrimination on the grounds of disability by way of failure to make reasonable adjustments. 1.1. The claim made is in respect of the failure to make reasonable adjustments for Dr van den Anker. The claimant is not disabled. 1.2. By section 20(2) of the Equality Act 2010 (“the Act”), the duty arises in relation to the substantial disadvantage of the disabled person. By Case No 1400283/2018 section 21(2), the discrimination occurs if there is a failure to comply with that duty in relation to that person. The discrimination is defined as being against the disabled person. 1.3. On the strict wording of those provisions, there is no basis for a claim of associative discrimination and no authority was cited or found that would authorise one. 1.4. On that basis the Tribunal has no jurisdiction and the claim was struck out.

[2]Associative discrimination by way of discrimination arising from disability under section 15 of the Equality Act 2.1. Section 15 of the Act addresses discrimination against a disabled person. 2.2. There is no room in the express words of the statute to read the provision as authorising a claim of discrimination against someone who is not the disabled person. No authority was found or cited that would authorise a claim in respect of associative discrimination. 2.3. On that basis, the Tribunal has no jurisdiction and the claim was struck out.

[3]Unfair redundancy situation and procedure 3.1. The claim appeared to be in respect of unfair dismissal, but the claimant was not dismissed. His employment is continuing. 3.2. The claimant was himself clear that this was not a claim for unfair dismissal. 3.3. There is no jurisdiction for such a claim in respect of actions falling short of dismissal. The claim under section 111 of the Employment Rights Act 1996 is limited to someone complaining that they have been unfairly dismissed. No general jurisdiction has been conferred by Parliament on these Tribunals to explore unfair processes generally or prior to possible dismissal. 3.4. The Tribunal has no jurisdiction and the claim was struck out.

[1]By an application dated 23 March 2020 the claimant applied to set aside the Deposit Order dated 13 March 2020 on the grounds that the Deposit Order was set so high in context as to impede his access to justice.

[2]The basis of that application was that the total amount of the deposit amounted to £100 per claim and, in circumstances where the claimant pursued five claims, the requirement to pay £500 within 21 days, in circumstances where the claimant’s means was £79.45 per week constituted an impediment to his access to justice because there was a deficit of £87.21 per week.

[3]The claimant’s calculations which he relies upon in support of his application are inaccurate. The deposit for each claim, if each of the three protected characteristics were relied upon, would amount to £75, and where the claimant sought to pursue all five claims on all three available grounds he would be required to pay a total deposit of £375, not £500 as he alleged in his application.

[4]Nevertheless, setting the deposit sums at that level required the claimant to £125 a week, in circumstances where his income from universal credit was £79.45 a week, would necessarily mean that the claimant’s access to justice would be impaired as a consequence only of his financial position. And order for a Deposit must be one which a claimant is able to comply with (see Hemdan v Ishmail and another

[2017] ICR 486

, EAT).

[5]In setting the deposit sums, the Judge took into account the claimant’s savings of approximately £300. However, the claimant was simultaneously required to pay the outstanding costs orders in favour of the respondent, and the Judge overlooked the effect of that requirement when determining the appropriate sum to be paid by way as a deposit.

[6]However, the Employment Judge remains firmly of the view that the claimant’s claims as identified in the Deposit Order of 13 March 2020 have little reasonable prospect of success for the reasons given in the case management summary dated 6 March 2020. It is not therefore appropriate to set aside the deposit order. The claimant’s application in that regard is dismissed.

[7]The claimant needs to be alive to the significant financial consequences if he elects to pursue claims which the Employment Judge has determined have little reasonable prospect of success. That is the very purpose of a Deposit Order. Neither the claimant’s right to access to justice nor to a fair trial, entitles him to pursue weak or meritless claims at significant cost of time and resource to the respondent and the Tribunal without consequences. It was for those very circumstances which Rule 39 was designed, following the review of the Tribunal Rules of procedure by Mr Justice Underhill (as he then was) in 2012.

[8]Having had regard to the claimant’s means, including the fact that he receives £79.45 a week as universal credit, and has no savings of any significance, the Employment Judge determines that the appropriate level of deposit to be paid in respect of each of the claims is £10 in respect of each claim and each protected ground. In consequence if the claimant seeks to pursue all five claims on the grounds of a single characteristic he will be required to pay a deposit of £50. By extension if he seeks to pursue all five claims on the grounds of each of the protected characteristics he will be required to pay a deposit of £150. That will require him to set aside nearly half of his weekly income if he wishes to pursue all of the claims on all the grounds. It will be hard, but it will be achievable.

[9]The claimant has not identified what his weekly outgoings are in the application, and in particular has not identified whether the £79.45 is used solely to buy food or is also required to pay accommodation costs and other bills. The Employment Judge therefore operates on the basis that the credit is used for purchasing food and paying non-essential bills.

[10]The very purpose of setting the Deposit at this level is to require the claimant necessarily to consider with the utmost care which of the claims which are subject to the Deposit Order, if any, he wishes to pursue. He has other claims which the Employment Judge believes may have far more merit than those which are the subject of the Deposit Order. He may still continue to pursue all the claims of the wishes, but he will have carefully to manage his finances over the next month to do so.

[11]The respondent’s application that it should not be required to serve an amended response until such time as it is clear which of the claimant’s claims he is pursuing, whether as a consequence of non-payment of the deposit or as a consequence of their withdrawal, is a sensible one. There is no purpose to be achieved in the respondent expending time and expense in preparing a response in respect of claims that are no longer pursued.

[12]Accordingly, Order 2.1 of the Case Management Orders of the six March 2020 is varied so that the respondent does not need to file an amended response until 14 days after the deposit sums are due to be paid by the claimant. EMPLOYMENT TRIBUNALS Claimant: Simwinji Zeko Respondent: The University of the West of England and others On: 17th May 2022 Heard at: Bristol Before: Employment Judge P Cadney Representation: Claimant: In Person Respondent: Mr D Mitchell (Counsel) PRELIMINARY HEARING JUDGMENT The judgment of the tribunal is that:- i) The claimant’s claims of public interest disclosure detriment contrary to s47B Employment Rights Act 1996 as set out in claim number 1405457/2020 are dismissed as having been presented out of time. ii) The claimant’s applications for preparation time orders are not well founded and are dismissed. iii) The claimant’s application to amend claim number 1403339/19 to add a claim pursuant to s145B TULR(C)A 1992 is dismissed. iv) The claimant’s application to amend claim number 1400283/18 to add a claim of victmisation pursuant to s27 Equality Act 2010 is dismissed. v) The claimant’s application that the respondent be ordered to pay a deposit as a condition of being permitted to advance its response in claim number 1400615/2019 is dismissed. 1 of 11

[1]The claimant has presented four claims against the University of the West of England and various of its employees. Claims 1400283/2018, 1400615/2019, and 1403339/19 were the subject of case management orders made by EJ Midgely at a hearing on 31st March 2022. They are listed for a nine day final hearing in May 2023.

[2]EJ Midgley also listed claim 1405457/2020 for a preliminary hearing today to determine whether the claims: i) Had been brought out of time; ii) Whether any claim or allegation should be struck out as having no reasonable prospect of success ; iii) Whether a deposit order should be made in respect of any allegation having little reasonable prospect of success; iv) Whether the claims should be struck out pursuant to the rule in Henderson v Henderson.

[3]In addition to those matters there are a number of other issues to be determined at this hearing. i) The claimant’s application for two preparation time orders. ii) The claimant’s application to amend claim number 1403339/2019 to add a claim pursuant to s145B TULR(C)A 1992 iii) In addition by an application dated 16th May 2022 the claimant makes an application: a) To amend claim 1400283/18 to add a claim of victimisation; b) To amend the particulars of personal injury in that claim; c) To seek a deposit order against the respondent as a condition of it being permitted to advance its responses to case 1400615/19.

[4]In respect of the most recent applications Mr Mitchell was content that they were dealt with at this hearing despite only having been made yesterday.

[5]At the hearing on 31st March 2022 EJ Midgley struck out claims against a number of individually named respondents as the claimant had not during the hearing been able to identify any allegation made against them. This is the 2 of 11 subject of a reconsideration application but does not affect the issues to be determined in this hearing.

[6]The claims this case were identified by EJ Midgely as being claims of public interest disclosure detriment (s47B ERA 1996) and automatically unfair dismissal (s103A ERA 1996). The public interest disclosures are alleged to be contained in the claimant’s written grievance sent in November 2017; the detriments to have occurred in May and June 2019; and the claimant was dismissed on 31st July 2019. The claim for automatically unfair dismissal is already before the tribunal, being one of the claims brought in 1403339/2019, and in the course of the hearing the claimant confirmed that the only claims being pursued in this claim are those for whistleblowing detriment. Time Limits

[7]The primary limitation period for all of the claims (taking the date of termination as the last possible date) expired on 30th October 2019. The claimant obtained an ACAS EC certificate with dates A and B both being given as 14th November 2019. As this is outside the primary limitation period the claimant does not get the benefit of any extension of time. The claim was presented on 10th October 2020 twenty days short of being one year out of time.

[8]The time limits for the presentation of protected disclosure detriment claims is within three months from the act complained of as set out above, or “within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”

[9]The law is correctly summarised in the respondent’s skeleton argument and is well known: i) The burden of proof lies on the claimant (Porter v Bandbridge); but ii) Should be applied liberally in favour of the employee (Dedman v British Building and Engineering Appliances); iii) Reasonably practicable means “reasonably feasible” and requires the tribunal to ask whether “it was reasonable to expect that which was possible to have been done” (Asda Stores v Krause)

[10]The first question is, therefore whether it was reasonably practicable to have brought the clams within the primary limitation period and the second, if not whether they were presented within a reasonable time thereafter.

[11]Between 31st July 2019 and 10th October 2020 the claimant firstly submitted claim 1403339/19 on 6th August 2019. There was a preliminary hearing held on 3 of 11 14th August 2019; and a further PH on 13th January 2020. On 27th February 2020 the claimant issued his claim in the High Court and a further PH took place on 3rd / 4th March 2020. The case was listed for a final hearing starting on 16th November 2020. However following a telephone hearing on 9th October 2020 EJ Bax stayed the proceedings pending the outcome of the High Court claim. The current claim was issued the next day. For completeness sake the High Court claims were dismissed on 3rd December 2020.

[12]There are a number of obvious points to make. Firstly there was clearly no impediment to the claimant bringing the claim at any point during that period as he did bring both a further employment tribunal claim on 6th August 2019, and the High Court claim in February 2020; and participated in at least three preliminary hearings. Secondly he was clearly by that point to familiar with the process of bringing a claim in the Employment Tribunal, and thirdly the claim brought on 6th August 2019 did bring claims relating to his dismissal, including a claim for automatically unfair dismissal which is repeated in this claim.

[13]The claimant contends that it was not reasonably practicable to have submitted the claim within time; and was submitted within a reasonable time thereafter. The basis for that is that his case has to be viewed in context and is linked with that of Dr van den Anker. His submission is that the internal processes in her case were ongoing and did not conclude until October 2020. He submits that in those circumstances that it was reasonable not to submit the detriment claims until that internal process in her case had concluded as he was hopeful of being reinstated to his role. I confess I find this extremely difficult to follow. Within one week of being dismissed the claimant had brought a claim relating explicitly to his dismissal but chose not to bring claims relating to predismissal detriment until the conclusion of internal processes that did not directly relate to him in any event, and which could not in and of themselves have resulted in his job being restored irrespective of the outcome for Dr van den Anker.

[14]However, whatever the merits of the claimant’s decision, the fact is that he chose not to bring the current claim during a period in which he did bring another tribunal claim and started High Court litigation. The factual circumstances surrounding to and leading to his dismissal had been put in issue as early as August 6th 2019 and the current claims relate to those events. In the circumstances I am unable to identify any impediment to presenting the claim that would mean that it was not reasonably practicable for it to have been presented within the primary limitation period. As a result I am bound to dismiss the claims for whistleblowing detriment as having been submitted out of time. Henderson v Henderson

[15]As the claims have been dismissed as being out of time this issue has fallen away. However, as discussed with the parties orally I agreed that I would deal with all the issues before me although in the circumstances I can do so relatively briefly. 4 of 11

[16]The test for application of the rule in Henderson v Henderson was set out by Lord Bingham in Johnson v Gore Wood and Co

[2002] AC 1

: This form of abuse of process has in recent years been taken to be that described by Sir James Wigram V.-C. in Henderson v. Henderson (1843) 3 Hare 100 at 114 where he said: "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I 5 of 11 would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice. (My underlining)

[17]The respondents case is that after his dismissal the claimant brought a new claim (1403339/19) which brought claims relating to his dismissal and expressly brought a claim of automatically unfair dismissal (S103A ERA1996 - whistleblowing) together with an interim relief application; as well as claims for “ordinary” unfair dismissal and harassment under the Equality Act 2010. It set out in detail the provisions relating to public interest disclosure in the Employment Rights Act 1996. It at least appeared to comprehensively set out all claims relating to public interest disclosure and his dismissal. Had he also wished to bring claims of whistleblowing detriment relating to the same process that was the opportunity to bring them. It submits that it is clearly a misuse or abuse of the court’s processes to bring a claim over a year later which could and should have been brought at the time.

[18]Moreover as set out above in relation to time limits the claimant’s case is that he did not choose to advance one part of his claim, the public interest detriment claim, whilst advancing others. On the claimant’s own case he decided to pick and choose when to bring different claims arising out of the same events, and to do so is necessarily a misuse or abuse of the process.

[19]The claimant essentially submits that his conduct was reasonable for the reasons set out above, and relies on the proposition that it is not necessarily or automatically an abuse to bring a claim which could have been brought earlier, and that the broad merits of the claim would not justify striking it out.

[20]In my judgement the respondent’s analysis is correct and had the claims not already been dismissed as being out of time I would have struck them out as being an abuse of process. Strike Out / Deposit Order

[21]The respondent has confirmed that there is no application for a strike out or deposit order on any other basis than those set out above. 6 of 11 Preparation Time Orders First Application

[22]On 3rd / 4th March 2020 EJ Midgely held a preliminary hearing. One of the issues was the respondents’ application for strike out and/or deposit orders. He dismissed an application that the claims should be dismissed in their entirety on the grounds of the claimant’s conduct and a further application to strike out automatically unfair dismissal claim (s103A ERA1996 : claim no. 1403339/19) on the grounds that it had no reasonable prospect of success); but of his own volition dismissed a number of other claims and made deposit orders in respect of others. On 9th March 2020 he sought a preparation time order (PTO) of £97.50 (2.5x £39) in respect of preparation to meet the respondents strike out application. The only basis is EJ Midgely’s conclusion that it was not well founded.

[23]The grounds for making a PTO are identical to those for making a costs order as set out in r76 Employment Tribunals Rules of Procedure. The simple fact that an application is unsuccessful is not in and of itself the basis for making a PTO or costs order and the claimant has not identified any specific basis falling within r76. In any event EJ Midgely has set out a detailed analysis of the application (paras 1-26 Reasons) and concluded that the claimant had acted unreasonably (paras 10 -12) and had failed comply with tribunal orders (para 22) but that a fair trial was still possible and the matters identified could be met with costs orders (para 15) and an unless order (para 24). In the circumstances whilst the respondent did not achieve the outcome it sought, on the basis of EJ Midgely’s findings, in my judgement there is nothing in the making of the application itself which would cross the threshold for making a PTO order, Second Application

[24]The second is an application made on 9th September 2020 is for a PTO in the sum of £60 (1.5 x £40). This relates to the alleged failure of the respondents to comply with case management orders in July 2020.

[25]On 4th June 2020 EJ Livesey agreed proposed case management orders one of which was for the parties to agree the final bundle index by 15th July2020. On 14th July 2020 the respondent sought an extension to 22nd July 2020 due to the unexpected absence from the office of the relevant fee earner. The claimant agreed by email on 15th July 2020. In fact that deadline was missed and the bundle index was supplied to the claimant on 31st July 2020. In his application the claimant describes writing to the respondent on 23rd July to which they replied on 28th July 2020. However the PTO application does not relate to that letter but to “requests for deferment and responding to the non-compliance between 4th June 2020 and 28 June 2020.” On the face of it none of the factual matters relied in support of the application relate to the application itself. 7 of 11

[26]In addition there are often delays I complying with case management orders in litigation, and where, as here, a delay of eight days could not have had any effect on the parties ability to prepare for the hearing then due to take place in November 220, I would not exercise my discretion to make a PTO in any event. Application to Amend claim 1403339/2019

[27]By an application dated 15th April 2022 the claimant applies to amend claim 1403339/2019. The application relates to the allegation that prior to his dismissal on 31st July 2019 he had been offered re-engagement on the expiry of his fixed term contract. However the terms were different from those his previous contract essentially in that the offer was for a zero hours rather than a fixed hours contract. The claimant’s case is that the offer of a new contract on different terms was “a direct offer bypassing my union’s collective bargaining agreement being made” contrary to s145B TULR (C) A 1992 which provides that: 145B Inducements relating to collective bargaining(1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if– (a) acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and (b) the employer's sole or main purpose in making the offers is to achieve that result.

(2) The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.

[28]In support of his application he relies on Kostal UK Ltd v Dunkley and others

[2021] UKSC 47

; and submits that this is simply a re-labelling of his existing pleaded claim as the offer of new employment is part of the factual background to his existing claims.

[29]The respondent objects on a number of bases. Firstly this is not simply relabelling but a wholly new claim legally and factually. Whilst the offer of new employment is part of the factual background there is no claim relating to it. Secondly the application is out of time. The date of the offer was July 2019 which means that the primary time limit for bringing the claim expired in October 2019 and the application is some eighteen months out of time. Thirdly and fundamentally they contend that it is impossible to see how s145B is engaged at all. The claimant’s existing fixed term contract expired on 31st July 2019 with the result that his employment would end unless he was offered and accepted a new contract. One was offered but declined. The question of the bypassing or avoidance of collective agreement with a recognised trade union simply does not arise and has no bearing on any issue in this case.

[30]As put orally the claimant contends that the respondent was obliged consult or confer with his trade union representative in respect of any new contract, 8 of 11 particularly if the terms were less advantageous to him, and that the failure to do so brings the claim within s145B.

[31]The difficulty with the claimant’s case is that whilst there may be an obligation to reach collective agreement as to the terms of any particular type of contract, the duty does not extend to individual consultation with an individual trade union representative about the offer of a contract or the contractual terms offered to an individual employee. In addition there is on any analysis no prospect of the claimant successfully asserting that an offer of a particular type contract to him has any bearing on collective bargaining or could possibly have the sole or main purpose of achieving the prohibited result. In my judgment the respondent must be correct and even taking the claimant’s case at its highest the issues for determination in s145B simply do not arise in this case.

[32]In my judgement, making every allowance for the claimant, the proposed claim is bound to fail and there is no purpose in permitting any amendment in any event, before even considering the effect of the claim being out of time has on the exercise of any discretion. Application to amend claim no. 1400283/2018 Victimisation (s27 Equality Act 2010)

[33]One of the decisions made by EJ Midgely in the hearing on 3rd / 4th March 2020 was to dismiss the claimant’s claim for victimisation as having no reasonable prospects of success, on the basis that he had not on his own case done a protected act but was relying on a protected act of Dr van den Anker (Reasons paras 31-34). There was, as far as I am aware, no application for reconsideration of that decision or any appeal against. The claimant now contends that the decision is wrong and the has identified a number of protected disclosures he alleges he has made, and now applies to restore that claim by way of amendment.

[34]As indicated orally in my view I have no power to restore by way of amendment a claim that has already been dismissed. The only way of varying or revoking that decision would be by way of an application for reconsideration and/or appeal (both of which would now be out of time). As an application for an amendment it is bound to be dismissed. Particulars of Personal Injury

[35]As Mr Mitchell pointed out the claimant does not need permission to amend to provide further detail of the claim of the injury allegedly sustained in his for damages for personal injury in the event that any relevant claim is successful. This is correct and so the details will be accepted as further information as to that part of the claim. 9 of 11 Application for a deposit order – claim 1400615/2019

[36]In summary a part of the claimant’s claim is that he was entitled to a permanent contract of employment having been employed on a series of fixed term contracts for a period of four years or more. The respondent asserts that it was objectively justified in not doing so in that the claimant was engaged under the terms of the Access to Work Scheme which required support workers to be engaged on fixed term contracts (see EJ Midgely 3rd /4th March 2020 CMO para 16.3 – 16.5). The claimant contends that this is contradicted by an email dated 5th March 2019 from the respondent’s HR department to Dr van den Anker relating to the renewal of the claimant’s contract, in which the view was expressed that any further fixed term contract would have to be objectively justified and that ”funding” was not an objective justification.

[37]In my judgment this is an insufficient basis from which to conclude that the response has little reasonable prospect of success. Firstly it depends in part by what is meant by “funding” in the email; secondly the view of the respondent’s HR department would not be binding on the tribunal which would need to analyse the justification defence for itself; and thirdly in any event the advice is given to Dr van den Anker in the context of whether to renew the agreement as a fixed term rather than a permanent contract, and claimant’s fixed term contract was not renewed. Fundamentally in my judgment it is unsafe to conclude that the response has little reasonable prospect of success on the basis of one comment in one email taken in isolation. It is certainly not sufficient to persuade me that this is an appropriate case in which to make a deposit order. Ms D England

[38]One of the original respondents to claim 1400615/2019 was Ms D England. That claim was withdrawn and dismissed by a judgment of EJ Oliver on 8th April 2019. She is also a respondent to claim 1405457/2020. That claim has been dismissed as having been presented out of time (see above) . She is therefore, no longer a respondent to these proceedings.

[39]However she remains potentially a witness and she is a non-legal member of the Employment Tribunal and who sits in Bristol. This raises potential issues as to whether it is appropriate for the claims to be heard in Bristol/South West Region or whether it should be transferred, or a panel from another region being requested to hear the claim. These issues have been addressed in correspondence with the parties by REJ Pirani. The claimant replied on 29th April 2022 stating that he is alleging that Ms England is involved in a number of the factual allegations but is content for the case to be heard in Bristol. The respondent replied on 6thay 2022 repeating points made in an earlier email of 10th February 2022. Claim 1405457/2020 having been dismissed the only question is whether she is to be called as a witness which they have confirmed that they do not intend to do. In addition they assert that whilst she may have been involved in correspondence in the background of the claims she was not a decision maker in relation to any of the matters in issue. It is also content that 10 of 11 there is no potential for conflict and that it is happy for the claim to remain as listed to be heard by a panel comprising a Bristol Judge and members.

[40]The current position is, therefore, that neither party is seeking an variation of the current listing of the final hearing in Bristol in May 2023. The issue will be referred back the REJ to consider whether in those circumstances he is content for the case to remain as currently listed.

Findings of fact

[41]In January 2016 Dr van den Anker was being assisted by ADWUK. Hostile stares, glares and disdain ( harassment claims)

[42]We turn now to an allegation that is relied upon for the Claimant’s harassment claim. It is alleged that in “Spring 2016” Dr Watson gave Dr van den Anker hostile glares, stares, and looks of distain on at least three occasions. Dr Watson wholly denied doing so in his witness statement. Dr van den Anker did not deal with this in her witness statement nor did the Claimant. It was not in the Claimants later letter before action2 even though he raised other issues in respect of Dr Watson in that letter. The Claimant did not mention it when he was later interviewed as part of a grievance investigation that Dr van den Anker had brought telling the investigator Nicola Hartland that he had never witnessed any harassment or bullying of Dr van den Anker by Dr Watson3. For these reasons we prefer Dr Watson’s evidence and we find that he did not give Dr van den Anker hostile glares, stares, and distain in Spring 2016. Events in 2016

[43]We turn to other events at that time. Discussions had been ongoing between Dr Watson and Dr van den Anker regarding the support worker activities and it was evident from an email we saw in the bundle that Dr Watson understood that Dr van den Anker was making an application for an academic support worker. On 24 May 2016 Dr Watson emailed Dr van den Anker asking her to proceed with the Access to Work application, he stressed the importance of it and Dr van den Anker acknowledged the email saying it (his instruction) was very clear. On 10 May 2016 HR sent an email to Dr van den Anker to advise that the Claimant’s contract was due to expire on 30 June 2016 and that they were not prepared to renew the TSU contract any further. Dr van den Anker was asked to submit a request for the fixed term contract as soon as possible. Dr van den Anker was chased on 24 June 2016 by Mr Foster who requested confirmation that she had submitted the application to Access to Work.

[44]On 1 July 2016 Dr van den Anker emailed Dr Watson and Helen Spilsbury to say that she was unwell and she had not submitted the Access to Work application. She asked them to extend the Claimant’s contract (which had expired the day before) and said that she had found someone, (not the Claimant) to help with organisation and sought permission to employ this individual. Ms Spilsbury replied that same morning, she offered to help look at the draft Access to Work application. She also stated that given that Dr 2 See paragraph 80-86 below 3 See paragraph 94 below van den Anker’s support was being reviewed it did not make sense to move the Claimant onto a fixed contract at that stage. We find this was a reasonable position to have taken. The Access to Work application had not even been submitted let alone approved and Dr van den Anker herself was requesting permission to employ someone else to do a different role in addition to the Claimant.

[45]It was agreed to extend the Claimants TSU contract until the end of August 2016. By 4 July 2016 Helen Spilsbury discovered that there had been no Access to Work funding in place since the expiry of the funding at the end of March 2015 and reported as much to Dr Moyle (also that no claims had ever been made from the previous funding in any event). She also learned that Dr van den Anker had been given a deadline by Access to Work of 24 June 2016 to apply for funding but had not done so. We make no findings as the reasons as they are not relevant to this proceedings. Dr Moyle nonetheless approved a contract extension for the Claimant notwithstanding discovering that there was no funding in place.

[46]The communications with Access to Work around that time became somewhat confused. Access to Work took the view that as no claims had been made under the funding that had been provided between 2013 and 2015 that the Respondent had been funding support worker and under their guidance this meant that they would not help where an employer has been giving support to an employee and withdraws it for what they referred to as a “money saving strategy”.

[47]Ms Spilsbury sought advice from WECIL who were the organisation that followed ADWUK. The Respondent was advised that they should not try and claim retrospective payments, they should not agree to fund the extra 15 hours as it would be likely to jeopardise the funding previously granted (21 hours). Further that claiming the Access to Work claims should be part of the support worker role and that someone in HR and finance should then be responsible for checking these claims. They also explained that Access to Work would only provide the funding if the support worker was doing less than 20% of the supported employee’s role and recommended that Dr van den Anker had a full reassessment.

[48]Access to Work then issued a letter confirming they would fund 21 hours and Respondent would fund 15. The Respondent rebutted this and explained that the reason that they had been funding all of the hours was due to internal errors or words to that effect. Access to Work then issued an amended funding letter clarifying they would fund 21 hours with the reference to the Respondent funding 15 hours removed.

[49]Following a meeting on 26 July 2016 Dr van den Anker agreed to stay within the 21 hours and request a reassessment. She signed an Access to Work declaration, initialling and specifically crossing through the section where it stated the Respondent would fund the 15 hours that same day clearly limiting the declaration to 21 hours per week. .

[50]The notes of the meeting on 26 July 2016 noted that the support worker activity log (which was required to apply for the funding) contained details of activities undertaken by the Claimant that Access to Work would not approve. On 28 July 2016 Access to Work issued the letter referenced in the above paragraph approving the funding of 21 hours for a period between 6 July 2016 and 5 July 2019 removing the earlier reference to the Respondent funding 15 hours. Following this it was agreed that the Claimant would be moved from a TSU contract to a fixed term contract and Ms Spilsbury told Dr van den Anker that she would speak to Dr Watson about this. Input was required from Dr van den Anker to draft an updated job description for the Claimant.

[51]Dr van den Anker sent Ms Spilsbury an email on 3 August 2016 in which she stated as follows: “As I am now the support workers Line Manager as well as the Claimant of the grant I will sign the Access to Work forms and ask you countersign the forms”. For this reason and also that it stated so on the earlier contract we find that Dr van den Anker was the Claimant’s Line Manager. She had denied this when it had been put to her under cross examination.

[52]Dr van den Anker had been sent an email by Access to Work on 29 July 2016 along with claim forms and instructions on how to claim. On 3 August 2016, Dr van den Anker returned to Ms Spilsbury a partially completed claim asking of her to complete part of the form. On 8 August 2016 Ms Spilsbury emailed Dr van den Anker again saying she would liaise with Dr Watson over the issuing of the fixed term contract and informing her that Dr Watson would countersign the claim forms.

[53]In that email, Ms Spilsbury also said as follows to Dr van den Anker: “it is not appropriate for your support worker to be working when you are not in the office, the role is to support you”. Ms Spilsbury said that if Dr van den Anker was going to be away they needed to discuss whether the Claimant should be in that location (the office) and she stressed that it was very important that the declarations to Access to Work adhered to the basis of the funding. The Respondent was only able to claim for the support work hours if the Claimant was doing the appropriate activities that had been authorised in the grant. She asked Dr van den Anker to clarify the position.

[54]In September 2016 Dr van den Anker was chasing the issuing of the fixed term contract for the Claimant by sending several emails. Dr Watson also chased Ms Spilsbury about this matter. Belittling comments about the Claimant marking student work

[55]On 7 October 2016 there was a meeting between Dr van den Anker, Dr Watson, Ms Spilsbury, and Professor Clegg also attended by Ms J Roberts of WECIL. This was the meeting that the Claimant alleged that Dr Watson made belittling remarks amounting to unlawful harassment about the Claimant’s ability to mark student work. We saw notes of the meeting that was authored by Ms Roberts. Those notes record that the Claimant was not at the meeting itself but was at a debrief attended by Ms Spilsbury and Dr van den Anker (but not Dr Watson). The notes record that Ms Spilsbury was still finalising the job description for the Claimant and she expected a contract to be issued the following week. Ms Roberts recorded that Dr Watson’s behaviour was “unhelpful and could be construed as discriminatory.” She appears to attribute this to observing that Dr Watson having no eye contact with Dr van den Anker and raising an eyebrow at Professor Clegg. Dr Watson explained the following when he was asked about this under cross examination. He said that he was reticent about stating his concerns at that meeting about Dr van den Anker’s marking not being done on time and also her failures to turn up to classes and not telling students. Professor Clegg was aware of this state of affairs. We make no findings about those concerns but this was his explanation for the behaviour that is alleged to be discriminatory in the notes.

[56]Dr Watson acknowledges that he exchanged a glance with Professor Clegg at the point where Dr van den Anker asked “what she could do better” as he felt the reticence described above and he did not consider it to be an appropriate forum for such a discussion with Ms Roberts present who was an external individual. Dr Watson said that he was offended by suggestion that he displayed discriminatory behaviour at that meeting.

[57]The Claimant’s witness statement did not address the harassment allegations other than as follows (and we note the contemporaneous note by Ms Roberts do not support his contention he was even at the meeting with Dr Watson): “(Sean) Watson asked me in the meeting if I was able to mark student work. I perceived this as a discriminatory attitude and an instance of micro aggression from Sean Watson.”

[58]Dr Watson accepted that marking was discussed around that time with Dr van den Anker in terms of marking support and we have seen that there were discussions about the potential of employing an academic support worker. His reasons for doing so was that he wanted to ensure a suitably qualified person was marking the student work in order to comply with the university’s quality obligations. He explained that another concern was that if the Claimant was marking work it may have been encroaching on Dr van den Anker’s role considering that the support worker was only supposed to engage in no more than 20% of the supported employees duties.

[59]Dr Watson said that he did not know what the Claimant’s qualifications are / were and therefore he could not have disqualified him as a candidate or discount him or infer that he would not be qualified. The Claimant accepted under cross examination that he could not do marking as a support worker and there would needed to have been a process of appointment but said “that was not entertained.”

[60]There was no evidence as to why this enquiry was related to the Claimant’s race, sex or association with Dr Van den Anker’s disability. The more plausible explanation (and we find) was that those discussions arose from a reasonable concern of Dr Watson to ensure that university standards in terms of marking would be adhered to and also that it would not encroach on the 20% funding. We find such a concern would have been in regard to any individual where it was being proposed they were or could mark student work which was not within their job role.

[61]We turn now to an incident in October 2016 where a number of students complained about another lecturer. There was discussion throughout the proceedings about the relevance of this matter. It did not feature in any of the Claimant’s claims other than being referred to in his letter relied upon as the protected disclosure. We were invited by the Claimant to consider the relevance in regard to background information and also potential for it to become relevant if the Tribunal needed to consider drawing inferences. Therefore we set out our findings as follows. Student complaints October 2016

[62]In early October 2016 issues arose between some students and a lecturer. It is not necessary nor is it relevant to name either of those parties save Ms L Youssiff Dafa’Alla was one of the students as described in her witness statement, which was all about these events. The lecturer had sought support of how to deal with one particular student, he said he was being disruptive in the lessons. Four students described by Dr van den Anker as African linked females complained to Dr van den Anker about this lecturer alleging that he was displaying discriminatory behaviour. The Respondent commenced an investigation. On 4 October 2016 Dr Watson emailed Dr van den Anker to advise that he was dealing with the complaint and did not feel that she had a further role to play. On 8 October 2016 Dr van den Anker and the Claimant had a discussion with this particular lecturer which was later described as going on for two or three hours. It was unclear to the Tribunal how or why this came about given Dr Watson’s instruction to Dr Van den Anker. The lecturer later complained to Dr Watson that he had been “interrogated” by Dr van den Anker and the Claimant and he felt like he had “not been in an investigation but an inquisition”. On 10 October 2016 Dr Watson emailed Dr van den Anker about this. He was evidently frustrated which was clear from the contents of the email and tone, referencing his earlier instruction said that he regarded their conduct in having this discussion with the lecturer as “unacceptable interference” and that he had referred the matter to Professor Clegg. Hostile glares, stares and disdain Dr Watson to Claimant October 2016

[63]We now turn to deal with the claim by the Claimant that Dr Watson also on at least two occasions gave hostile glares, stares and looks of disdain to the Claimant. Dr Watson strenuously denied behaving in such a way. We have therefore to make a finding of fact about a matter that took place almost 5 years ago. We have one individual, the Claimant saying that something happened and the person who was alleged to have engaged in that conduct saying it did not. In such a scenario we look to see if there is any contemporaneous corroborating evidence in supporting either account. We took into account that evidently relationships around that time were strained because of the student complaint and that Dr Watson was frustrated with Dr van den Anker and the Claimant not having heeded his instructions. We also took into account that no grievance was ever raised about this conduct, apparently the Claimant raised this with Dr van den Anker but he accepted that she did not in turn raise that with anybody else. Dr van den Anker does not address this in her witness statement, she was here to support the Claimant’s account. The Claimant’s witness statement lacked specificity. He stated that it was “in and around October and November 2016” that he was subjected to “hostile, baleful and intimidating glares from Sean Watson”. This created the harassment environment. There was no evidence as to why the Claimant considered this to be related to his race, sex or association with Dr van den Anker’s disability. If anything, the Claimant pointed to the fact that Dr van den Anker had been involved in the student complaint rather than any protected characteristic. The Claimant does not mention this in his later letter before action in November 2017 but he does complain about other matters relating to Dr Watson. Taking into account all of the above and balancing all of those factors, given the Claimant’s propensity to raise matters that concerned him, we prefer Dr Watson’s account. We find there were no hostile glares, stares and looks of disdain from Dr Watson to Claimant around October 2016. Fixed Term contract delay

[64]We return now to the situation surrounding the alleged delay in issuing the fixed term contract which is also relied upon as an act of direct discrimination by the Claimant. Authority had been given to place the Claimant on a fixed term contract from the Access to Work funding at the end of July 2016 (see above at paragraph 50). On 11 October 2016 Dr Watson referred to the student complaint as a “serious crisis” as the reason for the delay in issuing the fixed term contract.

[65]By 14 November 2016 the Claimant had applied for the role so by that point the arrangements for the formal recruitment must have been underway. By 1 December 2016 Dr Watson accepted he had not yet arranged an interview. The interview process was completed by 13 December 2016 and the fixed term contract was issued on 15 December 2016. This was for a period up to 5 July 2019 and the Claimant emailed on 25 December 2016 to advise he accepted the contract (acknowledging the salary error - see below) and signed to accept those terms on 18 January 2017.

[66]We find that the reason for the delays in issuing the contract were a number of matters namely student complaints, administrative delays within HR and compilation of the Claimant’s job description in discussion with Dr van den Anker.

[67]A new job description was issued with the fixed term contract. This specifically stated under duties and responsibilities that the Claimant was to assist with Access to Work administration particularly around the completion of forms and claims. Changes to the Claimant’s contract between October – December 2016

[68]The Claimant did not speak of this in his witness statement. He was asked by Mr Mitchell what were the changes he was complaining about. The Claimant told the Tribunal the complaint was the refusal to entertain contribution to 36 hours support for Dr van den Anker.

[69]We heard evidence from Dr van den Anker on this issue. Her evidence was that the job had been lowered from Grade D to “ungraded” and the rate of pay changed from cumulative to static. The change in grade was corroborated by the TSU contract and the FTC contract which recorded the grade as “offscale”. It was not clear what the reference to static pay was. Further she alleged that the amount of hours had been 24 and this was lowered to 21 hours a week. This cannot be correct as Dr van den Anker had signed a declaration stating the funding would be for 21 hours (see above) on 26 July 2016.

[70]Dr van den Anker also asserted that there was a newly inserted clause that the Support Worker would be responsible for claims being made to ATW for his salary plus on costs. However we found above that this was in his original job description so this was not a change. Further, this had been recommended by ADWUK and was unsurprising given the lost funding that had taken place thus far.

[71]Dr Watson was responsible for raising a request for the Claimant’s FTC in the internal system called “eRAF” but handed over the HR for the inputting of the details of the contract itself. He had no input in the job description or any of the contract term decisions.

[72]We saw an email from Dr B Oliver who had been on the interview panel with Dr van den Anker to HR, copied to Ms Spilsbury regarding the difficulties she was having in completing the follow up form to the interview dated 14 December 2016.

[73]We also saw a recruitment checklist signed by someone call A Geary that had scribbled out Grade D and changed it to “off scale”. They had also changed number of hours from 24 to 21.

[74]The Claimant was initially offered a salary of £12095 on salary point 16 grade D. In a further email dated 15 December 2016 Ms Geary confirmed this had been an error and the salary was £11950 offscale. Ms Spilsbury told the Tribunal that this was because the Respondent needed the Claimants salary plus employment costs to be equal to the funding grant. Events from April 2017

[75]We move forward now to April 2017. Ms Spilsbury told the Tribunal that she discovered that Dr van den Anker and the Claimant had again not been submitting claim forms to Access to Work (despite Dr van den Anker agreeing she would do so – see above). In December 2016 Ms Spilsbury had had a discussion with Dr Van den Anker and talked through how to complete the forms. Some forms had apparently been returned to Dr van den Anker having been incorrectly filled in. Ms Spilsbury asked Dr van den Anker to send her the correspondence from Access to Work so she could look into it. She offered to set up a meeting with Jan Richardson who was the Line Manager of Ms Sims another support worker and the Claimant’s comparator for some of his claims (we return to that individual below). Dr van den Anker replied that it was for her Line Manager to follow up and reclaim the funding but she said she would post the form to Ms Spilsbury. By this point we heard that Dr Van den Anker was refusing to speak to her line manager Dr Watson or attend any meetings where he was present.

[76]By 30 May 2017 Dr van den Anker had not sent the form and was chased by Ms Spilsbury. She asked Dr van den Anker if the Claimant could meet and have a discussion with Jan Richardson who would advise on how to facilitate the Access to Work claims. She stressed it was critical as they only had six months to make the claims or the funding could be lost. Redundancy consultations

[77]In early June 2017 Dr van den Anker went off sick. From this time the Claimant did not attend work and was being paid in full by the Respondent. By September 2017 discussions had started internally with HR and Professor Clegg about the Claimant’s position. The Claimant had no work to perform because Dr van den Anker was absent on sick leave. The Respondent was not allowed to claim any funding from Access to Work on that basis. It was agreed therefore to start a redundancy consultation procedure.

[78]Professor Clegg emailed the Claimant on 25 October 2017 stating that he had tried to call him and that he needed to meet with him. He acknowledged that a Trade Union representative should be present at the meeting. A meeting was arranged for 2 November 2017. Ahead of that meeting Professor Clegg had a note of advice from HR of what should be discussed; the note said that it was to be an informal meeting, it stated that there was no work for the Claimant in the role and that there would be a planned first formal meeting on 9 November 2017. A letter was prepared to give to the Claimant at the end of the informal meeting on 2 November 2017. There were no notes of the informal meeting but Professor Clegg told the Tribunal and we accepted his evidence that the Claimant stated he was at the university for a particular role and would not do any other activities.

[79]There was a very strong response from the Claimant to this informal consultation meeting. On 6 November 2017 the Claimant sent a letter before action followed by High Court proceedings to Professor Clegg, copied to Professor Neil, Dr Watson, Ms C Parker, Ms Spilsbury, and the university legal department. This is the letter relied upon as containing the Claimant’s protected disclosures. The Claimant subsequently brought a High Court claim again the Respondent and 17 other individual Respondents including M/s Eversheds. The High Court claim was struck out on 3 December 2020 on the basis the particulars of claim disclosed no reasonable grounds for bringing the claim against any of the Defendants. An order for costs in the total sum of £38,310 which remains to date unsatisfied. Protected disclosure letter

[80]The Claimant did not speak of this letter in his witness statement. There was no evidence from the Claimant as to how and why it amounted to a qualifying disclosure or around his beliefs regarding the public interest at the time he wrote the letter. We have considered the letter as a whole and picked out parts where we consider the Claimant could be relying upon, as we had no evidence from the Claimant directly.

[81]The letter was headed as a “Letter for claim to likely co-defendants under paragraph 3 of the practice direction for pre action conduct.” There are two relevant parts to this letter that we need to address as according to the list of issues, they were relied upon for the protected disclosure claim. The first protected disclosure claim asserts that the Claimant complained in a letter about a breach of Regulation 8 of FTC Regulations. There is one section of the letter that could feasibly be said to relate to the FTC Regulations. This is where the Claimant makes reference to his temporary contract status: I was engaged initially as a temporary staff member through the UWE Temporary Staff Unit (TSU) on short term contracts ranging from one month to three months. This situation is normally for up to six months as a temporary measure. However, this continued for 41 months up to December 2016. Inaction, foot dragging and unconscionable omissions by Dr Watson were the main precursors for this. There was little or no action to effect a permanent contract despite Dr van den Anker’s repeated requests for this. Even when the process for a more durable contract was initiated, Dr Watson found a way or excuse to disassociate himself from seeing it through. Dr Clegg took on the responsibility of doing this by arranging, hurriedly, an interviewer and a room. It is asserted Dr Clegg did this to cover up for Dr Watson’s reluctance and/or failings.

[82]The Claimant was asked about this under cross examination. It was put to the Claimant that his letter does not even refer to the FTC Regulations and he replied “No that was before the invocation” which we understood to refer to his later invocation of FTC rights in 2019 which we address below. By this time, in November 2017 the Claimant had acquired 4 years continuous service (as of June 2017) and as such, if the Claimant was genuinely raising an issue about a breach of the regulations at this time we think he would have said so directly in that letter. We find that this was not in the Claimant’s mind at all when he write the letter. This is corroborated by the Claimant referencing a period of 41 months (not 4 years) which was the period between the start of his employment and the issuing of the fixed term

[83]In his witness statement, the Claimant also did not speak of what sections of the letter amounted to a qualifying disclosure in respect of alleged breaches of the Equality Act 2010.

[84]The Claimant states in the letter “Dr van den Anker has informed me of derogatory and inappropriate comments made by Dr Watson of me in the course of my work. However intentioned the remarks were, I fully intend to pursue a course of action in that regard as it reflects elements of unconscious and conscious bias and prejudice.”

[85]The Claimant had set out in the letter the background regarding the student complaints in October 2016 and that he and Dr Van den Anker had been accused of interfering in the investigation: “You will recall, Dr Clegg, that Dr Watson accused me and Dr van den Anker, in October 2016, of ‘interfering with management’ in the debacle over the four students who complained of inappropriate and offensive behaviour by the departed [name of lecturer].” The Claimant goes on to say: “The direct and indirect discrimination, mistreatment, hostility, delay, effective side-lining and oppression experienced by Dr van den Anker and me over months and years are issues which will be pleaded in my particulars of claim … And Dr Neill, in the course of some meetings where I was present, made some highly inappropriate comments that condoned sexism and stated his displeasure at the role Dr van den Anker had taken in assisting the students to be heard and listened to in their complaints regarding Dr Schilling and the handling of their concerns. You Dr Clegg, Dr Neill and Dr Watson were found wrong, or at least found wanting, in your roles and participation in that saga. It is in that context, and your continued complicity in the negative behaviours of Dr Watson relative to Dr van den Anker, that explains your actions, or omissions, regarding negative significant processes initiated against her and against me with the complicity of Human Resources. I specifically refer to the initiatives to investigate Dr van den Anker with the possibility of dismissal and your possibly premature moves to place my role at 'risk of redundancy’. This is partly why Ms Catherine Parker and Ms Helen Spilsbury are co-defendants in my proposed claim too. And The University, as a public authority under the Human Rights Act 1998, and other relevant statutes, is under a duty and obligation to comply with and meet certain standards. These duties and their non-compliance will be laid out in more detail in my proposed claim.

[86]With regards to the alleged concealment disclosure, the Claimant did not speak to this in his witness statement. He told the Tribunal that it was the following section relied upon in the letter: Hiding behind ‘the University’ is a favoured tactic and strategy of those involved in the above mentioned factors and behaviours.

[87]Also on 6 November 2017 the Claimant emailed Professor Clegg to tell him that the date that Professor Clegg had proposed to meet for the formal consultation redundancy meeting was not suitable and proposed 15 or 16 November 2017 instead. Professor Clegg replied on 14 November 2017 suggesting the 16th and he also informed Dr van den Anker he had commenced a redundancy consultation process with the Claimant. The Claimant did not attend the meeting on 16 November 2017, it was rescheduled for 23 November 2017 and he also failed to attend this meeting, it was subsequently rescheduled for 30 November 2017. On 28 November 2017 the Claimant emailed Professor Clegg and told him that he would not be taking part in the redundancy process and he alleged that it was designed to undermine and dismiss Dr van den Anker. It should be borne in mind that at this point the Claimant had not been in work yet being paid in full since the summer of 2017. Placing the redundancy process on hold rather than stopping it

[88]On 6 December 2017 events overtook as Dr van den Anker made contact with the Respondent and said that she wanted to return to work. On 11 December 2017 Professor Clegg sent an email to the Claimant explaining that as Dr van den Anker was going to be coming back on a phased return the redundancy process would be paused. The Claimant reiterated on 31 December 2017 that he would not take part in a redundancy procedure. Professor Clegg also referenced to the redundancy process being paused in an email on 22 January 2018. The Claimant asserted as a direct discrimination claim that the redundancy process was placed on hold rather than stopped.

[89]The Respondent accepted at no time was the letter ever sent to say that redundancy process had been halted. The Claimant’s evidence under cross examination was that this was like “the sword of Damocles” hanging over him. The Claimant never subsequently raised this issue or asked for clarification from the Respondent about the status of the redundancy process No further redundancy discussions were pursued and in any event the Claimant had made it very clear to the Respondent that he was refusing to engage in that process. There were no consequences to the Claimant in respect of this refusal to engage. Dr van den Anker returned to work and the Claimant carried on in his role as support worker. We find therefore that the Claimant was not under the impression that the redundancy process was on pause rather than halted. It simply fell away. Reporting the Claimant for breaching parking regulations

[90]We now deal with one of the Claimant’s claims which was that he was reported for breaching parking regulations in March 2018. The Claimant did not deal with this in his evidence. The Respondent’s witnesses told the Tribunal in various terms that they had heard about reports of someone sleeping in a car parked on the university site and that that car ownership was traced to the Claimant. This was the extent of the knowledge of the Respondents witnesses. Ms Dare explained that she was generally aware of it as it had come up in conversation because parking was part of HR obligations. We have no evidence as to who reported the Claimant and equally no evidence of any detrimental action. The extent of this allegation appears to be that (this was evidence given by the Claimant) under cross examination that it had been raised with Dr van den Anker who raised it with him. He asked why this would be detrimental or less favourable treatment and his reply was that it was “another spoke in the wheel of behaviour towards Dr van den Anker”.

[91]We find that if the Respondent had received reports someone was sleeping in their car it was reasonable to have raised this with the line manager of the person who had ownership of the vehicle. Events from October 2018 – Claimant claims he should be issued a permanent contract under the FTC Regulations

[92]In October 2018 Dr van den Anker was signed off sick again and therefore after that date the Claimant did not attend work and was being paid in full. On 4 February 2019 the Claimant wrote to Professor Clegg asserting that he had obtained permanent status under the FTC Regulations as of 9 June 2017 and he requested a written statement to this effect. The Respondent rebutted this in a letter of 11 February 2019 authored by Ms J Thorne They set out the reasons why namely that they considered the repeated fixed contracts were objectively justified as the Claimant was employed specifically to support Dr van den Anker and that his employment was exclusively funded by Access to Work.

[93]On 5 March 2019 an email was sent to Dr van den Anker as the Claimant’s fixed contract was due to expire three months later. We accept that this was an automatic email sent to managers who line manage an individual on a fixed term contract. In the email it stated that if the individual been employed for four years or more on a fixed contract they must be placed on a permanent contract unless it would be objectively justified and it stated that funding was not an objective reason. The Respondent sought to explain this email in that it was generally applied to research academic staff but this is not what the email said. Hartland report

[94]Nicola Hartland had been commissioned to investigate complaints by Dr van den Anker. We had sight of some of that report (large sections were redacted) relevant to the Claimant’s claims. It was dated 15 January 2019. It records that the Claimant had told the investigator that he had not witnesses any harassment or bullying first hand of Dr van den Anker by Dr Watson. Review of support worker contracts

[95]Around this time in Spring of 2019 Ms Thorne was asked to conduct a review of the Claimant and Ms Sims support work contractual arrangements. Ms Sims was another support worker on a fixed term contract providing support to another supported employee. She was line managed by Ms J Richardson. Ms Sims had started employment with the Respondent on a TSU contract and moved to a fixed term contract. The difference was that Ms Sims did not report to her supported worker but to her line manager Ms Richardson. This differed because Dr van den Anker was the Claimant’s line manager. The Claimant had contacted Ms Sims sometime previously to ask her questions about her role which she appeared to have readily volunteered answers to. She was also funded by Access to Work and told the Claimant that she was on a permanent contract, but this evidently was not the case as we saw a copy of her fixed term contract in the bundle. Ms Sims was not involved in claiming back funds from Access to Work. Her timesheets were sent to her Line Manager, Ms Richardson, they were then sent onto to Access to Work. She also occasionally worked on campus when her supported employee was not in.

[96]A report was authored by Ms Thorne. She had reviewed the Claimant and Ms Sims’s contractual arrangements who were the only two directly employed support workers within the university, both employed within the Faculty of Health and Applied Sciences. It was reported that other supported employees tended to employ their support workers direct or used a different type of support service. The report showed that over the last two years in respect of the Claimant due to Dr van den Ankers’ sickness absence there were 378 days of funding that could not be claimed. Ms Sims had a 102 days of funding that could not be claimed due to absence of her supported individual. It was also highlighted that there was a significant differences in the annual leave entitlements between the support worker and the supported individual which meant that in reality the support workers got the same amount of time off as the supported individual. It highlighted issues such as when the supported employee was off sick that the university could not claim the funding from Access to Work. Claimant’s absence when required to support Dr Van den Anker – summer

[97]On 3 June 2019 Dr van den Anker’s Trade Union Representative contacted Ms Thorne to ask for a replacement support worker to assist Dr van den Anker at an upcoming appeal hearing. She said in the email “as you know [the Claimant] is in Zambia visiting his mother who had been unwell” however this was the first time the Respondent had been made aware of this state of affairs. Ms Thorne wrote to Dr van den Anker about this on 11 June 2019 and asked how the university should treat the leave and when it had started. She also asked what his likely return date was.

[98]On 12 June 2019 Dr Moyle embarked on the consultation process with the Claimant and Ms Sims concerning their contractual arrangements. She wrote by email to the Claimant asking him to attend a consultation meeting, she also explained that they would need to discuss his fixed term contract which was due to expire shortly. She proposed a meeting on 20 June 2019 and we saw that a similar letter was sent to Ms Sims who had already started to engage in the consultation process with Dr Moyle.

[99]In terms of timing it is appropriate to deal now with a letter sent by Debbie England who was Director of HR to Dr van den Anker on 17 June 2019 as this was relied upon by the Claimant as an act of harassment against the Claimant and also direct discrimination. This was a long letter. There evidently had been some ongoing disciplinary and grievance issues involving Dr van den Anker and the Respondent. She had been absent since October 2018 and there were discussions around Occupational Health, return to work relationships with colleagues, moving forward and mediation. Ms England informed Dr van den Anker that they would be seeking confirmation from her that she would make claims for her support worker funding in more timely manner in the future. She also asked about the whereabouts of the Claimant. S104 ERA claim – asserting a statutory right

[100]By 21 June 2019 Dr van den Anker had not responded to Ms Thorne’s enquiries about the Claimant’s absence so she wrote directly to the Claimant via email and posted a letter. She explained the compassionate leave policy was ten days if the individual need to travel abroad and asked for the information to be provided which she had requested in her earlier communication. She told the Claimant that if she did not hear from him by 5pm on 28 June 2019 she would have no choice but to treat him as absent without leave and that his salary would be stopped.

[101]On 28 June 2019 Ms Thorne wrote again to the Claimant. She urged him to get in touch to discuss a number of urgent matters. This included a reference to the imminent end of his fixed term contract which was due to expire on 5 July 2019. The letter also informed the Claimant that his current fixed term contract, which was due to end on 5 July 2019 would be extended until 31 July 2019, to allow sufficient time to consult the Claimant.

[102]On 28 June 2019 at 5:12pm (so after the deadline that Ms Thorne had imposed) the Claimant responded to Ms Thorne by email. He did not respond or deal with Ms Thorne’s reasonable requests for information about his absence. This email is the email relied upon by the Claimant for his s.104 claim in which says that he asserted his statutory right regarding unlawful deduction from wages. He explained he had had “significant issues trying to get an internet connection”.

[103]The Claimant stated: “Your letter has made allusions to issues concerning absence without leave, complete pay cuts subject to 'requested information', breach of contract and invoking a disciplinary process. Further to those factors stated by you and the implicit threat of sanctions, I await your invocation of the same stated sanctions and we will proceed from there.”

[104]Ms Thorne replied on 2 July 2019. She stated as follows: “I wrote to you on 21 June 2019 setting out my concerns that the University had not received any details from yourself or your line manager, Associate Professor Van Den Anker about how you were recording your current absence. I believe this absence may have started sometime in May as you were not available to support Associate Professor Van Den Anker at a meeting on 22 May 2019 on the Frenchay campus. I cannot be sure of exact dates as neither yourself nor Associate Professor Van Den Anker have provided the University with any details. I asked you to contact me by Friday at 5.00pm on 28th June with this required information and clearly stated that if this was not provided by this time and date I would have no option but to treat you as absent without leave. I subsequently wrote to you again on the morning of Friday 28th June to implore you to get in touch with this information. I was extremely disappointed that whilst you did contact me by email on Friday 28th June at 5.12pm, you failed to provide me with any details about the duration of your current absence, your likely return date or how it was being recorded, nor did you provide me with the reasons for failing to provide the required information within the timeframe indicated. You also displayed no intention or willingness to provide this information and respond to a reasonable request from the University. I was also concerned about the tone of your email which I found to be hostile and combative and not in line with the style of response that I might have expected in relation to reasonably asking for this information.”

[105]She also confirmed that Claimant was now being treated as absent without leave and that his pay would be stopped from 1 July 2019 but if a satisfactory explanation was provided it would be reinstated.

[106]Also on that date Dr van den Anker replied for the first time to Ms Thorne’s initial inquiry some weeks before to advise that the Claimant was returning from Zambia on 5 July 2019. She explained that she had drafted an email earlier but had not realised that it had not sent.

[107]Around this time Dr van den Anker had been provided with new Access to Work funding for 36 hours moving forward which would start from 5 July 2019. By 15 July 2019 Ms Thorne had not heard further from the Claimant and the situation remained that they were unable to arrange Dr van den Anker’s appeal hearing without a support worker.

[108]In the meantime Dr Moyle was attempting to progress the consultation with the Claimant regarding support worker contracts. Dr Moyle had been informed by Ms Thorne that they understood the Claimant was in Zambia. The Claimant replied to Dr Moyle on 6 July 2019 asserting that in any event he had permanent contract status and that this matter was coming up for judicial determination at a forthcoming Employment Tribunal hearing. He ended by saying he was glad Dr Moyle had reappeared on the scene and looked forward to engaging with the issues that had required real and meaningful redress. He also gave consent to use an alternative email address (a Gmail address). He did not however say that this was the only email address that should be used.

[109]Dr Moyle replied on 11 July 2019 and raised a number of enquiries with the Claimant, she asked him if he would be able to extend his hours to 36 to support Dr van den Anker and that they would discuss other queries as part of the consultation procedure. A consultation meeting was suggested for 19 July 2019 at 3pm and the Claimant was asked to confirm his attendance by 17 July 2019. He was warned that if he declined to attend the Respondent may make a decision on his absence. It was explained the Respondent did not wish to use an external email account except in an emergency so it was sent only to the work email address.

[110]On 15 July 2019 Ms Thorne wrote again to the Claimant having not had a response to her email of 28 June 2019. She noted he had chosen to correspond with Dr Moyle. Ms Thorne advised as follows: Furthermore, unless I receive from you the information I refer to above by no later than 5pm on 18 July 2019, I will take the view that the pay which you received from 22 May 2019 (being the first date on which we currently know you were not available for work) until 30 June 2019, must be treated as an overpayment on the grounds that you were absent without leave from work, and therefore not entitled to pay, and I will be taking steps to recover that payment from you. If we discover any other period in which you were also absent without leave, in or around May 2019, we will also recover that payment. In this respect, I rely again on the contractual term and the common law position which I recited above. If you have information or explanations to counter the decisions I have taken regarding your absence, I urge you in the strongest terms to provide those to me, so that if appropriate these decisions can be reversed and your pay reinstated.

[111]The Claimant had not confirmed his attendance at the consultation meeting as requested by Dr Moyle so she wrote again on 18 July 2019 setting out the Respondent’s proposals that would have been discussed at the consultation meeting. This time it was copied to the Gmail account. There were two proposals. The first option was to engage a support worker on a self employed basis. The second and expressed preferred option was to employ the support worker on a zero hours contract which would involve removing the administrative burden from Dr van den Anker of employment the Claimant herself. He was advised if he did not respond by 25 July 2019 that decisions would be made in his absence including a possible expiry without renewal of his fixed term contract.

[112]The Claimant replied the same day. He explained he had been expecting to hear form Dr Moyle on his Gmail account and apologised for any perceived discourtesy. He went on to say: For the avoidance of any doubt, notwithstanding UWE's view on the matter, the legal position of my fixed term contract is that it should be a permanent contract that should have been converted in 2017. UWE will be hoisted by it’s own petard in that regard and it remains to be seen whether UWE's view will prevail. As such, your insistence on 'consultation' meetings is misdirected and misconceived. I stated in my previous response of 06 July 2019 that due to the legal position, consultation meetings were redundant. I consider this to be a good reason not to engage in consultation meetings. You may not need to refer to the events of November and December 2017, but a precedent was set at that time by Dr Clegg, Dr Watson, Professor Neill and Shay Dare et al.

[113]On 25 July 2019 Dr Moyle emailed the Claimant and offered him a new fixed term contract but this time the contract was to be a zero hour contract. The deadline for acceptance was 31 July 2019. The Claimant rejected that offer on 29 July 2019. Approval was being sought by HR for Professor Harington to dismiss the Claimant in the alternative to the expiry of the fixed term contract for some other substantial reason citing an irretrievable breakdown of the employment relationship. 4

[114]The Claimant was subsequently sent a dismissal letter on 31 July 2019. The first reason for dismissal was the expiry of the fixed term contract. The letter went on to say that without prejudice to the Respondent’s position that he had not gained permanent status that he was being dismissed due to an irretrievable breakdown in the employment relationship. The Claimant at this point had been in Zambia from either 16 or 17 April 2019 returning on 3 July 2019. The Respondent offered the right to an appeal which was initially progressed but subsequently the Claimant decided not to appeal.

[115]The Claimant relies upon letters and emails sent to Dr van den Anker by Ms England and Ms Thorne in June and July 2019 in a claim for harassment. We have already dealt with the email of 17 June 2019 (see paragraph 99 above) and there was only ever one email from Ms Thorne to Dr van den Anker at this time which was dated 16 July 2019. This was in response to Dr van den Anker seeking to postpone a meeting. Ms Thorne advised that they wanted that meeting to proceed as there was much to discuss. There was nothing in any of those communications we find that can sensibly be deemed to amount to harassment under s.26 EQA. The Claimant’s witness statement did not deal with this allegation. Those communications were reasonable discussions about Dr van den Anker’s return to work and reasonable enquiries as to the Claimant’s whereabouts 4 It was in this email reference was made to a critical log list. particularly given that he was paid in full since October 2018 and performed no work. Failure to provide a suitable workstation

[116]This was not addressed in the Claimant’s witness statement. Dr van den Anker’s witness statement said that it would be normal process to welcome someone into the department to provide them with a workstation, this did not happen in respect of the Claimant and he was not incorporated into the phone system.

[117]The Tribunal asked the Claimant questions about this claim. He had raised it in his letter before action letter in November 2017. The Claimant’s evidence, which we accepted, was that when he first started his employment in 2013 he worked in Dr van den Anker’s office and sat on a chair provided for visitors, he was not provided with a desk or supplied with IT or equipment. He was provided with an IT login and a work email address but not included on an internal database of telephone numbers and it was not until Spring of 2018 that Professor Clegg made arrangements at which point the correct workstation was provided.

[118]There was a relevant email in the bundle from Professor Clegg to Dr van den Anker dated 20 April 2017. Professor Clegg asked Dr van Anker to contact a specified individual to organise the Claimants dedicated workstation, we do not know why there was a delay between 2017 and 2018 but on the Claimant’s evidence such a workstation had been provided by mid 2018. The Law Unfair Dismissal – S98 ERA 1996

The Law

[119]S95 (1) (b) ERA 1996 provides that an employee is dismissed where he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same

[120]S98 ERA 1996 (1) provides that it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. In this case the Respondent relies on the potentially fair reason of “some other substantial reason”. Under S98 (4), where the employer has shown the reason for the dismissal, 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. Unfair Dismissal – S103A ERA 1996

[121]Protected disclosure claims S43B provides: 43B Disclosures qualifying for protection(a) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following—

(b) that a criminal offence has been committed, is being committed or is likely to be committed,

(c) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(e) that the health or safety of any individual has been, is being or is likely to be endangered,

(f) that the environment has been, is being or is likely to be damaged, or

(g) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[122]In Kilraine v Wandsworth London Borough Council

[2018] ICR 1850

, the Court of Appeal held that the concept of information in S43B (1) was capable of covering statements which might also be allegations. In order for a statement to be a qualifying disclosure it had to have sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1) and this was a question of fact for the Tribunal. The disclosure should be assessed in the light of the context in which it is made.

[123]Where the disclosure is said to be a breach of a legal obligation (S43B (1) (b)), if the legal obligation is obvious then it need not necessarily be identified (Bolton School v Evans

[2006] IRLR 500

(EAT upheld by CA)) and Blackbay Ventures Ltd v Gahir

[2014] ICR 747

)). If it is not obvious, the source of the legal obligation should be identified by the Tribunal and how the employer failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more than a belief that certain actions are wrong (Eiger Securities LLP v Korshunova

[2017] ICR 561

). Reasonable belief and public interest

[124]In Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2018] IRLR 837

), the following approach when considering reasonable belief was set out (per

Lord Justice Underhill:

[125]The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable.

[126]The exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative.

[127]The necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence.

[128]While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it.

[129]Public interest is not defined in ERA. The question is whether in the worker reasonably believed the disclosure was in the public interest, not whether objectively it can be seen as such. Chesterton also discussed the issue of public interest (paragraphs 34 and 37) - this was a case where the disclosure was in relation to a breach of the employee’s own contract). S103A Unfair Dismissal

[130]An employee has the right not to be unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[131]There is a different causation test to the detriment claim as the disclosure must be the primary motivation rather than a material influence. Where the employer asserts that the reason for the dismissal was wholly unrelated to any disclosures, the Tribunal must determine the true reason for the dismissal (Abernethy v Mott Hay & Anderson

[1974] IRLR 213

). S104 ERA 1996 Asserting a statutory right

[132]S104 provides:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following are relevant statutory rights for the purposes of this section— (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal, …………………………………..

[133]Mennell v Newell & Wright (Transport Contractors)

[1997] IRLR 519

is a Court of Appeal authority on this provision. The key points from the decision are:

[134]It is sufficient if the employee has alleged that the employer has infringed the statutory right and that the making of that allegation was the reason or principal reason for dismissal. The allegation need not be specific, provided it was made reasonably clear to the employer what right was claimed to have been infringed. The allegation need not be correct, either as to the entitlement to the right or as to its infringement, provided that the claim was made in good faith. (Obiter):

[135]An industrial tribunal has no jurisdiction under the Wages Act to entertain a complaint about a threatened deduction from wages. Section 5(1) makes it clear that the tribunal may only hear a complaint by a worker in a case where the employer “has made a deduction from his wages.” In other words, there must be an actual deduction.

[136]The employer must be alleged to have actually infringed a statutory right; it is not sufficient to allege they intend to do so in the future (Spaceman v ISS Mediclean Ltd

UKEAT/0142/18

[137]However in Simoes v De Sede UK Ltd

[2021] IRLR 974

, the EAT held that it was the original instruction to undertake the working (that allegedly contravened the Working Time Regulations) that constituted the infringement of the employee’s statutory rights. FTC Regulations

[138]Regulation 6 of the FTC Regulations provides:(1) An employee who is dismissed shall be regarded as unfairly dismissed for the purposes of Part 10 of the 1996 Act if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3).

(2) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, of his employer done on a ground specified in paragraph (3).

(3) The reasons or, as the case may be, grounds are— (a) that the employee— (i) brought proceedings against the employer under these Regulations; (ii) requested from his employer a written statement under regulation 5 or regulation 9; (iii) gave evidence or information in connection with such proceedings brought by any employee; (iv) otherwise did anything under these Regulations in relation to the employer or any other person; (v) alleged that the employer had infringed these Regulations; (vi) refused (or proposed to refuse) to forgo a right conferred on him by these Regulations; (vii) declined to sign a workforce agreement for the purposes of these Regulations, or (viii) being— (aa) a representative of members of the workforce for the purposes of Schedule 1, or (bb) a candidate in an election in which any person elected will, on being elected, become such a representative, performed (or proposed to perform) any functions or activities as such a representative or candidate, or (b) that the employer believes or suspects that the employee has done or intends to do any of the things mentioned in sub-paragraph (a).

(4) Where the reason or principal reason for dismissal or, as the case may be, ground for subjection to any act or deliberate failure to act, is that mentioned in paragraph (3)(a)(v), or (b) so far as it relates thereto, neither paragraph (1) nor paragraph (2) applies if the allegation made by the employee is false and not made in good faith.

(5) Paragraph (2) does not apply where the detriment in question amounts to dismissal within the meaning of Part 10 of the 1996 Act.

[139]A detriment will exist if by reason of the act or acts complained of a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he thereafter had to work. An unjustified sense of grievance cannot amount to a detriment but it is not necessary to demonstrate some physical or economic consequence (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[140]Regulation 7 (time limits) provides that an employment tribunal shall not consider a complaint under that regulation unless it is presented before the end of the period of three months beginning in the case of an alleged infringement of a right conferred by regulation 3(1) or 6(2), with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them. A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

[141]Regulation 8 provides where an employee is employed under a contract purporting to be a fixed-term contract, and the contract has previously been renewed, or the employee has previously been employed on a fixed-term contract before the start of the contract, a provision that restricts the duration of the contract shall be of no effect and the employee shall be a permanent employee, if—(a) the employee has been continuously employed under the contract mentioned in paragraph 1(a), or under that contract taken with a previous fixed-term contract, for a period of four years or more, and

(b) the employment of the employee under a fixed-term contract was not justified on objective grounds.

[142]In Kücük v Land Nordrhein-Westfalen

[2012] ICR 682

the CJEU held that a German law stating that to replace one permanent employee with another on a fixed-term contract was not contrary to the Directive. In this case the Claimant had been employed for 11 years under a total of 13 successive fixed-term employment contracts, to cover temporary leave granted to other employees. Although the assessment of the objective reason put forward must refer to the renewal of the most recent employment contract concluded, the existence, number and duration of successive contracts of that type concluded in the past with the same employer may be relevant in the context of that overall assessment. The mere fact that a need for replacement staff may be satisfied through the conclusion of contracts of indefinite duration does not mean that an employer who decides to use fixed-term contracts to address temporary staffing shortages, even where those shortages are recurring or even permanent, is acting in an abusive manner.

[143]The FTC Regulations were considered by the Supreme Court in Duncombe v Secretary of State for Children, Schools and Families

[2011] IRLR 498

. In this case, the Claimant was a teacher employed by the Secretary of State to work in European schools under a treaty established to educate children of staff working in EC institutions. The maximum period of secondment was nine years. The Claimants sought a declaration under Regulation 9 (5) that they were permanent employees. The Supreme Court held that the nine year rule was objectively justified. The Directive and the framework agreement are directed at discrimination against workers on fixed-term contracts in what was in reality an indefinite employment. It may be a desirable policy that fixed-term contracts be limited to work, which is only for a limited term, and where the need for the work is unlimited, it should be done on contracts of indefinite duration. That may even have been the expectation against which the Directive and the framework agreement were drafted. But it is not the target against which they were aimed. Employing people on single fixed-term contracts does not offend against either the Directive or the Regulations. The United Kingdom could have chosen to implement the Directive by setting a maximum number of renewals or successive fixed-term contracts, for example by limiting them to three. It could equally have chosen to implement the Directive by setting a maximum duration to the employment, for example by limiting it to nine or 10 years in total. It is readily understandable why the alternative route of requiring objective justification after four years was taken: this is more flexible and capable of catering for the wide variety of circumstances in which a succession of fixed-term contracts may be used.

[144]Further, it was not the nine year rule that required justification, but the use of the latest fixed-term contract bringing the total period up to nine years. The latest renewal or successive contract has to be justified on objective grounds. Order for considering claims where multiple acts of discrimination are alleged

[145]S212 (1) EQA 2010 provides that 'detriment' does not, subject to subsection (5), include conduct which amounts to harassment.

[146]S212 (5) EQA 2010 provides that (5) where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic. Section 26 EQA 2010 – Harassment

[147]This provides: Section 26 Harassment(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

(5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[148]Part 7 of the EHRC Code provides that unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.

[149]In Hartley v Foreign and Commonwealth Office Services

UKEAT/33/15

the employee had been dismissed for capability reasons. The employee had Asperger’s syndrome. The EAT held that whether conduct is “related to” a disability should be determined having regard to the evidence as a whole; the perception of the person who made the remark is not decisive.

[150]It is a question of fact for the Tribunal as to whether the conduct complained of occurred. If so, the Tribunal must determine if it had the purpose or effect as set out in S26 (1) (b). The test has subjective and objective elements to it. The subjective part involves the tribunal looking at the effect that the conduct of the alleged harasser has on the Claimant. The objective part requires the tribunal to ask itself whether it was reasonable for B to claim that A’s conduct had that effect.

[151]In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

the EAT held that the broad nature of the ‘related to’ concept means that a finding about what is called the motivation of the individual concerned is not the only necessary or possible route to the conclusion that the conduct in question is related to the particular characteristic. Nevertheless there must still be some feature or features of the factual matrix identified by the Tribunal which properly leads it to the conclusion that the conduct is related to the protected characteristic. The Tribunal must articulate what these features are.

[152]General Municipal and Boilermakers Union v Henderson

2015 IRLR 451

provides that a single comment could not constitute harassment because it had not reached the necessary degree of seriousness.

[153]In Reverend Canon Pemberton (appellant) v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham (Respondent) -

[2018] IRLR 542

, Underhill LJ held: S 26 of the 2010 Act [entitled “Harassment”] … is not in identical terms to s 3A of the Race Relations Act 1976, with which I was concerned in Dhaliwal … the precise language of the guidance at para 13 of [that] judgment … needs to be revisited. I would now formulate it as follows. In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the Claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the Claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.' Direct Discrimination

[154]In Nagarajan v London Regional Transport and others

[1999] IRLR 572

HL held that the Tribunal must consider the reason why the less favourable treatment has occurred. Or, in every case of direct discrimination the crucial question is why the Claimant received less favourable treatment.

[155]The key to identifying the appropriate comparator is establishing the relevant "circumstances". In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

this was expressed as follows by Lord Scott of Foscote: a. "...the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class."

[156]On the burden of proof Section 136 EA 2010 provides:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[157]In Igen v Wong

[2005] IRLR 258

(CA) the guidance issued by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd was approved in amended form. The Tribunal must approach the question of burden of proof in two stages. a. “The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the Respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the Respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.” (paragraph 17, per Gibson LJ)

[158]Hewage v Grampian Heath Board

[2012] IRLR 870

(SC) endorsed the guidelines in Madarassy v Nomura International

[2007] IRLR 246

(CA) concerning what evidence is required to shift the burden of proof. Facts of a difference in treatment in status and treatment are not sufficient material from which a Tribunal could conclude that on the balance of probabilities there has been unlawful discrimination; there must be other evidence. Time limits – EQA 2010

[159]S123 EQA 2010 provides:(1) [Subject to [[section 140B]]] 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.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, 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.

[160]The key date as to when time starts to run is the date of the act (Virdi v Commissioner of Police of the Metropolis

[2007] IRLR 24

[161]In British Coal Corporation v Keeble and others

[1997] IRLR 336

the EAT suggested the following should assist Tribunals when considering the exercise of discretion. The relevance will depend on the facts of the case. The Tribunal should consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular to:(a) the length of and reasons for the delay;

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

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

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

[162]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 (per Lord Justice Auld in Bexley Community Centre (Trading as Leisure Link) v Francis Robertson

[2003] EWCA Civ 576

[163]Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, provides that when deciding whether there is a continuing act, the focus should be on the substance of the complaints that the Respondent is responsible for an ongoing situation or state of affairs. The question is whether that was “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.

[164]Where an alleged act is found not to be discriminatory it cannot be said to be part of conduct extending over a period (South Western Ambulance Service NHS Foundation Trust v King

[2020] IRLR 168

). Conclusions FTC claim regulation 8

Conclusions

[165]We consider it appropriate to firstly deal with the fixed term contract status because our findings on the issue of the permanent status would have the potential to effect our findings in respect of the unfair dismissal claim. In other words, if we found that the Claimant should have obtained permanent status in June 2017, this would have meant a different discussion around the reasons for the dismissal relied upon by the Respondent.

[166]Our findings of fact regarding the permanent status issue are at paragraphs 28, 31, 33-41, 43, 50, 64-67 and 92-93 above. The Claimant was appointed to his last fixed term contract from 1 December 2016. It was not in dispute that by 10 June 2017 he had been continuously employed for a period of four years in accordance with Reg 8 (2) (a).

[167]Regulation 8 provides that where the employee has been continuously employed on a series of contracts for a period of four years or more the employee effectively gains permanent status unless the employment of the employee under a fixed-term contract is objectively justified.

[168]The Respondent’s objective justification is the operation and provisions of the Access to Work scheme which requires support workers to be engaged through the terms of fixed term contracts, the length of which is dictated by the Access to Work, and which are reviewed on a regular basis. This is not to say that access to work themselves require funded workers to be engaged on a fixed term basis rather that the funding arrangements determine the fixed term.

[169]We find that the Respondent has shown objective justification as to why the Claimant’s contract was not permanent. The Claimant was recruited specifically to support Dr van den Anker to do a specific role for a specific period. His role was supposed to be wholly funded by the Access to Work grant which was of a fixed duration. The funding decisions were historically and would be in the future made by Access to Work, not the Respondent. The contract was also dependant on the continuing employment of Dr van den Anker’s employment as well as her changing and fluctuating need for support dependant on her health at any given time.

[170]We do not consider that the email sent to Dr van den Anker that states that “funding is not objective reason” derogates from the Respondent’s case. Whilst we found that there was no evidence to support the contention this applied to academic research staff only, it was a generic email sent to all line managers who line managed fixed term staff. In our judgment the Respondent were entitled to consider the funding arrangements in the case of the Claimant objectively justified their decision to keep the Claimant on a fixed term contract given the direct link between the Access to Work grants and the purpose of the contract namely to support Dr van den Anker. Regulation 6 detriment claims

[171]We address these claims in our conclusions below as the Claimant relied upon the same treatment identified under the harassment / direct discrimination claims. Unfair dismissal S98

[172]The Respondent relies upon the potentially fair reason of some other substantial reason with two “sub” reasons relied upon; the expiry of the fixed term contract and an irretrievable breakdown of the employment relationship.

[173]We find that the reason for dismissal was some other substantial reason and that both sub reasons have been proven by the Respondent for the following reasons.

[174]Firstly, the Claimant’s fixed term contract expired on 31 July 2019 (by extension from 5 July 2019 see paragraph 101 above). This amounts to a dismissal. Secondly, the Respondent has in our judgment proven there was an irretrievable breakdown in the employment relationship. At the time of dismissal he had not been undertaking any work (due to the absence of Dr van den Anker) since October 2018. When the Respondent discovered he was in Zambia and had been for some months (whilst on full pay) he refused to engage in consultation or reply to reasonable requests for information by the Respondent as to his whereabouts and reasons for his leave or when he would be coming back. This was particularly an issue as since at least 22 May 2019 the Claimant was unable to support Dr van den Anker at an appeal hearing as he was out of the country. He was not available to do the work that he was contracted to do and when he was reasonably asked about that by the Respondent we find that his reaction and responses were unreasonable. He refused to provide information that was reasonably requested and we agree that the language and tone was combative.

[175]The Claimant appeared to contend that on the basis of an email from Ms Spilsbury (see paragraph 53 above) he had been excluded from the university when Dr Van Anker was absent. There was, in our judgment, a surprising lack of overview of the Claimant throughout the duration of his employment when Dr Van den Anker was absent, sometimes for long periods. We found it surprising that the Respondent did not take any proactive action in regard to the management of the Claimant given that there were long periods of time where he was being paid in full by the Respondent, unable to reclaim those costs, and he was not required to do any work. However we also reminded ourselves that when the Respondent had tried to tackle this issue in November 2017 the Claimant responded in an extraordinarily disproportionate way to an informal consultation meeting by issuing High Court proceedings at substantial cost to the Respondent and to date the subject of an unsatisfied costs order against the Claimant.

[176]Even if we take the Claimant’s case on this issue at its highest, that he understood he was not to attend the university when Dr van den Anker was absent, this does not assist the Claimant. This is because when he was required to be available to support Dr van den Anker he was unable to do so as he was out of the country and moreover refused to tell his employer when he was coming back. This impacted on Dr van den Anker’s situation. The Tribunal considered that the Claimant’s attitude towards his employer when they reasonably asked why he could not undertake this task was wholly unreasonable and showed a fundamental disregard for his employment terms and duties.

[177]The Claimant also refused to engage with Dr Moyle and attend consultation meetings as he had done in 2019 when the Respondent sought to engage with him in respect of a redundancy consultation. Instead he referenced litigation as to means to resolve matters. This was a further clear example of the employment relationship being irretrievably broken.

[178]The Respondent contended that the Claimant’s emails were of a threatening nature. We do not agree they were threatening but they were inappropriate, demonstrated a wholescale disregard for the employment relationship and expressed a wholly misplaced sense of outrage given what he was being asked by the Respondent.

[179]We turn now to consider the reasonableness of that decision by the Respondent under s.98(4) ERA 1996.

[180]The Respondent sought to consult with the Claimant about changing his terms and conditions of employment as well as the upcoming expiry of the fixed term contract. Even when he had refused to engage he was offered a new fixed term contract albeit on zero hours which in our judgment was reasonable given the long periods of absence since 2013 in which Dr van den Anker had been absent and the Claimant was paid in full with no work to perform. This was not a state of affairs that a reasonable employer could maintain as tenable. The Claimant not only refused to take part in consultations he was unequivocal that litigation was the only way forward. He rejected the new contract offer. It is difficult to envisage what more the Respondent could have done to have avoided the dismissal. We find that the dismissal was fair. The Respondent acted reasonably in treating it as a sufficient reason for dismissing the Claimant. Protected Disclosures

[181]We turn now to s.103A ERA claim. This fails on multiples grounds.

[182]Firstly, we found above that the reason for the dismissal was some other substantial reason namely the expiry of the fixed term contract and the irretrievable breakdown in the employment relationship. We do not consider that the reason or the principal reason for the Claimant’s dismissal was that he had made protected disclosures.

[183]The Claimant asserted that he had made qualifying disclosure in accordance with s.43(b) in his letter before action dated 6 November 2017. Our findings regarding this letter are at paragraphs 80-86 above. We have concluded that none of the alleged disclosures amounted to qualifying disclosures for the following reasons.

[184]There were three grounds relied upon.a. That the letter disclosed information which in his reasonable belief tended to show the Respondent had failed to comply with Regulation 8 of the FTC Regulations and;

b. That the Respondent was breaching their legal obligations under the Equality Act and;

c. That there had been concealments of those matters.

[185]The Respondent’s position was that the information in the letter did not amount to a disclosure of information under s.43B and they were no more than “bold assertions and allegations.” We have considered the guidance provided in the case of Kilraine v Wandsworth London Borough Council. We had to consider whether the statements made by the Claimant had sufficient factual content and specificity to be capable of tending to show a breach of those legal obligations. FTC Regulations disclosure

[186]At the time the Claimant wrote the letter in November 2017 he had, as of June 2017 already reached a four year period of employment. The Claimant did not quote the Regulations in the letter, but this is not necessary. He was asked why he had not quoted the Regulations in cross examination and explained that he did not refer to the Regulations as it was before his “invocation”. We concluded this was plainly in reference to his later letter in February 2019 where he did seek to invoke the Regulations. This supports our finding of fact that the Claimant did not at the time reasonably believe that he was disclosing information that the Respondent was in breach of Regulation 8. We find that this was not in the Claimant’s mind at all when he write the letter. This is corroborated by the Claimant referencing a period of 41 months which was the period between the start of his employment and the issuing of the fixed term contract. He did not reference a four year period and that he should therefore be regarded as a permanent employee.

[187]Furthermore, having regard to what was actually said in the letter in our judgment, the information did not have sufficient factual content and specificity such as is capable of tending to show he reasonably believed the Respondent was in breach of the FTC Regulations. Whilst he made reference to being on a series of short term contract, and says there was “was little or no action to effect a permanent contract” this was not sufficient to show he was disclosing information that the FTC Regulations were being breached.

[188]The Claimant relied upon the following as the public interest element: “The Respondent is a ‘public’ body with responsibility to the students and members of the public who use its facilities and services. It is of public interest if such an organization fails to comply with legal obligations prohibiting discrimination.”

[189]This did not address why an alleged breach of an individual’s rights under the FTC Regulations would be in the public interest. In our judgment, the information was not in the public interest. It was self serving – a letter before action and all about the Claimant’s own position. The Claimant did not deal with why the information was in the public interest. Equality Act disclosure

[190]We have considered the letter as a whole as we were not directed to which parts the Claimant asserted amounted to the qualifying disclosure(s).

[191]We do not consider that the following words amounted to a qualifying disclosure: “Dr van den Anker has informed me of derogatory and inappropriate comments made by Dr Watson of me in the course of my work. However intentioned the remarks were, I fully intend to pursue a course of action in that regard as it reflects elements of unconscious and conscious bias and prejudice.” and “You will recall, Dr Clegg, that Dr Watson accused me and Dr van den Anker, in October 2016, of ‘interfering with management’ in the debacle over the four students who complained of inappropriate and offensive behaviour by the departed [name of lecturer].”

[192]This is because he does not provide any detail that could explain with sufficient detail that the Respondent was breaching the Equality Act. He does not refer to any protected characteristic. He evidently raises issues of alleged wrong doing but we do not consider it to be sufficiently detailed to pin that alleged wrong doing to breaches of the Equality Act in respect of the words used. The Claimant goes on to say: “The direct and indirect discrimination, mistreatment, hostility, delay, effective side-lining and oppression experienced by Dr van den Anker and me over months and years are issues which will be pleaded in my particulars of claim … And Dr Neill, in the course of some meetings where I was present, made some highly inappropriate comments that condoned sexism and stated his displeasure at the role Dr van den Anker had taken in assisting the students to be heard and listened to in their complaints regarding Dr Schilling and the handling of their concerns. You Dr Clegg, Dr Neill and Dr Watson were found wrong, or at least found wanting, in your roles and participation in that saga. It is in that context, and your continued complicity in the negative behaviours of Dr Watson relative to Dr van den Anker, that explains your actions, or omissions, regarding negative significant processes initiated against her and against me with the complicity of Human Resources. I specifically refer to the initiatives to investigate Dr van den Anker with the possibility of dismissal and your possibly premature moves to place my role at 'risk of redundancy’. This is partly why Ms Catherine Parker and Ms Helen Spilsbury are co-defendants in my proposed claim too.

[193]In this section, the Claimant alleges there has been ongoing direct and indirect discrimination against himself and Dr Van den Anker. He also alleges that Professor Neill made remarks “condoning sexism” and expressed displeasure at Dr van den Anker’s support for the students. On this basis we conclude that these words did amount to a disclosure of information that tended to show the Respondent was allegedly breaching the Equality Act.

[194]The Claimant had stated that the Respondent was a “public authority” and was under a duty and obligation to comply and meet certain standards. due to the following words: The University, as a public authority under the Human Rights Act 1998, and other relevant statutes, is under a duty and obligation to comply with and meet certain standards. These duties and their non-compliance will be laid out in more detail in my proposed claim.

[195]In our judgment this was not sufficient to show that the Claimant had a reasonable belief the disclosure was in the public interest. The disclosure was made in a letter before action which was followed by a High Court claim. We agreed with the Respondent’s submission that this showed the primary purpose of intention was to advance the Claimant’s own interests to pursue proceedings against the Respondent and obtain compensation. Other than the reference in the letter to the Respondent being a public body there was nothing to persuade us the Claimant had a reasonable belief that the disclosures at the time were made in the public interest. Concealment

[196]The only evidence suggestion of concealments in the letter came in responses from the Claimant to questions under cross examination. He asserted that he relied upon the section of the letter where he states ”Hiding behind ‘the University’ is a favoured tactic and strategy of those involved in the above mentioned factors and behaviours.

[197]This in no way had sufficient detail so as to amount to information tending to show any matter falling within any one of the preceding paragraphs under S43B(1) has been, or is likely to be deliberately concealed.

[198]The reason or principal reason for the Claimant’s dismissal was not the making of the protected disclosure. The reason was due to some other substantial reason as set out above in our conclusions under paragraphs 172-178. The dismissal was nothing with the alleged disclosures and there was no causal link whatsoever in our judgment. This was evidentially demonstrated by the actions of the Respondent after the letter. The Respondent abandoned a redundancy consultation in November through to January 2018, not revisiting this despite further lengthy absences by Dr van den Anker between October 2018 and July 2019, and offered the Claimant a new contract. These were not the actions of an employer seeking to dismiss an employee for having made a protected disclosure some 18 months earlier. S104 Asserting a statutory Right

[199]The Claimant led no evidence on this claim. The Claimant had told Judge Midgely that he replied upon the email that he had sent Ms Thorne on 28 June 2019 as the email containing an assertion of a statutory right not to suffer an unauthorised deduction from wages. We set out the contents of that email above (paragraph 103). The context was that Ms Thorne had told the Claimant that if he did not reply to her reasonable request for information by a certain time that his wages would be stopped. The wording relied upon was as follows: “Your letter has made allusions to issues concerning absence without leave, complete pay cuts subject to 'requested information', breach of contract and invoking a disciplinary process. Further to those factors stated by you and the implicit threat of sanctions, I await your invocation of the same stated sanctions and we will proceed from there.”

[200]This claim fails on three grounds. Firstly, in order to succeed in such a claim, it must have made it reasonably clear in the communication what the infringement was said to be. The reader must understand what the right was being asserted. The Respondent said there had been no assertion. We have concluded that a reference by the Claimant to the Respondent “completing pay cuts” was not reasonably clear as to what right he said was going to be infringed. The Claimant did not set out why the Respondent’s proposed action of stopping his wages would be unlawful.

[201]Secondly, at this point there had been no deduction from wages and as such there can have been no qualifying assertion that a statutory right had been infringed. We consider that the obiter comments in Mennell v Newell & Wright (Transport Contractors)

[1997] IRLR 519

that an employment tribunal has no jurisdiction to entertain a complaint about a threatened deduction from wages as a binding authority when considered alongside Spaceman v ISS Mediclean Ltd

UKEAT/0142/18

[202]Thirdly, there was absolutely no basis to conclude that the Claimant’s dismissal was for the reason or principal reason that he had asserted a statutory right. The Claimant was dismissed for the reasons we set out above. S26 – Harassment related to race, sex or Dr Van den Anker’s disability4.2.1 Treatment of the Claimant by way of hostile glares, stares and disdain by Sean Watson on at least two occasions, one of which was in October

4.2.2 Treatment of Dr Van den Anker by way of hostile glares, stares and disdain by Sean Watson on at least three occasions in spring 2016

[203]Our findings of fact concerning this allegation are above paragraphs 42 and 63. We found that Dr Watson did not engage in hostile stares to either the Claimant or Dr van den Anker. The claims are also substantially out of time. Further, we consider that the allegations (described as such as we found they are unproven) would not form part of an act extending over a period. The allegations are unconnected to the later acts relied upon in 2019 and were isolated specific acts the latest of which was October 2016. 4.2.3 Belittling comments made to the Claimant by Sean Watson on 7 October 2016 about whether the Claimant could mark student work

[204]Our findings of act regarding this allegations are above at paragraphs 55 - 60. The claim is substantially out of time. It is also unconnected to the later acts relied upon which happened almost three years later and related to the Claimant’s absence, dealt with by completely different individuals.

[205]Further, in our judgment the Claimant has not established that the comment by Dr Watson related to his race, sex or Dr Van den Anker’s disability. The Claimant said the comments were made to him in a meeting but the contemporaneous note records that the Claimant was not even present at that meeting and we therefore consider the Claimant’s account is less reliable than Dr Watson’s.

[206]Dr Watson provided a reasonable and entirely plausible explanation for his question which was asked with the purpose and intention of ensuring a suitably qualified person was marking the student work in order to comply with the university’s quality obligations and that if the Claimant was marking work it may have been encroaching on Dr van den Anker’s role considering that the support worker was only supposed to engage in no more than 20% of the supported employees duties.

[207]The Claimant raised no complaint about this at the time. If he had considered it displaying a discriminatory attitude and act of micro aggression we consider he would have raised the issue even informally and he did not. We therefore consider that the Claimant did not perceive to have suffered the effect in question.

[208]We also have concluded objectively that such a comment would not have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. In considering whether the conduct had that effect, whilst we knew what the Claimant’s perception (whilst the Claimant says he perceived this as a discriminatory attitude and an instance of micro aggression) he does not explain why. We do not consider it reasonable to have had that effect given what was said and the context in which it was said. 4.2.4 Julie Thorne sending the Claimant emails and/or letters containing demands and ultimatums between 2 June and 31st of July 2019

[209]Our findings of act regarding this allegations are above at paragraphs 100-105, 110.

[210]We have had some difficulty unravelling the source of this complaint as to where it had been included and detailed as a race and sex related harassment in the three claims. In the Claimant’s third claim presented on 6 August 2019, he brought a harassment claim but this was only pleaded as related to Dr Van den Anker’s disability; race and sex were not referenced. At paragraphs 15 of his complaint he stated: “The Respondents saw and seized on an opportunity to wield the stick when they were informed in May 2019 that I had travelled to Zambia. The wielding, and consequent harassment, was done by Judith Thorne, the fifth Respondent who works in Human Resources. A series of demands and ultimatums were made further to which disciplinary action would follow if not acquiesced to. A start was made when Judith Thorne instructed payroll to stop my salary from 01 July 2019.”

[211]In the Claimant’s further and better particulars dated 29 October 2019 at paragraphs 4.15 he states: “The Claimant does not say the harassment by Judith Thorne (cited as alleged conduct by the Respondents) in this claim (No.1403339/2019) is related to Dr van den Anker's disability. The Respondents put words in the Claimant's mouth.”

[212]This cannot have been the case as it was the Claimant who had completed his claim presented on 6 August 2019. He had not ticked the “race or sex” box in the ET1 form, only disability. It is therefore wholly unsurprising that everyone understood the harassment claim presented in the ET1 dated 6 August 2019 was related to disability and not any other characteristic.

[213]Our primary finding therefore is that no claim has been presented in respect of a race and sex related act of harassment. Nonetheless we conclude as follows. This allegation was not addressed in the Claimant’s witness statement. The correspondence was not related to the Claimant’s protected characteristics or Dr van den Anker’s associated disability. The correspondence was related to reasonable enquiries about the Claimant’s whereabouts given the Respondent discovered the Claimant was unable to undertake his contractual duties to support Dr van den Anker at an appeal hearing and was in fact in Zambia.

[214]There was no evidence as to why these communications had to perceived effect in question on the Claimant. We were unable to consider why and how form the Claimant’s perspective these communications had violated his dignity or created the proscribed environment.

[215]We also have concluded objectively, the contents of these communications would not have had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. It was not reasonable to consider that an employer who was writing to an employee who was absent and refusing to answer correspondence as well as being unable to perform their contractual duty amounted to a harassment environment. To do so in our judgment would derogate from the type of conduct or environment with which S26 is concerned to protect an individual from. 4.2.5 Treatment of Dr van den Anker by the content letters sent by Debbie England on 17 June 2019 and unspecified emails form Judith Thorne (which can only have been the email of 16 July 2019) which enquired as to her ability to return to work and the date on which she might do so

[216]See our findings of fact at paragraph 99 above.

[217]The letter from Debbie England was sent to Dr van den Anker on 17 June 2019 when the Claimant was in Zambia and had told Ms Thorne on 28 June 2019 that he had been experiencing significant connection issues in respect of a Wi-Fi connection. He told the Tribunal he was in Zambia until 3 July 2019. The Claimant told the Tribunal that he had learned about the letters and email because he had gone to Dr van den Anker’s house when he returned to the UK and she had shown him the letters. We do not know why the Claimant says that the content of those letters would amount to race, sex or associated disability related harassment of the Claimant.

[218]We find that they in no way relate to the Claimant’s protected characteristics or Dr van den Anker’s disability. The letters set out the historical and current position with Dr Van den Anker’s absences, with reasonable enquiries and discussions regarding her long term absence and plans for her return to work.

[219]Again, there was no evidence about this led by the Claimant as to how a letter sent to someone else resulted in the Claimant having suffered a violation of dignity or the proscribed environment. Letters sent to someone else (not even the Claimant) about their absence and return to work arrangements would not have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. It was not reasonable to consider that the content of these communications to Dr van den Anker amounted to a harassment environment. This is a further example of where to do so would derogates the principles of S26. Direct race, sex and associative disability discrimination

[220]The Claimant relies upon Ms Sims a female white support worker and / or hypothetical comparators.

[221]Dealing first of all with Ms Sims, we agree that she is not a suitable comparator as she was not in the same position as the Claimant in all material respects. There were no issues in recovering the Access to Work funding for Ms Sim’s support worker hours. She was not line managed by her supported employee but by a separate line manager, unlike the Claimant who was line managed by Dr van den Anker. There were also significantly less “lost” hours for Ms Sims than the Claimant due to their supported employee having less time off. Further, Ms Sims engaged in the consultation process whereas the Claimant did not.

[222]The Claimant led no evidence about hypothetical comparators.

[223]Turning now to the allegations of less favourable treatment. 5.1.1 Delays between March 2014 and December 2016 in relation to the contract finally entered into in December 2016 (Sean Watson)

[224]This claim is substantially out of time.

[225]We do not know who the comparator is said to have been in respect of this claim. If it was Ms Sims, this must fail as the only evidence we had was that she was also on a TSU contract before being offered a fixed term

[226]There was no discussion or focus on how the delay amounted to less favourable treatment. Indeed the Claimant had complained that the fixed term contract contained less favourable terms than the TSU contract (see above).

[227]There were communications from Mr Foster from March 2015 that the Claimant should be on a fixed term contract. The reason why there was a period of time where the Claimant was not issued with a fixed term contract was not because of the Claimant’s protected characteristics or Dr van den Anker’s associated disability. There are a number of factors that contributed to the delay. See our findings of fact at paragraphs 43 – 24 and 64-74. Dr van den Anker had not applied for a renewal of funding when her funding had run out in March 2015 so there were no grant in place from March 2015. Dr Watson sought advice from the Respondent’s advisors ADWUK who prepared a report making a number of recommendations that took time to progress. Dr van den Anker decided to apply for more funding and wanted to employ a different support worker to the Claimant for academic support duties. In fact it was the Respondent who told Dr van den Anker they would not extend the TSU contract any further in May 2016. She was asked to submit the request for a FTC for the Claimant as a matter of urgency and she failed to do this before it expired. There was also a failure by Dr van den Anker to then meet the Access to Work deadline. Even then, the Respondent extended the Claimant’s contract. There then followed the confusion about the additional 15 hours between the Respondent and Access to Work, followed by the student complaint and the impact the investigation had on Dr Watson progressing matters.

[228]All of these factors were the reason why the treatment occurred. None of those factors were related or because of the Claimant’s protected characteristics or his association with Dr van den Anker’s disability. 5.1.2 Changes to the Claimant’s contract in the period October 2016 to December 2016, by which the contract resulted from the terms which had been agreed with the Claimant previously particularly in respect of support hours (Sean Watson).

[229]As noted above, the contract was issued on or around 14 / 15 December 2016 and accepted by the Claimant on 25 December 2016. By this time he must have bene well aware of the terms. If there were terms alleged to have been discriminatory then the time began to run from when those terms were decided upon which must have been no later than mid December 2016 when the terms were offered to the Claimant. This claim is significantly out of time.

[230]The Claimant told the Tribunal the change he complains about is the refusal to entertain the contribution to 36 hours. However as we see in paragraph 47 above, the reason the Respondent did not agree to fund the extra hours was on advice from WECIL as they were of the view this would jeopardise all of the funding. The Respondent reasonably relied upon advice from this organisation. .

[231]Also, the evidence showed that the setting of the terms was nothing to do with Dr Watson. It is unclear exactly who made the decisions on pay (Ms Spilsbury gave evidence as to the reasons why but not the decision maker). What we are able to conclude is that the setting of the terms was not because of the Claimant’s protected characteristics or association with Dr van den Anker’s disability. The terms were pegged to the Access to Work funding and the ensuing affordability factors of the employment costs. 5.1.3. In December 2017 alleging that the Claimant and Dr van den Anker were failing to complete the necessary forms to enable the Respondent to claim back payments from Access to Work in respect of the costs of the Claimant’s salary (Peter Clegg)

[232]This claim is significantly out of time.

[233]The Claimant did not speak of this in his witness statement. There was no dispute that the Respondent raised the failures with the Claimant and Dr van den Anker on multiple occasions but we did not find any evidence of a specific incident in December 2017.

[234]We do not consider that the Claimant has shown that raising an allegation of this nature amounted to a detriment. As we have seen, nothing happened to the Claimant as a result of the failures to make the claims and all that entailed financially for the Respondent, even though this was part of the Claimant’s job description. We were not taken to any evidence about why raising these matters, which we consider to be entirely legitimate matters given the significant financial cost to the Respondent, was because of the Claimant’s protected characteristics and/ or association with Dr van den Anker’s disability. It is inherently more likely that those matters were raised because the Respondent was losing out on funding that had already been provided at significant cost to the Respondent because the claims were not being made. We repeat we make no finding as to why that was the case, but it is unarguable that that was the position. 5.1.4. Failing to provide a suitable workspace for the Claimant in the period July 2013 until January 2018 (Sean Watson, Peter Clegg, Steven Neill)

[235]This claim is substantially out of time. See findings at paragraph 116 - 118. By mid 2018 the situation had been rectified. Professor Clegg had asked Dr van den Anker to make these arrangements in April 2017. We do not know why it took until mid 2018 for these matters to be resolved. Any inaction in proving that provision of that workstation was not because of the Claimant’s protected characteristics or association with Dr van den Anker’s disability. 5.1.5. Initiating the redundancy process relating to the Claimant’s role on 2 November 2017 (Sean Watson, Peter Clegg, Steven Neill)

[236]This claim is substantially out of time. The redundancy process was initiated on 2 November 2017. In our judgment it was entirely evident that the reason for initiating the redundancy procedure was that Dr van den Anker was on long term sickness absence and the Claimant was not doing any work. The Respondent could not claim any funding for his salary. That was the reason for that treatment and it was not related to the Claimant’s protected characteristic or association with Dr van den Anker’s disability. 5.1.6. Reporting the Claimant for breaching the parking regulations at the first Respondent site on 6 March 2018 (R1 only)

[237]This claim is substantially out of time.

[238]We found this claim to be particularly unmeritorious. The Claimant led no evidence as to who reported him, when and what was the less favourable treatment. Reporting an individual who owns a car that is allegedly being slept in on private property does not amount to a detriment. The only thing that happened to the Claimant by his own report was that Dr van den Anker raised this with him verbally. He was not disciplined or sanctioned in any way. Further, the reason this would have been raised was because he owned the vehicle in question. Whoever reported the vehicle would not have known that at the time of making the report. 5.1.7. Placing the redundancy process in respect of the Claimant on hold rather than stopping it on Dr van den Anker’s return to work in December 2017 (Peter Clegg)

[239]This claim is substantially out of time. See our findings above. The Claimant has not proven facts from which we could conclude that the Respondent has committed an unlawful act of discrimination as we found that the Claimant did not consider the redundancy process was paused or on hold. It is difficult to square this allegation with the Claimant’s position at the time. If someone is refusing to engage in a consultation and no consequences follow from that refusal, it is difficult to understand how that person can therefore consider that consultation to be on hold. Conclusions on limitation issues of the FTC detriment, harassment and direct discrimination claims

[240]The Claimant did not pursue a case that it would be just and equitable to extend time. We heard no evidence on why it would be just and equitable to extend time.

[241]We have found that none of the acts relied upon in any event amounted to unlawful acts of discrimination or detriments under the FTC.

[242]Lastly, there was no course of conduct that would amount to an ongoing situation or state of affairs. The allegations were distinct, unrelated and against a wide number of individuals with no link. Regulation 6 FTC claims

[243]We have set out above our conclusions as to why the matters relied upon for the FTC detriment claims, harassment and direct discrimination claims occurred. None of these are attributable to the Claimant having done any of the protected acts set out in Regulation 6 (3). For these reasons we are not addressing which detriments were said to have been done on the ground of which reference to the Regulations, other than to say that many of the detriments pre date and reference to the regulations under Regulation 6 (3 ) (a ) – (i) – (iv) in any event. Claim against named Respondents

[244]Under S109 EQA 2010 an individual employee will be exposed to personal liability if he or she does something which, by virtue of S109, is treated as being done by the employer and that thing amounts to a contravention by the employer of the EQA.

[245]In these proceedings the Claimant has pursued such claims against a significant number of individuals involved in their dealings with the Claimant as part of their roles within the Respondent. A number have already been struck out. Judge Midgely recorded in his order dated 3 March 2020: The Employment Judge explored with the claimant the implications of pursuing claims against nine individual respondents in circumstances where first respondent accepted that it was liable for any acts of discrimination by the individual respondents and was not seeking to run the statutory defence in section 109 (4) EQA 2010. In particular the Employment Judge raised his concern that if the individual respondents sought to blame the other for acts of discrimination, it could lead to separate legal representation being required for individual respondents, which would likely add to the length of the hearing. In addition, in the circumstances where the claimant was not able to identify acts for which he alleged each of the individual respondents were specifically responsible, there may be concerns that including them as individual respondents would not be compliant with the overriding objective. The Employment Judge advised the claimant that it was entirely a matter for him, but he might wish to reflect upon whether he wished to continue with the proceedings against all of the individual respondents. However, in relation to 2 specific allegations which are detailed in the Issues below (as addressed at order 1 below) where the claimant identified multiple respondents, the Employment Judge invited the claimant to review the disclosure had received to see which of the individual respondents he said was responsible for the decision about which he complained and to limit the claims to that individual.

[246]The Claimant as continued to pursue all 9 individual Respondents in these proceedings, requiring them all to prepare and conduct their defences as named respondents. Apart from where specified in Judge Midgeley’s order, it was unclear what complaints were brought against which individual.

[247]Ms McIver, Ms Thorne, Dr Moyle and Ms Dare’s involvement was limited to administrative HR and consultation functions performed as part of their day to day roles. In particular Ms Dare and Ms McIver had extremely limited involvement in their dealings with the Claimant. Apart from Dr Moyle’s involvement in the alleged harassment, it was not explained why the others had been named as Respondents.

[248]Professor Steven West never even met the Claimant or had any dealings whatsoever other than to have been copied into his letter before action in November 2017. The complaint against him was justified by the Claimant on the basis he was the Vice Chancellor and had an element of responsibility of high office. On this basis the Claimant refused to withdraw the claim against him when invited to do so by Mr Mitchell.

[249]The claims pursued against individual named respondents were unreasonable and misconceived. Extremely serious, unspecified and unsubstantiated discrimination claims were brought against individual’s within the employment of the first Respondent who in the main were undertaking reasonable and necessary line management or HR duties within the course of their employment.