Mr P S Bassi v Network Rail Infrastructure Ltd: 1401371/2024

EMPLOYMENT TRIBUNALS

Case No 1401371/2024

Between

Mr P Singh BassiClaimant

Network Rail Infrastructure LimitedRespondent

Before

Employment Judge Self

Mr A Prince - Counsel for claimant

Date 11 March 2026

JUDGMENT

[1]By consent, the Claim of unfair dismissal is well founded and is successful.

[2]The Claim of direct perceived disability discrimination is not well founded and is dismissed.

[3]The claim of discrimination arising from the Claimant’s perceived discrimination is dismissed upon withdrawal.

[4]Upon the Tribunal considering that it would be just and equitable for time to be extended the claim of race harassment is partially successful in that allegations 6.2 and 6.3 are well founded and are successful. The remaining claims are not well-founded and are dismissed.

[5]The claims of direct race discrimination are not well-founded and are dismissed.

[6]The claims of victimisation are dismissed upon withdrawal.

[7]This matter will be re-listed for a remedy hearing. Directions for the same are provided at the end of the Written Reasons

REASONS

[1]By a Claim form issued on 7 June 2024 the Claimant sought compensation for what he contends were acts of race discrimination, perceived disability discrimination, victimisation, and unfair dismissal. The Claimant describes himself as being of British Indian ethnic origin, and states that the perceived disability was a combination of stress / anxiety / depression.

[2]ACAS Early Conciliation had been undertaken between 3 April 2024 and 15 May 2024 with the Claimant having been dismissed on 14 March 2024 after 24 years’ service. Accordingly, any act prior to 4 January 2024 may, subject to being part of a continuing act, be out of time. That is an issue in the case for the Tribunal to determine and if any allegations are deemed out of time then we will consider whether time should be extended on a just and equitable basis.

[3]There was a Case Management Hearing at which directions were set and a List of Issues arrived at. The issues to be determined have been gradually reduced both before and during this hearing with certain allegations having been withdrawn, including the totality of the victimisation and section 15 EqA disability arising claims plus, certain race and perceived discrimination harassment / direct discrimination claims. The individual allegations that have been withdrawn are marked with “…….” in the List of issues and the integrity of the original numbering from the Case Management Order has been retained. Just before closing submissions the Respondent indicated that, on the basis of the evidence presented throughout the case, they were prepared to concede that they had, in fact, unfairly dismissed the Claimant. We consider that to have been a sound decision on the evidence we heard.

[4]Whilst grateful for the numerous concessions made by the parties, which we consider to have been appropriately made, a comprehensive review of the chronology is still required, in order to place the remaining claims in context. The final liability List of Issues that the Tribunal had to determine are set out below. Preliminary Issues: Time/limitation issues The claim form was presented on 7 June 2024.

[2]Accordingly, any act or omission which took place more than three months before that date (allowing for any extension under the early conciliation provisions) is potentially out of time, so that the tribunal may not have jurisdiction.

[3]Can the Claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? Is such conduct accordingly in time?

[4]Was any complaint presented within such other period as the Employment Tribunal considers just and equitable? Unfair dismissal

[5]It is agreed that the Claimant was unfairly dismissed. Harassment related to race

[6]Did the Respondent engage in alleged unwanted conduct as follows : 6.1. ……. 6.2. Leaving an English Defence League/BNP leaflet in Claimant’s locker (paragraph 7.1 of ET1) on or around January 2019. 6.3. Leaving two items of racist and bullying material in communal area with Claimant’s name on them, with comment alleging that Claimant was responsible for a recent stabbing on or around January 2019. 6.4. The matters referred to at paragraphs 10 below

[7]Was the conduct related to the Claimant's protected characteristic?

[8]Did the conduct have the purpose of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? If not, did the conduct have the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? In considering whether the conduct had that effect, the Tribunal will take into account the Claimant's perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Direct discrimination on grounds of race

[9]The Claimant is of British Indian ethnic origin.

[10]Did the Respondent subject the Claimant to the following alleged treatment falling within section 39 Equality Act, namely:- 10.1. …….. 10.2. In January 2019 the Respondent, particularly Darren Phillips would not have asked the Claimant about the broken knives incident, without actually being given details of such incident, and then the Respondent, particularly Darren Phillips under direction of Karen Jarvis would not have asked the Claimant to go home, had it not been for the Claimant’s race. 10.3. The Claimant would not have been moved departments on or around 18 February 2019 (as set out in paragraph 5 of the ET1) ‘to safeguard him and his welfare’ following the raising of complaints, including complaints of discrimination; 10.4. The Claimant was moved departments following the unsubstantiated allegations regarding the broken knives incident made by Darren Phillips on or around January 2019 (as set out in paragraphs 5-8 ET1), which were never actually put to the Claimant prior to him being moved. In contrast, when the Claimant made allegations of racist behaviour against him no further action was taken as it was said that the perpetrators could not be identified. The Claimant alleges that this demonstrates less favourable treatment and asserts that he would not have been required to move departments as a result of unsubstantiated allegations but for his race. 10.5. The Claimant, in the report from the neutral assessment prepared for Karen Jarvis by CMP dated 17 August 2020, being blamed for the breakdown in relationships in the department, when the reasons given for the Claimant being responsible for this breakdown included the Claimant making complaints of discrimination. 10.6. The Claimant’s colleagues alleging that they did not feel safe working with the Claimant, and the Respondent, particularly Karen Jarvis using this as a basis for not permitting the Claimant to return to his substantive role and/or any other trackside role on or around 17 August 2020. 10.7. The failure by the Respondent, particularly Karen Jarvis, to allow the Claimant to return to work following his successful appeal against his dismissal in June 2021. 10.8. ….. 10.9. …... 10.10. …… 10.11. The Claimant would not have been prevented from returning to his substantive post, had it not been for his race. This ultimately resulted in the Claimant being dismissed in April 2021 ……, which the Claimant alleges is a further act of direct discrimination.

[11]Did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated the comparators? The Claimant relies upon hypothetical comparators.

[12]If so, can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic?

[13]If so, what is the Respondent's explanation? Can it prove a non-discriminatory reason for any proven treatment? Disability

[14]The Claimant does not allege that he is disabled but alleges that the Respondent discriminated against him as outlined below on the ground of a perceived disability of stress/anxiety/depression. Direct discrimination on grounds of disability

[15]Did the Respondent, in particular Karen Jarvis, Darren Phillips and Chris Jackson perceive that the Claimant had a disability of stress/anxiety/depression?

[16]If so, did the Respondent subject the Claimant to the following treatment falling within section 39 Equality Act, namely:- 16.1. In January 2019 the Respondent, particularly Darren Phillips would not have asked about the broken knives incident, without actually giving details of such incident, and then would not have asked the Claimant, under direction of Karen Jarvis, to go home, had it not been that the Respondent perceived that the Claimant had a mental illness (despite receiving an occupational health report that he had no such illness, and was fit to return to work); 16.2. The Respondent, namely Karen Jarvis on or around 18 August 2019 prevented the Claimant from returning to his substantive post on the grounds of a perceived mental illness, even though occupational health had cleared him as fit to return to this substantive post; 16.3. The Claimant was moved department (by Karen Jarvis) on or around 18 February 2019 following the unsubstantiated allegations regarding the knife incident, which were never actually put to the Claimant prior to him being moved. In contrast, when the Claimant made allegations of racist behaviour against him no further action was taken as it was said that the perpetrators could not be identified. The Claimant alleges that this demonstrates less favourable treatment, and the Claimant was moved, as a result of unsubstantiated allegations because the Claimant perceived the Claimant to have a mental illness, despite obtaining medical evidence to the contrary; 16.4. In the referral forms to occupational health dated 1st October 2019 and 13 August 2021 Karen Jarvis alleges that the Claimant had a mental illness and was paranoid, despite previously obtaining medical evidence to the contrary; 16.5. The Claimant’s colleagues, in the neutral assessment on or around 17 August 2020 alleging that they did not feel safe working with the Claimant, and the Respondent using this as a basis for not permitting the Claimant to return to his substantive role and/or any other trackside role; 16.6. The failure by the Respondent to allow the Claimant to return to work following his successful appeal against his dismissal on 18 June 2021; 16.7. The Respondent making insufficient efforts to find the Claimant alternative work, both prior to his dismissal in April 2021, and following his successful appeal against that dismissal. 16.8. ……. 16.9. The Claimant was ultimately dismissed in April 2021 ….

[17]Did the Respondent treat the Claimant as alleged less favourably than it treated or would have treated the comparators? The Claimant relies upon hypothetical comparators.

[18]If so, can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because they perceived that the Claimant was disabled?

[19]If so, what is the Respondent's explanation? Can it prove a non-discriminatory reason for any proven treatment? Discrimination arising from perceived disability

[20]…………. Victimisation 24……………… 5. The Tribunal heard evidence from the Claimant in support of his own case and heard from Mrs K Jarvis, Ms Y Egala, Mr C Jackson, Mr D Stanley, Mr T Paine and Mr C Jones. There was a substantial bundle of documents extending to 1093 pages and there were other documents supplemented in during the course of the hearing. Both advocates provided helpful and comprehensive closing submissions and the Tribunal would like to extend their thanks for the assistance both counsel gave to the Tribunal during the course of the hearing. The Facts 6. The Claimant was employed as a Single Works Operative Track Worker in the Operative Works Delivery Team at the Eastleigh depot, and the Claimant described his main responsibilities as being renewal works for signalling equipment plus providing look-out from time to time whilst trackside. The Claimant states that he was in a three-person team with Mr Wilson and Mr White between 2009 and 2015. Mrs Jarvis indicated that teams of three were the core unit at the depot working days, nights or a mixture. There would normally be a Team Leader, a Technician and an Operative in each team. Above them was a supervisor and then a first and second line manager. The Respondent emphasised, and it seems obvious, that the work is done in a safety critical environment where trust is essential and each employee needs to rely on the other to ensure high safety standards are maintained. All parties agreed this to be the case. 7. The Claimant had been employed since 1999. There was limited information before the Tribunal as to incidents that had taken place in the early parts of the Claimant’s employment. He indicated that there had been the occasional falling out which was then rectified. In one of the questionnaires over the “clippings” incident Mr Ayer indicated that “managers in the past had tried to sort this issue out and haven’t been able to” but we had no assistance as to precisely what that was referring to. There was no evidence before us that the Claimant had had any safety concerns about his work in previous years and nor was there any suggestion that he had been the subject of any discipline matters, prior to the matters we are concerned with in this case. 8. There was ample evidence that Mr Nick Wilson and the Claimant did not, and had not, for some time seen eye to eye. We have not had the benefit of hearing from Wilson in this hearing. The Claimant explained that his relationship with Wilson became strained when Wilson failed to curtail smoking in a vehicle the Team used, despite being asked to do so by the Claimant. Mr Lawlor, who was the line manager at the time, spoke with both men and it is asserted after that Wilson “pointed his finger at the Claimant and said he would get him back one day”. There was a further argument with Wilson and the Claimant when a holiday Wilson wished to take was not approved and Lawlor moved the Claimant off night shifts on account of the differences which had become apparent. There is nothing more than supposition on the part of the Claimant that would suggest that any of the alleged antipathy detailed above was on account of race or any other protected characteristic. There are no supporting documents within the bundle about any of the matters identified above, which is perhaps unsurprising taking into account the length of time since these matters are said to have taken place. 9. The Claimant was absent from January 2017 until early 2018 on account of a broken arm. As a result of that time off the Claimant lost his certification for Personal Track Safety (PTS). It is important to understand what PTS in this case as it is of some importance. 10. Jarvis provides a good summary of it within her witness statement but in brief: a) Everybody who is trackside must hold PTS and it helps to ensure that only those who are qualified and fit can work in those areas. b) Those who are PTS qualified hold a PTS Card and it can be valid for up to 5 years. Use of the card is required to get trackside and there is a medical, a learning module (e-learning and face to face) and then trackside assessment via mentoring. c) The Claimant lost his PTS due to his long-term sickness absence in respect of his arm and at no point thereafter was he fully PTS trained and, at best, could only work under mentorship / observation. 11. The Claimant returned to work after his injured arm on light duties in the Yard. Sometime after his return there was an incident on 8 June 2018. Wilson indicated to Mr Smith, a Works Delivery Manager, that he wasn’t prepared to work with the Claimant and that the Claimant had threatened him with a knife. The police were called and made enquiries but did not take the matter any further. Smith escalated the matter to his manager Mr Clark, who attended at the site took some statements himself and sought to speak with the Claimant who refused to speak with him. 12. Following this Mr Scott, the Financial Controller was asked to conduct an investigation, and he took statements from Wilson, Clark and Smith. Wilson asserted that the Claimant had approached him in an “enraged state” and was holding a kitchen knife in his hand. It was the type of knife one might eat one’s food with. Wilson accepted that there had been no threat to stab or attempt to stab him. The Claimant indicated that he had been hit in the leg by an office chair from behind and that Wilson told him that he had told the Claimant he would get him and called him a “motherfucker”. The Claimant asserted that he had raised his hand towards Wilson whilst telling him to “leave it out”, but this was after Wilson had taken a swing at him and missed. 13. The Claimant asserts that at some point Scott asked the Claimant if he thought that race played a part which the Claimant describes in his statement as being “unprofessional and upsetting”. Scott no longer works for the Respondent and so has not been able to rebut this allegation. We note that despite the Claimant amending the notes of the 11 July meeting, no such statement is recorded and that is surprising if the Claimant was affected as described by himself and considered that Wilson’s acts amounted to racial harassment. In those circumstances one would think that the Claimant would seek for the same to be added to the minutes or raise a contemporaneous complaint about it. At later points the Claimant was assiduous in ame3nding motes of formal meetings. This matter was withdrawn as an allegation of racial harassment following the Claimant’s evidence. We consider that to have been an appropriate course of action taking into account the evidence we heard. 14. On 20 August the Claimant was invited to a disciplinary meeting in relation to threatening Wilson and being verbally aggressive to him. Wilson had made a complaint and the Claimant had made a counter complaint in his statement. Why it was that Scott determined that only the Claimant should be subject to a discipline complaint is lost in the mists of time. 15. Mr Ayling considered the matters on 28 August 2018 and at the hearing the Claimant confirmed that he was holding spoons in his hand at the time the issue was going on. They were in his possession as he was going to change a wheelbarrow wheel! Mr Ayling appears to have formed the view that the Claimant was at fault as he was found to have showed some aggressive behaviour by raising his arm. There is no detailed analysis of the incident and precisely what was found. A first written warning was given along with the recommendation that there be mediation between the two men. 16. This sanction must be taken to reflect a finding that the incident was not as serious as had originally been claimed by Wilson. Jarvis explained that was her conclusion also. OH were to monitor the Claimant’s ongoing phased return to work and there was recognition that the process had been stressful for the Claimant and that contact could be made to Validium so that counselling sessions could be arranged. The Claimant was given the opportunity to appeal the sanction but did not do so. 17. In many situations that would have been the end of it. The Claimant received a relatively mild rebuke. Mediation would take place and the hope would be that the two individuals would continue their employment if not as friends then at least not at each other’s throats. Sadly, that was not the case. 18. The Claimant was referred to OH by Mr Minikin who had been the Claimant’s second line manager at the time. Jarvis told us that Minikin was taken ill soon after the referrals were made and that she took over from around October 2018. It was a promotion for Jarvis and the Claimant’s line manager (Mr Dunn) was similarly new in post. It was an unfortunate coincidence that both of the Claimant’s managers were new in post at the material time and were lacking in managerial experience. 19. Minikin made the referrals to OH and on 28 September a report stated that the Claimant was unfit for work because of his arm and that a mental health assessment could not be made due to the nature of the appointment. On 17 October Dr Milne from OH indicated that he could not detect any mental illness and, indeed, the Claimant had asserted that he had none. The Claimant was expected to be able to give effective service with the only slight caveat being temporary restricted lifting capability. 20. It appears that the Claimant finally returned to work on 18/19 November. The parties disagree on this point, but the 19th is taken from the report of complaint signed by seven workers and the 18th from the Claimant’s statement. The Claimant had not been trackside for a substantial period which meant that he needed to regain his competencies for his substantive role. On his return Jarvis was his second line manager and the Claimant was working light duties in the depot. The Claimant states that when he returned his colleagues were acting differently towards him by not speaking to him and the Claimant asserts that this was the case “because they had been made aware of the incident with Wilson”. Pausing there if the Claimant is right that there was a change of attitude by his colleagues, he has answered the question of the main reason why it happened himself and that answer does not appear to relate to anything to do with any protected characteristic.

The Facts

[21]On 21 November Smith who was the Claimant’s supervisor wrote an email to Jarvis saying that “he was extremely uncomfortable with the Claimant returning to the workplace the way he has”. He wanted instructions on how the Claimant should be “dealt with” and that he had been on the receiving end of the Claimant’s outbursts in the past and that the Claimant was acting in a strange manner which led to Smith not being comfortable around the Claimant. Jarvis said that others were of the same view and that it was they who had told him about the Claimant’s strange behaviour. Not unreasonably Jarvis indicated that she would need further details preferably in writing if she were to do something.

[22]Pausing there and taking stock there had been an altercation and it was likely that staff had not been told what the outcome had been, save that they knew that the Claimant was still employed and had returned as opposed to being dismissed. We are also quite satisfied that everybody (or if not everybody, many people) would have known what the allegation was against the Claimant and especially that it was said that he was holding a knife. It is highly likely, in our view, that the incident had been exaggerated to some extent via retelling. All of the above is reflected in the discomfort the Claimant experienced on his return which we accept was true, and also there was major irritation / disgust that the Claimant had not been dismissed or treated more harshly at the very least. That is clear from the letter of complaint from the seven.

[23]That document from Mr Taylor was signed by him and six other employees from the Eastleigh depot (including Wilson). It was asserted that the staff “feel very uncomfortable with (the Claimant) being back at work. We do not trust him” (971). It was asserted that the Claimant was still displaying “odd and strange behaviour” which included “hiding in a corner silent, so you are not aware of his presence”. Taylor indicated that staff did not feel safe or comfortable with him and that he and others did not want to be in the same room as him. Whilst there is no doubt of the feelings expressed, there is a paucity of information as to specifically what the Claimant had actually done to provoke this view. Jarvis accepted that she did not investigate with each of the individuals the basis for their views in terms of specific issues and did not put to the Claimant the allegations (vague as they were).

[24]Jarvis states that she was holding one to ones with the Claimant at this time and formed the view he was “an unusual individual”. She cited: a) That the Claimant seemed fixated with past events; b) That he was paranoid that he might be suspended again and wanted to wear a body camera to protect himself. If the Claimant had formed the view that many staff were against him then he was correct in that. If he was paranoid it was because he was right – individuals were shunning him and were complaining to management about him. If he held the view that he had been the victim of a false allegation in the past and did not wish to be the subject of one in the future then his desire to try and protect himself evidentially is also understandable. If he was fixated with past events then it could be said so were his opponents. The Tribunal is unsure that such behaviour in the circumstances that pertained were such as to mark the Claimant out as being particularly unusual and it may well be that Jarvis fell into the trap of absorbing some of the negativity towards the Claimant herself and failed to consider matters on a 360-degree basis.

[25]It is apparent that the Claimant was feeling under some pressure at this time. In one meeting with Jarvis, he indicated that he might “end it all” which, not surprisingly, was a concern and she referred the Claimant to OH and the Claimant was suspended in the meantime. In the context of the working environment Jarvis was bound to refer the Claimant. She was not qualified to make any form of medical assessment, but was required to have the situation checked out. We do not consider that she held any perception about the Claimant’s mental health state at this time but was simply seeking a view from a professional about whether the Claimant was safe to be at work.

[26]At the OH appointment on 12 December 2018 the Claimant stated that his comment was said in the heat of the moment and that he would never consider such a thing. In his witness statement he indicated that what he actually meant was that he was going to end the meeting. The Tribunal notes that was not his contemporaneous explanation to OH and we reject what he says in his witness statement. The Claimant’s oral evidence was, at all times, chaotic with different versions of the same incident tumbling from him on a regular basis. The Claimant was a poor witness in terms of consistency and often just seemed to blurt out the first thing that sprang to his mind. It was difficult to consider the Claimant as a reliable witness for much of his time at the witness table.

[27]To OH the Claimant denied that he had any mental health issues. OH suggested that the Claimant was still finding it hard to come to terms with recent events and that mediation would assist the process. The evidence we have suggests that Wilson was not prepared to mediate and no pressure was seemingly put upon him to do so. The Claimant was deemed fit to work and was clearly said not to be disabled. That was the information provided to Jarvis and we find that she accepted that medical advice.

[28]On 26 November 2018, a leaflet produced by the English Defence League asking what individuals were doing to protect their children from Islam was found in the Claimant’s boots which were in his locker. There is no challenge to the fact that it was found and nor has there been any positive case advanced to suggest that the Claimant was not telling the truth about that. The Claimant gave it to Dunn his line manager and he passed it on to Jarvis. Jarvis indicates that she was told by Dunn that the Claimant did not want anything done about it and it appears that this is where this issue was left. The Claimant indicates he was shocked by the leaflet being left as it was, and was concerned that nobody followed up on it.

[29]The Respondent’s laissez-faire attitude is very hard to comprehend and Jarvis accepted that in hindsight more could have been done. Within a week of the Claimant’s return to work following a previous altercation, it was abundantly clear that peace was unlikely to break out taking into account the feedback Jarvis had received. It should have been clear that the Claimant was being ostracised and that something needed to be done. There was then an act that the Tribunal consider to be of some gravity when the leaflet was placed in the Claimant’s boot. It was a further manifestation of somebody within the team or some bodies indicating that they did not want the Claimant at work and there is a very clear racial message contained within. The pressure had been ramped up significantly. The Tribunal does not consider that the fact that the leaflet was about the perceived perils of Islam which was not the Claimant’s religion made any difference. The Claimant was simply lumped in together with what the purveyor of the literature perceived as a dangerous “other”. The Tribunal are quite sure that this was a clear an act of racial harassment / intimidation towards the Claimant as part of the ongoing campaign by a colleague or colleagues. It was the first time that race had played a part from the e3vidence we have before us.

[30]The Claimant did not come across as a man of particularly forceful character. When asked a question as to why he had not acted more strongly during a meeting he explained “I was weak”. That was about as clear a piece of evidence as we heard from him in the three days of cross examination. We accept his assessment. We find that he did not say much when he handed the leaflet over to Dunn. In all likelihood, he was resigned to the treatment he was getting and he certainly held little faith in management to sort it out. But even if the Claimant did indicate that he wanted nothing done about it then this was a situation we find where doing nothing really was not a viable option for the Respondent. As the Respondent’s harassment policy states: “Harassment and bullying if unchallenged and or not dealt with effectively can have a serious detrimental impact on individuals' work performance, health, and personal life. It can impact on the business in terms of employee and organisational effectiveness. The extent of bullying and harassment can be hidden as employees who are bullied or harassed may feel vulnerable and reluctant to complain, for example, fearing reprisal or not being taken seriously”

[31]The policy was very prescient and it is highly unfortunate that these words were not heeded. The Tribunal finds that the decision to do nothing from an investigatory perspective was a highly unfortunate error of judgment on the part of the Respondent and sent out a message to the bullies that they could act with impunity and a message to the Claimant that he was not going to be protected. It is really from this point that the Respondent deviated from an appropriate path and the consequences were unhappy and proved to be long standing.

[32]The Tribunal accepts that there was no guarantee that a culprit would be found even if there had been an enquiry, and it was highly unlikely that a confession would be forthcoming. Having said that taking into account there were certainly a number of potential suspects, and one in particular, who may have been legitimately questioned about the incident. In the absence of any specific evidence that it did take place we find that the messages that Jarvis said that she asked her managers to pass on re the incident were not passed on effectively or probably at all. To do nothing was weak management and only strengthened the bullies’ position at the expense of the Claimant. It was said that the Claimant took annual leave that was due to him and only returned in January. It began the Claimant’s regular exclusion from the work place.

[33]Very soon after the Claimant’s return in January two copies of the Metro newspaper were left to be found showing a headline that said, “Knifed 9 Times” and written in marker pen on the bottom were the words “It was Parm” clearly referring to the Claimant. One was left in the Claimant’s boots again, and the other was in a drawer in the kitchen along with a kitchen knife. This was clearly, we find, a reference to the previous disciplinary incident. In his statement the Claimant indicated that he felt bullied by this action and was shocked and saddened that he had been targeted. His feeling that he was not welcome at that point by some or all of his colleagues is entirely understandable and correct. The Claimant’s evidence as to when he became aware of the note in the drawer was far from clear. He eventually settled on it being about a year and a half after the event. His witness statement in this regard was not correct and indeed there were a number of occasions when there were substantial material differences between his written statement and his answers orally. This evidence is also at variance with what he is noted to have said to Jarvis when she spoke to him about it (160) where he is said to have accepted that he touched the letter in the drawer but then just left it in there.

[34]A statement was sent out to all staff in the depot which indicated that the clippings were in “incredibly bad taste” and had been used to “torment a team member” and was in breach of the (Respondent’s) bullying and harassment policy. The fact there had been other offensive material sent to the Claimant was mentioned. A questionnaire was sent to several staff. It gave a time span and then asked who had been in the drying room at certain times , whether anybody had been into the cutlery drawer and whether anything unusual was noted. Nobody was actually asked if they had put it in the drawer or if they knew who had done, save for the Claimant. The discovery was actually made on a Thursday.

[35]Wilson, Marsh and White all suggested that the Claimant often brought the Metro in and seem to be suggesting that it was the Claimant himself who had produced the clippings. Most of those questioned were able to offer nothing to the investigation and some reflected that it was unpleasant / shameful what was happening. One indicated that management had failed to sort out the issue. That was a correct assessment from what we have before us.

[36]The investigation yielded nothing although it does not seem to be a particularly thorough one with particularly effective questions asked. Even if a culprit could not be found it seems that action needed to be taken so as to try and curtail the escalating bullying against the Claimant.

[37]On 21 January in a further bizarre incident all the knives in the cutlery drawer were broken in half. That was initially reported by Mr Egerton the Night Supervisor who contacted a number of other supervisors and Phillips contacted Jarvis by email at 2315. Jarvis in her statement indicated that staff were asked about the broken knives by her managers. The Claimant states that he was simply asked if he had noticed anything out of the ordinary. The Claimant’s recollections were poor and inconsistent throughout his evidence and even though we have not heard from Phillips on this issue we consider on the balance pf probabilities the broken knives were mentioned to the Claimant and all others at the time.

[38]Jarvis stated that she linked the broken knives to the previous clippings and knife incident and “felt that she needed to act to protect his welfare”. It is not clear that there was any real investigation into the incident in terms of interviews / questionnaires and the like. It is unfortunate that these decisions were not well documented at the time. The Claimant was sent home on full pay but was never asked whether he wanted to be sent home for his own protection. We consider that the Claimant’s views should have been taken into account. Subject to the possibility that the Claimant had been doing the incidents himself, which we do not have the evidence to find, the Claimant was the victim in this extended bullying situation. Further it is clear that the decision to move the Claimant was not something that the Claimant was consulted on before the decision was taken.

[39]It would appear that that decision had been taken even before the broken knives incident. In an email dated 24 January (Thursday) Jarvis wrote to Rowe, a fellow manager, at the same level and starts it “further to our discussion last week”. That appears to date the conversation at some point between 14 and 18 January. That would fit in with the position after the clippings’ incident and is contrary to Jarvis’ evidence at 5.8 of her statement that a decision was made at that time to “take stock” and “see how things went for a week or two”.

[40]As Jarvis states on 24 January, she “would like to organise the move for (the Claimant) as soon as possible”. Rowe writes back on 28 January to say a call is needed because he is “not sure that Basingstoke is the correct depot to put (the Claimant) in.” There would appear to be further discussions because on 4 February Jarvis states that subject to controls being put in place she thinks she can make Eastleigh work and on 13 February Rowe writes as follows: “To confirm that (the Claimant) will start at Eastleigh S&T on Monday 18th February for six months. He will report to Peter Clarke. I can confirm he will not be asked to go to Dutton Lane for any reason. I will expect yourself to arrange his medical and PTS training. Once he has passed these I will expect him to work as part of the signalling team and work on site everyday. If I have an issue with the individual, I will be cancelling this arrangement and return him back to you”. The Tribunal read this exchange as being highly suggestive that Rowe is not that keen to take the Claimant on. We note that an individual who is not currently qualified to go on track would not be far from ideal, even leaving aside any other issues.

[41]In oral evidence Jarvis stated that the Claimant asked to be moved and therefore the move was at his instigation. That is not reflected in her witness statement or by the timing of discussions drawn from contemporaneous documents. On balance we consider that the decision to move the Claimant was one that was taken without consultation with him and presented to him as a fait accompli which was not challenged by the Claimant or his Trade Union. The Tribunal can see the attraction of such a course of action to the Respondent as it was the easiest and most convenient one. What it did not do was challenge the pernicious workplace culture that had driven the Claimant out and nor did it necessarily provide a long-term solution. It seems it was driven by hope that something positive would turn up for the Claimant as opposed to any expectation. There was an abject failure to address the issues at the time simply created and the Claimant was moved on so as to try and rectify a situation that was not of his making.

[42]The Claimant moved to his new team on a Temporary Secondment and as stated earlier, his manager was Mr Clarke. Ms Jarvis sent him an email wherein she referred back to a conversation the Claimant had had with her on 15 January. She also indicated that the Claimant’s TU rep Mr Bowyer had been involved. In that email she indicated that: a) The secondment was for six months after which the Claimant would return to his substantive role; b) The Claimant had asked to work in a new department and it was pointed out that was not within the Respondent’s gift and that it would be down to the Claimant to seek, apply and obtain a new role. c) Jarvis would remain the Claimant’s line manager but she hoped he would enjoy his time with the new team and that he would find and apply for other roles.

[43]The Claimant’s evidence is entirely contrary to this. He asserts that he never wanted to be moved and was only told for the first time on 15 January that this was happening. On balance we consider that there had been discussion both with the Claimant and his Trade Union as to the fact that the Claimant was going to be seconded and he was. We do not accept that the Claimant asked to be moved but when asked he did not at that time put up any opposition and nor did his Trade Union.

[44]The Claimant did not hold his PTS accreditation at this time as the same had lapsed on account of the Claimant’s lengthy absence on account of his arm. Jarvis booked the medical for 15 March 2019 and the PTS course was set for 30 April 2019. The Claimant attended both of these and was successful on both. The final stage in order to be assessed as competent was to go trackside, effectively as a trainee, during which they would be mentored to be signed off as competent. Mr Clarke did not permit this to happen. There is no correspondence that the Tribunal has seen about this issue immediately following the passing of the course and Clarke did not give evidence. All that is written is Jarvis stating that “they did not trust him to work trackside”. This meant that he was not given the chance to be become accredited. The Claimant did not raise, either himself or by his Trade Union raise a grievance about this denial of the opportunity to be signed off as a competent track side worker.

[45]This was the first time where the Claimant was not given the chance to work trackside due to his colleagues not trusting him for reasons which are never fleshed out. Had the Claimant been able to go trackside then he would have been (all things being equal) of more use to teams that took him on. Failing to give him this opportunity was a material detriment that assailed the Claimant for much of the period under discussion. At all times there was a failure to provide any evidenced rationale for it. This was a continual flaw in the Respondent’s handling of the Claimant.

[46]There is a dearth of information as to what took place during this secondment from a contemporaneous standpoint. On 12 August 2019 there is a further OH report but we do not have the referral although it indicates in the report that the Claimant was referred because of “Financial difficulty, an accident at work in reference to his eyes (which occurred on 17 June 2019) and a broken arm which occurred on the 3 January 2017”. The reason for a psychological assessment does not become immediately clear from that. The Claimant (again) reported that save for some financial stress arising from concerns that his job may disappear he had no psychological issues and the test scores showed that he had zero indicators of depression and anxiety and was very mild in relation to obsessive compulsive disorder.

[47]As Jarvis states at 8.3 of her statement: “As a result, at the end of the six months, he could not go trackside as he had not regained his competencies, and there was not a non-trackside job available in the storerooms in the Eastleigh Maintenance team for him to do.”

[48]Two points arise. Firstly, the Claimant was not given the opportunity to go trackside because of a decision by Clarke that he was not safe to even go on there with supervision. That decision means that he was deemed less safe, despite his many years of service, that an apprentice or a new starter. We have seen no evidence that would support that decision. Secondly, that decision effectively cost the Claimant his chance to be redeployed.

[49]Due to the major implications of that for the Claimant and his employment scrutiny is required to be placed upon how that decision came about and whether it was one reasonably taken. One looks in vain for any contemporaneous documentation about those decisions. There are no records of meetings at the time between the Claimant and Clarke and, of course, Clarke has not been called to give evidence at this Tribunal about it. The best we have is the further psychological services referral form completed by Jarvis on 1 October. The fact that she made a further request so soon after the previous report in August is certainly odd. The Claimant would suggest that she did so because she perceived that the Claimant was disabled on account of mental health issues. Jarvis denied that and we accept her evidence that this was not the case. We find that Jarvis, with her limited managerial experience did not have any solution to the problem that she had been left with. She did not know what to do so she decided to kick the can down the road by making a referral and was doing anything she could to avoid having to send the Claimant back and was effectively playing for time. She did not want to have an adverse reaction from the Claimant’s original team and so once again was favouring the bullies as it provided her with an easier and more manageable situation.

[50]Within that referral Jarvis: a) Set out the reasons why the Claimant had caused to be seconded. There is a combination of Jarvis’ own observations of the Claimant, some allegations from others which she could not know were true e.g. hiding in a corner and a description of the bullying that had taken place and confirmation that he was moved to “protect him as best we could from any other potential bullying for his own safety”. It was suggested that he had asked to move departments. b) There is then a quote from reports from the Claimant’s supervisor and line manager which can be summarised as follows: i) Concern that the Claimant seemed to believe he would be dismissed at the end of his secondment despite reassurances to the contrary. ii) The Claimant reporting his locker had been broken into, which was clearly deemed to not be believed. iii) The Claimant became concerned / obsessed with what might happen to the detonators he said had been taken and because of what might be described as obsessive behaviour about that, Clarke referred him to the OH referral above. iv) The Claimant began carrying around personal recording devices which did not go down well with his colleagues. v) The Claimant took issue with a calendar on the wall that was from a local rugby club and showing players in partial undress and he championed the concerns of any woman who might come into the mess room. After his entreaties it was finally removed. vi) An example was given of the Claimant not following instructions and because there was concern of the Claimant challenging site management staff it was decided that he could not be put trackside “as it would be counter-productive and detrimental to the rest of the team and possibly prevent us from doing work. (The Claimant) is literal when taking instruction to an excessive level”. c) It was explained that because of these things the Claimant’s secondment was unsuccessful, and the Claimant was at home awaiting the psychological assessment of these matters to ensure he was safe and well enough to return to his post. It was believed that the Claimant may have some mental health issues on account of the bullying and actions above. d) Jarvis had asked the Claimant and he wanted to return to his previous department which taking into account the history Jarvis states she is surprised about and for reasons that are unclear she “questions his motives” (199). e) Jarvis states that she considers that the Claimant has shown paranoid and obsessive behaviours and she indicates she needs a view on his ability to take instructions without continually questioning of all decisions made by site managers and supervisors. She was also concerned about his purported inability to move on from past events.

[51]There is no real evidence of any of these matters of concern being put to the Claimant in formal or semi formal setting. The Claimant was in this position because he had been subjected to bullying behaviour and it was a safe haven in which, it was presumably hoped, he would find a permanent home. The Claimant had passed his PTS, yet his management did not allow him to go on to show his competencies trackside and to develop the same. There is no sense of there being any formal process being undertaken, simply a gut feeling from his supervisor /manager. The Tribunal considers that the Respondent has failed to present sufficiently cogent evidence as to why the Claimant was not allowed trackside at this time despite passing his PTS. It is also puzzling as to why the Claimant did not take this issue up with or without his Trade Union and call out this conduct towards him.

[52]Jarvis states that she was advised by HR to make this referral to OH about the Claimant’s mental health. As stated previously there was no reason given as to why the August report which was taken right at the end of the secondment was insufficient. The overwhelming impression and the finding of the Tribunal was that the Claimant was a difficult case. The Respondent showed that they did not have the slightest intention of tackling the bullying culture so as to make it safe for the Claimant to return to his normal job. We find there was a desire to not tread on the toes of what Jarvis described as “strong characters” in her oral evidence which meant that the Respondent that the threat to the Claimant remained if he went back there. That is a pretty damning indictment on the Respondent’s culture and an abrogation of their responsibilities under the Bullying and Harassment policy.

[53]The Claimant was deemed a “problem” and one which Jarvis and other managers could do without e.g. the luke-warm response at the start of the secondment re the Claimant by Rowe. We are quite sure that Jarvis and other managers had an enormous number of issues over and above the Claimant but it was he who was absorbing a disproportionate amount of time. Removing him from the business provided respite for managers but as indicated earlier was simply kicking the can down the road. We find that the referral to OH was another example of Jarvis hoping that something would turn up following a medical examination which would provide a solution to the problem that she had been presented. That was the primary motivation for Jarvis. We do not accept that she genuinely held the view that the Claimant was mentally ill.

[54]The Claimant had finished his secondment in mid-August and is then stood down from work and remained at home on full pay. The referral to OH is only made on 1 October some six weeks later and then there is inordinate delay with the report being completed. The reason why is said to be an inability from the OH provider to get the Claimant’s medical records allegedly because of a fee needing to be paid to have them released. The amount of time the Claimant spent simply sitting at home on full pay at the behest of the Respondent is eye wateringly high.

[55]In January 2020 the Claimant was found a placement in the Stores at Victoria Station on what was deemed a temporary work placement. The Claimant had indicated that he preferred to do work than sit at home, so this was found for him. This was a successful placement and the Claimant enjoyed his time there and Jarvis recorded that Mr Jarman the Claimant’s manager at Victoria had given positive feedback for the work done and that the Claimant had “made a positive difference” and he was thanked for his hard work. Sadly, the placement came to an end on account of Covid and the lockdown from 17 March onwards. Who knows the course things might have taken had Covid not intervened? It is the only example of the Claimant being accepted and appreciated. It is also the only placement where the Claimant was geographically away from those who had complained about him at Eastleigh. We consider that is not by chance. Our very strong impression was the railways appear to be a place where news seems to travel fast, especially bad news.

[56]What the above placement showed is that it was not inevitable that there would be interpersonal issues in any role the Claimant took on, the Claimant could undertake satisfactorily a Stores role and that all be it on reduced hours the Claimant could cope with a job a substantial distance from his home. This should have been a positive marker for the Claimant moving forward but it did not seem to work out like that.

[57]The report from the Clinical Psychologist was finally dated 24 April 2020 and sent on 11 May, seven and a half months after the referral. There was no incentive for Jarvis to get an answer quicker as the Claimant was not absorbing her time at that point. By this time the Claimant was back on full pay at home not working. The report is detailed but we summarise as follows: a) The consultation was by 2 Face Time sessions and 2 emails in March 2020. b) The Respondent was deemed to have asked whether the Claimant was mentally fit to return to his role either at that time or in the foreseeable future. c) The Claimant was deemed rational, calm and consistent but as in the witness box before us “the detail was quite vague” (214). d) The Claimant set out the history which is not too dissimilar from his witness statement in this case and was clear he wanted to go back to his old department (217). e) The Claimant scored zero (again) on the anxiety and depression questionnaires and also scored extremely lowly in other tests which was in accordance with the manner in which he was presenting to the doctor. f) The conclusions were that the Claimant was : i) Resilient enough to return to his operative role. ii) Had no indicators of any mental health issues and had “a good capacity to manage stress at this time” (223) iii) So far as the specific concerns that had been raised the Claimant had an adequate explanation for those matters, e.g. a desire to protect himself from further bullying. iv) The Claimant needed to feel supported by management on any return and his return trackside needed to be gradual. (228-229) v) No further psychological intervention was required.

[58]Jarvis stated that she was “slightly concerned that the assessment was not a true representation of the person who was presenting to me at the time” and that “it felt like the assessment was on someone different” (Jarvis Statement para. 9.6). In oral evidence Jarvis sought to back away from that view but we find that Jarvis was disappointed that the report had not made her life any easier and so was reluctant to accept the psychologist’s view. Again, the principal reason for that reluctance was not that she perceived that the Claimant actually was mentally ill but rather that it did not provide her with any assistance with her principal problem at that time which was placing him back where he wanted to go when she knew that it would be unpopular with those who had bullied him in the first place. If the doctor had have reported that going back would be psychologically damaging then that would have meant that the worst possible option could be avoided on medical grounds. The Claimant was becoming increasingly inconvenient.

[59]On 13 May 2020 Jarvis indicates that she would be back in touch shortly to discuss next steps and then on 22 May she apologises that she still has not properly spoken to her HR lead but that she will do soon. A welfare meeting was set for 9 June almost a month after the report. All this time the Claimant has been absent on full pay. Save for his time in Victoria that had been the case since the end of his secondment.

[60]That meeting took place and whilst no notes are available per se. Jarvis does email him a purported summary of the meeting on 11 June. In that it is recorded that: a) The Claimant recorded that he had no issues with the report or the recommendations (240). b) The Claimant indicated that in the main his issues were with one person and if contact could be avoided he thought things would be OK. c) The Claimant was clear that he wanted to go back to his old department and in a subsequent email (240) he indicated that he “wanted to leave the past in the past and move forward. I am a strong-minded person and I want to carry on doing the job I love.” There is no room for any doubt as to what the Claimant wanted to do and what he considered was in his best interests.

[61]On 16 June Jarvis wrote back to the Claimant stating that “as part of your phased return back to your substantive role we need to undergo a process of mediation to support you and the rest of the Team considering some of the incidents and events that have happened when you were last working in the department”. Someone independent was proposed as doing the mediation and Jarvis indicated that she would be getting back to the Claimant shortly with further details. Mediation had been proposed between the Claimant and Wilson after the original dispute and whilst the Claimant had been prepared to move forwards in this manner, Wilson had not. That proposal had been made 22 months earlier.

[62]In her statement at para 11.1 Jarvis indicates that “mediation wasn’t an option” despite the email quoted above where she indicated differently. Mediation is where a neutral facilitator explores options between individuals with different views with the intention of seeking to reach a mutually agreed outcome. Obviously, individuals would need to come to the table for such a process to take place but one can see its place where the goal was to integrate the Claimant back into a Team. Management did not apparently even take this option forward any further. It needs to be remembered that the Claimant was the victim of the bullying and not the instigator. At this point the Respondent had done nothing effective, in order to ensure that the bullying side were looked at.

[63]A Neutral Evaluation, which was the course chosen, is a process where one reviews facts and opinions so as to give an objective evaluation of the situation. The Respondent already knew the views of many of the staff and so it is difficult to understand the point of this. The opportunity was there to review the whole culture of the department to try and dig down as to where the bullying culture came from and who was responsible and what steps could be taken to improve the same. That would have been a useful exercise in the Tribunal’s view and would have set a clear marker as to expected behaviours. Instead, the focus was solely on the Claimant and the impact upon him and the Team. It gave the bullies a further chance to double down on their criticisms of the Claimant and the Tribunal considers that it was inevitable that would happen.

[64]The Tribunal have no hesitation in finding that this was yet another way for the Respondent to avoid doing what the Claimant had said that he wanted. The Respondent did not wish to face the ramifications of him returning to his substantive role and were not prepared to face down those who had driven the Claimant out in the first place. The answer they required had not come about via the psychological assessment and so further delay was built in which from an objective standpoint was likely, on the way it was framed, to have only one outcome and that would be a non-return by the Claimant.

[65]The proposal for the assessment is set out at 248-257. The Requirements, which can only have come from the Respondent, are not balanced. There is no clarity in relation to the fact that the Claimant had to be moved on account of bullying by persons unknown, including the incident with the EDL Leaflet. This backdrop is essentially totally underplayed. Conversely the suggestion is that the Claimant has been involved in interpersonal problems for most if not all of his employment and the disciplinary matter is described as “a serious complaint between the Claimant and another employee which included allegations of a knife being present”. More accurate might have been “an altercation between two employees where allegation and counter allegation was made and resolved by a written warning”. It was said that a significant number of individuals had expressed significant concern about the Claimant’s return to work. We have seen no such evidence as to who that was and to who the concerns were expressed to and what the nature of those complaints were.

[66]The Claimant was told that the Neutral Evaluation was taking place in a conversation on 19 June as recorded in an email on 24 June (261). The Claimant was told that he would need to remain at home for the 5-6 weeks the process would take. Invitation were sent out on 2 July and it was said that: “The independent expert will use your feedback to assess how any potential situation or culture has developed, identify the contributory factors, and generate options and write a blame free report making their recommendations for moving forward.”

[67]The Claimant elected to respond to the Neutral Assessment by way of questionnaire. Everybody else did it in person. The Claimant responds to each question but of course the chance for expansion and follow up was missed on account of his election. It was an opportunity missed by the Claimant, although in reality considering the conduct of the Respondent up to that point, it would have made no difference. He mentioned that others had not acted satisfactorily towards him and that he had been bullied and harassed with a racial motive. He indicated that little had been done about it and the Neutral Assessment should have been done a lot earlier (which we consider a fair criticism) and he also stated that “management should tackle the problem immediately and take into account both sides fairly and with a degree of transparency” (289). Again, we observe that this is fair comment.

[68]The Report was finally published on 14 August 2020. We select the following snippets from the report: a) There were some concerns of the power of certain individuals had which was described as “the tail wagging the dog” and that “management hands were tied when dealing with those who do not wish to fulfil a management request” (294). b) It was suggested that the depot was harmonious at the date of the Evaluation but that there had been a bad atmosphere on account of a number of “unsettling incidents all of which included the Claimant” (297) c) The examples included were: i) Wearing a heavy-duty suit on a hot day; ii) An issue relating to the positioning of a bicycle in the locker room; iii) The Claimant seemingly having a paranoid response to enquiries. iv) His work was done at 100 miles per hour and that he was scatty and erratic. v) He once allegedly “insinuated” that if he had a rope he would hang himself. This was reported and it “spread through the teams” causing anxiety about working with him to spike. vi) The comment about “ending it all” detailed earlier in these reasons. d) The incident with Wilson was brought up and again it is clear that the details of the alleged incident was spread around (presumably by Wilson and his friends) and the general opinion was that Wilson would not have made it up and the depot believed that more should have been done as otherwise there are no consequences to doing wrong. e) It was reported that the general view was that it was the Claimant who had broken the knives, despite there being no evidence to support that. f) The clippings was also referenced but again the focus is on one technician who laid the blame on the Claimant. g) There was an incident when the Claimant had allegedly lost his temper in the office. h) The conclusions were that the uncomfortable and nervous atmosphere that was said to be at the depot was the fault of the Claimant. i) The Claimant was deemed to be a good worker at one time but was a “bit strange” and trust and confidence in him had been lost and a regularly voiced opinion was that the overriding safety concerns made it to critical for individuals to work safely with the Claimant and he was not wanted back. j) HR were deemed to be a “powerless department which sweeps incidents under the carpet”. k) The final recommendation was that it would be in the best interests of all parties that the Claimant was not returned to the depot.

[69]This report was expensive. There is a suggestion in the bundle that it was going to cost in the region of £16,000. The whole process with the Claimant has incurred huge cost if one takes into account all the days he was paid for sitting at home, plus the costs of this Claim. The Tribunal glean the following matters from the report: a) The outcome took the Respondent no further forward in terms of knowledge other than what they already knew i.e., there was a swathe of ill feeling toward the Claimant. b) At no point was there any focus upon the fact that the Claimant himself had been moved on account of bullying behaviour against him, or at the very least, why that culture had developed and what might be done to stop it and prevent it happening in the future. c) There was no analysis of whether any of the matters involving the Claimant were true, or to what extent they were part of a rumour mill. Whilst the Tribunal do not doubt that the feelings expressed against the Claimant were genuine most seem to be the result of information spread around the team and an assumption being that the rumour or incident was true. As an example, the incident between Wilson and the Claimant and the findings from it were greatly exaggerated, again presumably by Wilson, and there was no attempt to stop the false narrative that was being pedalled. If the Claimant was found to have pulled a knife on Wilson then he would have been sacked rightly for gross misconduct. The reason why the sanction was a lot lighter was that on something different than what was found to have happened and a proportionate sanction was handed down. Management never did anything to try and allay the fears of staff and just let the rumour mill rumble on to the Claimant’s detriment. Similarly rumours re who had put the knives in the drawer and who had snapped the knives, there was really no evidence to support the Claimant’s culpability and these rumours should have been stamped out immediately. There was as much evidence that it could have been Wilson, who having a grudge against the Claimant was responsible for the bullying against him and then the purveying of anti-Claimant sentiment by trying to blame him for the clippings matter. d) All of these rumours had had a lengthy time to become embedded as fact and the truth of them no longer mattered for the depot. There was no further investigation into the truth. The Respondent’s failure to act back at the time of the incidents is to be deplored and was weak. They provided an endorsement that bullying behaviour is worth doing because it will provide the desired effect i.e., the exit of the Claimant.

[70]We have no doubt that the report was warmly received by the Respondent as there was now an easy fix to the situation, i.e., removing the Claimant because that was the recommendation of an independent body. They had failed to achieve that from the psychological assessment but the Neutral Assessment had turned up trumps for them.

[71]On 2 September the Claimant was invited to a meeting to discuss the findings of the report. On 13 September Jarvis wrote to Reeve her HR support asking whether a summary of the Neutral Evaluation should be sent to the Claimant in advance of the meeting which was due to take place on 15 September. She acknowledged that it would be difficult for the Claimant to read and digest in the meeting, but for reasons which we are unable to fathom was reluctant to show the Respondent’s hand. On 14 September at 1331 the report was sent to the Claimant, presumably on HR advice.

[72]There is no specific note of that meeting despite it being a formal one to which the Claimant could have had representation if he had have wished. Again, the Respondent’s view of the meeting is set out in an email to the Claimant (329-331). It was said in the meeting that the Neutral Evaluation was a tool used to “help resolve conflict in the workplace”. That may be possible in some circumstances but not on this one. There was no suggestion that anything other than the Claimant’s removal permanently from the environment was a possible solution. The other staff’s complaints were taken at face value and the concerns and wishes of the Claimant ignored. An alternative was to utilise the views expressed as an opportunity to place things into context, correct misconceptions and analyse certain relationships in more detail by investigating them properly, so as to see whether bridges could be built. There was no attempt made to resolve the conflict that existed.

[73]It was recorded that safety was all important, which we accept, and that trust and confidence had gone and many had said they would not wish to work with the Claimant in the future because of safety issues and it was concluded that the Claimant could not be put back trackside. That was a major decision and it is unclear how the decision was arrived at. It would be one thing to decide he could not work with his previous crew, but why he was unable to work trackside at all is difficult to fathom. The primary problem is in the decision by the Respondent to talk in generalities. There was no specific occasion that was highlighted as to why the Claimant was unsafe to work with. Even when the comment had been made about hanging, it was said to be an insinuation of that. These things were taken as fact even where no investigation had taken place. As an example, the hanging matter is explained by the Claimant at paragraph 82(g) of his statement as being in 2015 / 2016, was not an accurate statement and was raised and cleared by his then manager. The taking of “safety” concerns at face value against the Claimant with a minimum of supporting evidence is a common and recurring failing of the Respondent throughout the whole process. The fact that the Claimant was unable to place the concerns raised in context seems to the Tribunal to be a material failing in the Neutral Evaluation process. It is all very well to find what a view or opinion is but surely one must look to see of the view or opinion is formed from a rational and true basis.

[74]The Claimant accepts that he did indicate that he did not wish to go back to his department at this point. That is not surprising perhaps but ultimately the evidence that led him to form that view was flawed as it had not been properly investigated. The future of the Claimant’s career had been placed in the hands of a group among which were individuals who did not want him around. The outcome is not surprising, and the management response was in our view nothing short of lamentable.

[75]It was advised that the Claimant was to be given “full redeployment support” and initially he would be given 2 months to find another role. The Claimant was to remain at home so he could focus on finding a new role (331).

[76]There was a meeting on 25 September where the Claimant’s transferrable skills was discussed along with the appropriate locations from a travel time perspective and a vacancy list was going to be sent over re stores jobs (336-337). There was an issue in issuing him a laptop because of supply issues. The Claimant is recorded as asking if the decision re the need to be redeployed could be revisited. The answer was that it would not be reviewed. The Tribunal consider that it would have been more appropriate to remind the Claimant that he was entitled to raise a grievance about the decision which would then be dealt with by somebody who had not had prior involvement. The reply from Jarvis is consistent with our previous finding that the Respondent did not under any circumstances want the Claimant to be placed back in his previous role so they did not have to spend time on the difficulties that may bring.

[77]It would appear from the correspondence that not all of the Respondent’s employees involved were satisfied that the path being followed was correct. In an email from Ms Laurent (339) she records that the Claimant was engaging and was refused a role at Salisbury in Stores as the manager had said he did not want to consider his application for what were said to be history and lack of skills. The Claimant had 20 years’ service and for most of that had had no issues and he had successfully worked in Stores in Victoria. If the Claimant was a redeployee under the scheme then this should not have happened. Even if not a “genuine” redeployee it is arguable that he should have been. It is hard not to conclude that the history part regards to what his reputation had become without any real investigation at Eastleigh and that was blighting his attempts to redeployee, the Tribunal finds, unfairly. It was said in the email dated 13 October that both Tim and Stephen that the issue should be dealt with locally by mediation. This shows that even in the Respondent there were voices suggesting that sorting it out in Eastleigh was what was required. The Tribunal would align with that view.

[78]The laptop was finally delivered to the Claimant on 20 October and steps to connect the Claimant were concluded on 24 October. This was necessary to allow him to seek internally advertised vacancies. He was given feedback about the Salisbury role and the rejection was now said to be due to the Claimant’s substandard CV. The Tribunal do not consider that to be the true reason and it is more likely to be the hirer knowing about previous issues and /or being tipped off about them. The Claimant initially suggested he wanted a meeting and then thought it better if he got a job first. Jarvis was happy to do what the Claimant suggested in this respect.

[79]There is then a gap in the timeline where there is no correspondence in the bundle until there was a meeting on 29 January 2021. All of this time the Claimant had been at home on full pay as he had been since August 2019 apart from his brief stint in Victoria. This was a time when Covid was still playing a strong role and we accept that there was less scope for recruitment over this period.

[80]On 24 March the Claimant was invited to a meeting to discuss the continuation of his employment because at that stage he had not found a role. We remind ourselves that he had been precluded from a trackside role by Jarvis and HR on the say so of unidentified individuals who used to work with him. That meant, of course that he had a more limited pool of jobs from which he could redeploy to.

[81]That meeting took place on 1 April and Jarvis was the decision maker. Jarvis ran through the sequence of events and the Claimant was given an opportunity to comment upon the matters raised. He expressed his concern over the Neutral Assessment taking place so long after the events and also reflected upon the lack of clarity as to precisely what the trackside risk was with him. At the end of the meeting the Respondent decided that as no suitable role had been secured and the Respondent could not sustain the current situation the Claimant was dismissed on 12 weeks’ notice during which time the Claimant could continue to search for jobs. The Claimant was reminded that he had the right to appeal.

[82]The Claimant did appeal and the appeal was scheduled for 7 May initially but was rescheduled to 7 June 2021. The meeting was conducted before Mr Nichols and the Claimant was represented by his Trade Union. The notes as amended by the Claimant are at 382-385.

[83]Mr Kite, the Claimant’s Trade Union representative makes a number of points that the Tribunal consider were perfectly valid. It was clearly of assistance to the Claimant to have somebody else put forward his position for him and there is certainly evidence that the Claimant himself was not adequately focussed on his representations as to what was relevant / important in his general dealings with the Respondent. His evidence before us was similarly unfocussed.

[84]Mr Kite raised the point that it was those who had worked with him and bullied him who were making the safety allegations against him that had led to him being in the redeployment situation that he was in. He pointed out that there were no health and safety risk assessments to properly assess any actual risk the Claimant posed. He pointed out that the Claimant should not be dismissed just because colleagues did not like him. The Tribunal considers that to be a fair point. Mr Kite went on: “PB suffered injury to take time off, suffered abuse in the workplace, and removed for safety and then unfortunately has not been put back in because the Respondent have allowed abusers to carry on. Goal for us is for PB to return to work at Eastleigh and to return to his job. The Respondent should not allow bullies to stop this. We should find a safe way to return PB to the workplace. We seem to be leaving the perpetrators alone and punishing PB”. The Tribunal consider that Mr Kite’s representations are fully on point and we consider that his summary is correct..

[85]Mr Nicols resolved to investigate the matters and the following week (16 June) told the Claimant that the appeal was to be upheld. The reasons were set out in a letter dated 18 June 2021. They were in summary: a) That safety had been cited as the reason for not returning the Claimant to his substantive post, yet no evidence had been adduced that demonstrated that there had actually been any safety incidents or close calls nor had there been any Fair Culture assessment to determine personal responsibility for any incident. There had been no attempt to quantify the risk nor any evidence of mitigation plans. b) There was a Performance process which was to be used where an employee was said to not be performing at the correct level and that had not been implemented yet decisions had been made to the Claimant’s detriment notwithstanding this failing. c) The Neutral Assessment was flawed as it did not allow the Claimant any right of reply to the allegations and there had not been any form of investigation into the alleged safety concerns. d) The appeal was upheld because it was deemed that due process had not been followed, particularly in relation to the lack of investigation.

[86]Whilst there may have been some confusion on the part of Mr Nicholls and conflation of certain points broadly the Tribunal considers that his assessment was a fair and reasonable one and did highlight material failings on the part of the Respondent. Had the matter stopped at this point and a claim have been brought for unfair dismissal we would have considered that the dismissal was outside of a band of reasonable responses and that it was unfair. The reasons for that are: a) The Claimant was the victim of an escalating campaign of bullying, conducted by some of his colleagues. Whilst we accept that it would not have been healthy for that to continue, the abject failure of the Respondent to try and tackle it was unfair on the Claimant who was removed, in our view, because that was perceived as being the easiest course that would ruffle the fewest feathers. That was not fair on the Claimant and was effectively a charter and an endorsement of the effectiveness of bullying. Management, by doing nothing, supported the bullies. b) The principal reason why the Claimant was moved was to remove him from the bullying. The reality is that the rumours etc followed him which led to the secondment being unsuccessful. In essence, the Claimant may well have been, and probably was, quirky and odd so as to discomfort others who worked with him, but at no time was any specific safety concerns flagged as to why he could not go back trackside save for the collective gut feeling, fuelled by innuendo and rumour by those who held a grudge against the Claimant. At no time was there any objective enquiry into the safety issues. c) The consequences of this were that arguably the Claimant should not have been seeking redeployment at all and even when he was his options were seriously curtailed by a conclusion that had not been properly formed that the Claimant could not work trackside. The Tribunal are completely satisfied that Mr Nichols conclusion in reinstating the Claimant was one that was fair and reasonable and should have flagged up what was required moving forwards. Mr Nichols is a rare beacon of light in what is a series of bleak managerial and HR responses to the Claimant.

[87]Jarvis stated in her witness statement (para 13.6) that she was disappointed by the appeal decision. The Tribunal find that this almost certainly an understatement as the situation around the Claimant would have been a constant headache from the day she arrived in her role. It is clear from her statement that she remained entirely closed to the possibility of redressing the balance with the Claimant’s substantive team and seeking to utilise mediation and information to try and reintroduce the Claimant. She stated that “this was a unique situation involving how people were feeling and their tolerance to risk management”. The problem from the Tribunal’s perspective was the wholesale and unquestioning acceptance of that feeling. Even at this stage the Respondent could have drilled down into whether the safety concerns actually had a sound foundation, but they did not.

[88]There was an initial return meeting on 22 July (a month after the appeal had concluded) which caused Mr Kite to write an email in which he complained about Jarvis’ handling of the meeting and that somebody unbiased should take over. He sought the Claimant being given alternative duties whilst a medical was obtained, a training needs analysis and risk assessments as to trying to identify any risk that the Claimant posed (403).

[89]The Claimant also wrote an email that again does not really focus on wholly relevant points. He records (402), and we accept, that Jarvis stated that the two routes she was considering was redeployment or medical severance.

[90]On 13 August the Claimant was referred again to OH. The reason for the referral is: “The claimant has not been at work since August 2019. Following an appeal process we are looking to return him to work and need and on his ability to return to work and an assessment on his return to his substantive depot” (405). So far as the “Workplace Matters” relied upon it reads as somewhat negative towards the Claimant and credence is given to matters which had never been properly investigated or had been dealt with a long time ago. It concludes: “We really need to be sure he is of sound mind and any issues he will face coming back to in that depot won't compromise his ability to work in a high-risk environment nor does he pose any threat to other staff that he will harm himself or others whilst at work generally and especially when in a safety critical environment”.

[91]We accept that time had moved on from the last medical assessment which had cleared the Claimant, but in reality very little had taken place that was likely to have changed the situation materially. It is perhaps strange that the Claimant agreed but in all likelihood he felt that he had little choice otherwise or else that would be held against him. The Tribunal cannot help but find that this was yet another delay tactic from the Respondent as opposed to there being any genuine perception that the Claimant was mentally ill.

[92]On 19 September an interim OH report was produced following a telephone consultation having been undertaken. It was reiterated that the Claimant was keen to resume his substantive duties at Eastleigh and although insufficient time was allocated for an in-depth assessment to be made the physician had no “specific concerns over (the Claimant) returning to work in the near future.” The physician indicated that he wanted to see the in-depth assessment from a chartered psychologist and they would speak to the Claimant again. (410)

[93]That was then followed up on 4 November 2021 (five months after his reinstatement) where the physician recorded that: “Mr Bassi does not suffer from a long- term mental health condition that would impact on his fitness for work. He has no intention of harming himself or others. This was already highlighted in the report of Dr Carr and my assessment came to the same conclusion… I conclude that Mr Bassi is medically fit for his substantive role… He can return to work at his manager’s discretion.” It was recommended that the Claimant should be supported in his return with a programme of reintroduction to colleagues and a review and assessment of the competencies required of him in a safety critical role. The Claimant was not considered disabled. In short (again) there was absolutely no reason from the Claimant’s perspective why he could not return to his substantive team. The Respondent had taken 5 months to get back to what they already had known previously. The Tribunal are sure that this outcome would have been a grave disappointment to Jarvis who was now back facing the same issue as she had before her back in 2019. Jarvis’ statement is entirely silent about the June 2021 to April 2022 period and there is also very little correspondence whilst meanwhile the Claimant languished on full pay at home.

[94]On 7 April 2022 there was a Return-to-Work meeting attended by the Claimant and his TU rep, Jarvis and Ms Issa from HR. Issa indicated that the concerns re the Claimant’s health and safety and the safety of others had not changed (despite no real investigation having been invested in them). They indicated that they could not return the Claimant to his substantive role because of that. The Tribunal considers that this decision merely reinforces all of the errors that had been made up to that date. He was told that they had located an Operative role within Eastleigh Track Maintenance where he would start on non-safety critical duties whilst he regained his competencies. Kite indicated that he was unhappy at this outcome which was described as “going round in circles” and that he needed time to discuss with the Claimant. The Tribunal consider that Kite’s objections / complaints were fully justified. Having discussed matters with the Claimant however Kite explained that the Claimant was content to accept the offer to “get this matter closed”. It was a role on the same basic terms and conditions as the Claimant was already on. (427)

[95]In his statement the Claimant reflects that he was very frustrated by this turn of events but the only frustration seems to be coming from his TU rep within the minutes of the meeting. The Claimant’s decision may be a further example of the personal weakness he told the Tribunal about.

[96]On 18 May the Claimant met Chris Jackson who was to be his line manager and it was confirmed that his start date would be 6 June. Like all of the actions from the Respondent there was no real speed applied to getting the Claimant back to work. The Claimant was told that he would be working on non-safety critical duties until he regained his competencies and then when he did the Respondent would review the Claimant’s track side return. The Claimant was told in a letter dated 6 June that there was a three-month trial period with reviews (430). On 2 September 2022 the trial period was extended by 4 weeks because it had not been possible to undertake the review meeting before the end of the trial period (432).

[97]On 1 September Jackson got an email from John Morgan that referred to a previous discussion about the need to address the Claimant’s behaviour in the workplace. The suggestion was that the Claimant had asked weird questions about various topics, another employee experienced the Claimant looking over his shoulder at an email and that the Claimant was on the work laptop too often. The email concluded “We would like some clarity on (the Claimant’s) position within our depot as we feel no real need to have him within the team”. Again, these complaints do seem to be about relatively trivial matters and certainly do not pertain to any form of safety issues.

[98]The Claimant’s trial period was reviewed at a meeting on 21 October 2022 and the notes do not suggest that it was a very positive meeting with the Claimant and Mr Jackson crossing swords therein. That meeting was adjourned again until 28 October 2022 when the trial period was extended for a further six months with the main aim of allowing the Claimant to get his competencies on track.

[99]On 16 November 2022 the Claimant was sent a letter from Issa to confirm the six-month extension which was said to give the Claimant a chance to “regain the necessary trackside competencies needed to work trackside” and to see how the Claimant integrated with the team. It informed him that his trackside medical would be booked for 23 November, which the Claimant subsequently passed. The chances of integrating in the Team were against the Claimant who seem to have already made up their mind about him. The Tribunal have little doubt that there had been input from others within the organisation who did not see eye to eye with the Claimant. Further it would be harder for the Claimant to be accepted if he was not trackside with the rest of the Team.

[100]The trial period did not start well with on 22 November Jackson passing on messages from his team against the Claimant and indicating that he was “siding with my guys here” (458.) This was reported to HR but the Tribunal have considered the complaints and are unable to see what the fuss was all about with the Claimant asking where his new work boots were and raising queries on a couple of other things. Whilst the Tribunal can fully understand that the Claimant may have come across oddly from time to time the conclusion that “he’s building up to something” is impossible to really understand. Again, it is highly likely that previous suspicions from previous colleagues have filtered through the system so that anything the Claimant said or did was deemed suspicious. What is most stark is that nothing was done about this and the Claimant was not even informed contemporaneously of the issues in order to put forward his side. They were not followed up and so the Claimant’s goal of becoming integrated became more and more difficult.

[101]On 14 December HR got wind of further upset allegedly caused by the Claimant in the depot Jackson sent through the concerns of the team which were: a) The Claimant was asking for views about the strike and views about the Trade Unions. b) He was continually asking questions about an individual and his father and it was perceived that he was seeking to get two of the technicians to criticise the individual. c) He asked the technicians to delete his numbers off their phones. Jackson summarised his view with “… I’m not happy that (the Claimant) has been forced upon us, we can’t afford this disruptive behaviour within the team so I’m formally requesting the trail (sic) to be ended before it becomes more serious”.

[102]The Tribunal considers that this sums up Jackson’s view throughout the process and for that matter the view of most other managers who the Claimant had dealings with. We are quite satisfied that because of the rumour mill between the various departments the Claimant had quite simply become damaged property who nobody wanted to work with. The matters raised are generally minor in nature but are then avidly supported by the management who never seek to step in, make findings or really support the Claimant at all. All of this flows from the Respondent’s failures to deal with these issues right at the start of all of this. It is hard to fail to agree with the Claimant’s view that the chances of him getting a fresh start and becoming integrated were slim from the outset due to all that had gone on before.

[103]The Claimant attended his PTS course on 12 January and failed. With the Claimant’s prior experience and despite his long lay off it is a course that we find he should have passed. It was not helpful to the Claimant’s cause. That was a view that Jackson passed onto Jarvis and HR whilst continuing to complain about the unfairness of having the Claimant on his team.

[104]There was a further meeting on 20 January where some of the concerns were raised and it was decided that the trial should continue. On 13 February the Claimant passed his PTS and also passed another test the following day. Following that the Claimant did work trackside under supervision, but only on fifteen days. We have seen a copy of the Claimant’s safety passport which was issued on 1 March 2023 (866 – 869). In the passport are instructions and they include the following: a) The safety passport is deemed to be “valuable evidence to help demonstrate your competence and further your career”. b) The review period would be for six months and then there would be a review and the passport period could be extended, if necessary. c) Countersigning by the COSS would provide evidence towards competence.

[105]The Claimant’s passport shows fifteen occasions when he was trackside over six weeks. The COSS has signed off each one and there does not appear to be any concerns recorded therein.

[106]The end of the Trial Period was marked by a meeting that took place on 18 April. Jackson raised some issues and in particular that the Claimant “still seemed to be unsure with things when out there.” Jackson raised issues such as the Claimant going onto a platform and indicated that if the Claimant was a new starter then he would tell that individual it was not the job for him. The feedback in this meeting is not reflective at all of the passport which is meant to be the document that contemporaneously outlines any issues or problems. The Claimant raised issues about matters which he indicated had been raised in the meeting but they were rejected.

[107]On 3 May an outcome letter was sent to the Claimant which reiterated that over the course of the trial there were concerns re the Claimant’s capability. Whilst the Claimant felt 100% capable it was said that was contrary to the feedback received. The Claimant was told that the trial had been unsuccessful and that it was not possible to return the Claimant to his original job due to historic issues and breakdown of trust within that team. It was indicated that the Respondent would now “progress to exploring alternative non-trackside roles to support you.” A time limit was set of three months.

[108]The Tribunal accepts that the Claimant may have had his eccentricities. He demonstrated some of those during the course of his evidence but the Tribunal are not satisfied that the Claimant was ever given a fair crack of the whip by Jackson or his Team. We do not accept that the Claimant was treated as coming with a blank slate and we find that the new Team through their own investigation / gossip knew about the Claimant’s history and never gave him a fair chance. The Team knew they would be supported by Jackson and there was an air of inevitability about the failure. In fact, it was history repeating itself. The Claimant was locked into trialling for Teams who did not want him and being unable to go back to a Team that had bullied / discriminated against him. We are quite satisfied that the reason for this was not related to the Claimant’s race in any way. The Claimant and his quirks were simply not welcomed.

[109]Further it is remarkable that notwithstanding the points made on the appeal that the Respondent still did not engage any proper performance process. The proper document for disclosing issues, the passport, did not disclose any of the concerns and there is little evidence of any issues being raised on the job. The issues raised against the Claimant are highly subjective and there are few actual instances quoted. For those that are, we simply see the Claimant’s explanation dismissed. The Claimant has become toxic and nobody is prepared to work with him. It is the perceived toxicity and not any perceived disability or race that is the problem.

[110]To make matters worse the Claimant, although he has passed his trackside exam, and the safety passport should be for six months which can be extended, the Claimant, on relatively scant evidence, has been removed from consideration of trackside roles. That seriously limits his options vis a vis redeployment. All of that is in the context of a move forced on the Claimant because of the treatment he was given in his original role and the Respondent’s abject failures to tackle it. It is noted that the Claimant did not have Trade Union representation at that meeting which is perhaps unfortunate.

[111]In mid-May (535) there was a discussion between the Claimant and Egala from HR where the types of work the Claimant thought he could do and Egala indicated the levels of support she could provide to the Claimant whilst on redeployment. One of the issues was that, normally, there was an embargo on looking for jobs more than ninety minutes away from the home address. There was a short delay furnishing the Claimant with a laptop and ensuring that he was getting vacancy lists and so the original three months was extended by a month (548). There is evidence of assistance being provided by Egala and Brookes in getting the Claimant redeployed. What they could not solve however is the issues that had brought the Claimant to this unfortunate situation.

[112]On 17 August following an interview for a Stores role at Three Bridges the Claimant was rejected due to a high travel time to and from work which caused the hirer concern re the Claimant’s fatigue management and that he had not interviewed well and that his pay was well above the pay for the role (569).

[113]On 28 August the Claimant, somewhat belatedly raised issues about his removal from the Jackson Team linking the allegations against him to the appeal outcome letter and asking, not unreasonably why steps had been taken against him without proper process being followed.

[114]On 11 September (571) Egala replied by saying that none of those processes were relevant because the “concerns following your trial period are around your general ability to carry out a trackside role”. With respect that must be nonsense. Any failing in general ability must be founded in specific examples of inability, or failing to perform at a sufficient level, or failing to be safe. Egala indicates that it had been an opportunity to work in an area which was supportive. Again, whilst we accept that the Claimant had quirks which may make others be wary of him or reluctant to get close to him, we do not accept that Jackson and his team were supportive. We find that it was early in the process that they effectively decided it was not going to work whatever happened and then ensured that outcome came about. Whilst it is right that Egala was putting in place efforts to redeploy the Claimant at this stage it does not remedy past errors that has brought the Claimant to this parlous position. An example is when Egala reminds the Claimant that he can only apply for non-trackside roles (607) which seriously reduces the Claimant’s options.

[115]The Claimant applied for a Stores Controller role in Reading but was rejected without an interview (611). It appears as if Egala was on leave and so contact was not made with the hiring manager which could have facilitated a suitability check. On 11 September the Claimant was notified that his redeployment period had come to an end and Mr Vaughan was appointed to consider the Claimant’s situation. The Claimant asked if Vaughan could be given a full history so he could contextualise the situation the Claimant was in. That was effectively refused with Vaughan indicating that he did not wish those matters to “cloud” things.

[116]In October the Claimant went for a number of roles but was unsuccessful for all of them despite being a redeployee.

[117]The redeployment review meeting was convened on 17 October 2023. The outcome of that meeting was that the Claimant was given a further three months as a redeployee. Vaughan stressed that he did not know any of the background and that his aim was to get the Claimant back into a role with an open mind (672). The Claimant made it clear that he really wanted a trackside job and when Vaughan asked as to whether anybody had spoken to him about why it was not feasible for him to go trackside, the Claimant indicated that in April he had been deemed edgy whilst trackside.

[118]Vaughan indicated that from what he had heard there were areas where more help could have been given and sought to commit to the Claimant that all efforts would be made over the next three months to get the Claimant back to work. Following the meeting the Claimant emailed Egala seeking further clarification as to why he could not work trackside and he was simply referred back to the previous meeting notes. She writes specifically: “As a safety conscious employer, we have to make assessments on whether you are capable and confidently role. It was deemed during your trial period that unfortunately a trackside role was not suitable.” The Tribunal does not consider that to be an accurate analysis. Whilst it agrees that safety is paramount it does not accept that during his trial period any proper assessment was made at all to come to that conclusion.

[119]On 23 October Vaughan wrote to Egala to state that his stance from the start was one of resolution with a desire that the Claimant find a role that fits and then that would be a resolution of the issues. The Tribunal are quite satisfied that, unlike many on the Respondent’s side Vaughan did have an open mind and genuinely did wish to resolve the problems that had arisen. Vaughan went on to say: “As far as track roles go, can you confirm how many times he was taken trackside during the secondment. Is it possible to get his track passport for me to see? I think we need to ensure that the concerns about him working trackside are fully justifiable …. I think we need to provide enough evidence to prove that is the case purely because it cuts out an entire employment route that would be open to him….From my perspective and from a managerial view I would need to see more than just one team's opinion….. I am not trying to put blockers in the way I just understand the questions that the Union and a Tribunal panel would ask so I need to be able to defend my decision on this.”

[120]The Tribunal considers that this is a sensible and prudent enquiry from Vaughan and the Tribunal also gets the sense that he realised that this is not a path that HR wants him to go down. The veracity of what he has said re what a Tribunal might wish to see from the Respondent is borne out in this Judgment and is also reflected in the Respondent’s all be it eleventh hour concession of unfair dismissal. Vaughan’s view is that HR will not like what he believes is a fundamentally important consideration in the Claimant’s potential redeployment is reflected in Egala’s response where she tells Vaughan that his “role as the hearing manager is not to overturn any safety related decision but rather around his redeployment period and finding an alternative role…. There is no recourse at this stage to overturn any safety related decision…”

[121]The Tribunal have little hesitation in considering that Vaughan had it right and Egala did not. Whilst redeploying the Claimant was the focus at this stage, obviously not allowing the Claimant to work trackside was a block to a substantial number of roles. Vaughan was quite right to consider whether that decision to exclude the Claimant from trackside was one that had been made objectively and fairly and whether or not it could be reversed as that would have a material effect on the number of jobs the Claimant could apply for. Whilst me may not have been entitled to reverse it, Vaughan could have recommended further observation on track if he considered that a proper assessment had been done in the first place. At the very least he could use that information to ensure that the discretion to extend for a longer period was exercised as that issue would have a material impact.

[122]Vaughan (who was not called as a witness) clarified that he wanted to see the trackside justification because in his view there were: a) Not enough recorded details on why he could not work trackside; b) He had not seen the passport. c) Meeting notes and emails skirted around the subject. All of those criticisms were perfectly proper.

[123]Vaughan expressed that “As an independent and neutral party I need to be comfortable in my decision and to ensure that I am not being pushed in any direction. I understand your frustration but that is why I am here and it would be remiss of me if I did not look at both sides of the argument in order to do that I need hard facts and not opinions.” Again, Vaughan has identified both what his job was and also reflects that he believes that HR are frustrated by him doing what he thinks is the right thing. It is highly unfortunate that Vaughan is pushed (bullied?) by HR into not looking back at the Claimant’s capacity to go trackside. Vaughan’s inclination as to what he needed to do to be independent and neutral was wholly correct. It is very sad that Vaughan failed to deliver and follow through what was clearly the right and fair path as in his letter of 25 November (719) he expresses his satisfaction with the decision re the Claimant’s trackside status despite never getting the information he indicated he needed to look at that.

[124]This is yet a further example of material unfairness against the Claimant i.e. HR’s desire to ensure that a legitimate enquiry was not conducted with pressure being placed to snuff out reasonable enquiries. Sadly, Vaughan’s view as to what would be the right and fair thing to do is washed away by HR. The redeployment period was extended to 9 January 2024, but was limited to non-track side roles. The justification for this is non-existent.

[125]The Claimant continued to apply for roles despite at times not being in receipt of vacancies. On 8 February the Claimant had a suitability conversation with Mr Stanley in Slough who after a conversation with the Claimant indicated that he could have the Stores Controller role advertised. At 1153 Stanley emailed Western Resourcing to indicate that he had no concerns with the Claimant and he was happy to start with a three-month review. Three hours later he asked to place the same on hold as he had some concerns which he needed to raise with HR. The following day he stated that having discussed matter with his logistics coordinator he had decided that with all the travelling both to work and then all around the area he was concerned re fatigue (5-6 hours driving a day). There was a concern that even though the Claimant had indicated he could relocate he would not do so with his family.

[126]On 19 February the Claimant was invited to what was deemed a capability meeting. It was to be conducted by Mr Paine. No explanation was given as to why it was not Mr Vaughan. A cynic might take the view that it was because Mr Vaughan might act with independent thought and come up with an answer not appreciated by HR. This Tribunal do not have sufficient evidence to find that but do consider it strange that Vaughan did not continue with the task.

[127]The first meeting took place on 4 March and then was reconvened on 14 March 2024. At that reconvened meeting Paine indicated early in the meeting when the issue about not being permitted to go trackside was raised that “he was not here to dispute elements of the unsuccessful trial period or previous cases that were closed”. The Respondent failed to consider adequately or at all the Claimant’s trackside capabilities. The Tribunal’s view is that by so doing Paine closed off any fair or proper review of the Claimant’s future. The Claimant told Paine that he had two interviews the following week but despite that the Claimant was dismissed immediately as opposed to on notice which would have allowed him to interview for the jobs the following week and if he got one then the notice could be rescinded. It is another sign to the Tribunal that in reality the Claimant was a problem that the Respondent were very happy to see the back of.

[128]The Claimant lodged his appeal on 22 March 2024 (905). It is a perfectly reasonable document that focusses upon the failings that led to the Claimant being denied the opportunity to work trackside. On 17 April Mr Jones was appointed to hear the appeal but as had happened many times during the process a letter of invitation to the appeal was not sent until 24 May. Due to availability issues the appeal took place on 23 July 2024.

[129]The original invitation invited the Claimant to submit any documents that the Claimant wanted to submit and that they should be supplied as soon as possible. The Claimant submitted a fifteen-page document in which he outlined 22 specific matters, many of which were of direct relevance to his dismissal and how it had come about. Presumably the reason to get documents in early would be for the person hearing the appeal to become cognisant of the points the Claimant wanted to bring so as to allow them to focus on the issues. Jones decided not to read any of the Claimant’s documentation so he could come to the meeting with a “clear and fresh mind”. The reality is very little seems to have taken place at the meeting save that Kite, the Claimant’s TU rep does a helpful thumbnail sketch at 940-941 wherein he sums the situation up by saying that they have been going round in circles for 2 years. In fact, that circular motion had been going on for a lot longer.

[130]The ultimate decision stated in broad terms that Jones could see nothing wrong with the decision to stop the Claimant going trackside. We can see no sign that this was properly investigated and as he relies upon information that was sent ion previous occasions which we have found to be flawed it follows that we find the appeal decision flawed too. Jones said that the Respondent had extended the time to get a job on more than one occasion but did not factor in the fact that the Claimant’s choice of roles had been seriously curtailed. The Tribunal can see that Jones indicates that he did make further enquiries but there are no notes of any of those meetings or details thereof. We note that Jones spoke to Egala about the redeployment assistance. It was Egala who was determined to steer Vaughan away from what might be of assistance to the Claimant and we have little doubt that she would not do anything different at this point to help the Claimant We find that the last thing she would have wanted was the Claimant to be reinstated.

[131]The first meeting was meant to be followed up by another on 10 September but Jones was unable to have that meeting for personal reasons and then decided the appeal without that further meeting. The Tribunal consider that the flaws in previous decisions were not in any way corrected by whatever work Jones did.

[132]The Claimant was cross examined for two and a half days. The cross examination was courteous, fair-minded but exacting. The Claimant was not an impressive witness and any findings in his favour can fairly be said to be in spite of his evidence rather than because of it. We were informed that the Claimant had mild dyslexia and we allowed him more time to consider documents and give his answers. We consider that the Claimant did his best and did not seek to deliberately mislead the Tribunal but his recollection was poor and at times he just found it easier to give the first answer that sprung to mind. A regular feature of his evidence was to provide an answer and then when the contrary being recorded contemporaneously was put to him or some other reason why his answer could be incorrect, he resorted to stating that he could not remember which of course was contradictory to the positive answer given earlier. There were times where there seemed to be a disconnect between the case as set out in the List of Issues and the Claimant’s understanding of what his case was. He was wholly unable to articulate what the something arising might be in relation to his section 15 EqA claim and his victimisation claims seemed similarly alien to him. That rightly led to their withdrawal

[133]Jarvis when she gave her evidence was able to reflect that from time to time she had failed to undertake tasks relating to the Claimant adequately and so, at least, had some capacity to reflect upon what she had done. Egala did not have that capacity and continued to stick doggedly to the party line, no matter what the evidence said. The Tribunal does not need to emphasise how disappointing many aspects of the Respondent’s managerial and Human Resources actions and behaviours were. Unfair Dismissal

[134]The Respondent conceded that the Claimant had been unfairly dismissed at the very end of the trial, after all of the evidence and just before closing submissions. In light of that and because of the myriad failings we have identified throughout this Judgment we do not need to go into great detail in these conclusions. The Tribunal consider that a more clear-cut case of unfair dismissal would be hard to find.

[135]The potentially fair reason for dismissal is given as capability according to the List of Issues but the Tribunal do not accept that is made out in this case. The Claimant was hounded out of his primary role and despite being the victim was the one moved. There were then a series of placements where the Claimant was not wanted and criticisms of the Claimant were taken at face value without investigation. The Claimant’s failure became a certainty before the placements even started. Rumours about him meant that he was never given a fair chance. It is acknowledged that some behavioural traits may have rendered him strange to some but being quirky is not normally a ground for dismissal.

[136]The Respondent was set on not sending him back to his primary place of work. They would much rather not upset the bullies than do the right thing. The Claimant was sacrificed for what was perceived as an easier working life. Often they would seek medical reasons so as not to send him back but those attempts failed. We find as a fact that there was never any real belief that the Claimant was suffering from mental health issues but the referrals were simply a means of hopeful justification for not returning the Claimant which took a substantial period to conclude. When that did not work they went for a neutral evaluation which we find to be flawed for reasons given earlier.

[137]The more time that went on the less likelihood there was that anyone would take the Claimant. The Claimant was dismissed but reinstated when at least one individual within the organisation had the courage to give the Claimant a fair hearing. The failings identified at the first dismissal were clear and obvious but were never acted upon. In fact, they were compounded when again after the stint with Jackson the Claimant had his trackside accreditation removed without any proper investigation thereby cutting his opportunities for redeployment drastically.

[138]Despite the Claimant raising that point during the redeployment period post first dismissal nobody is prepared to look at the trackside issue and confront the paucity of the evidence. Vaughan shows a spark of understanding and asks for more evidence but is quickly shut down and silenced by Egala. He identified the fundamental problem, but by that time Egala was not interested in righting any wrongs. There was never any proper investigation into the Claimant’s trackside capabilities which in his passport were without issue and that failing renders each subsequent decision as being flawed. Without hesitation the Claimant was unfairly dismissed. The Respondent has not made out the lack of capability and the process was flawed on account of the failure over a substantial period to do any fair and proper capability assessment relying upon tittle tattle instead. Perceived Discrimination

[139]The Claimant withdrew the claims pursuant to section 15 of the Equality Act 2010 and proceeds on a number of allegations of direct discrimination. The alleged perpetrators of the direct discrimination are wide.

[140]The definition of direct discrimination in S.13 EqA extends to protecting against less favourable treatment meted out because, consciously or unconsciously, the Claimant is perceived to have the protected characteristic in question. The hypothetical comparator for determining whether there has been less favourable treatment in such a case was considered in Chief Constable of Norfolk Constabulary v Coffey

2018 ICR 812

. The EAT observed that the correct hypothetical comparator was a person who was not perceived to be disabled and who had the same abilities that the Claimant had. That view was endorsed in the Court of Appeal.

[141]Given the wording of S.13 EqA, the perception that a person has a protected characteristic is a potential ground of unlawful discrimination if it can be shown that the less favourable treatment was influenced by that (mis) perception.

[142]Where a condition is not deemed to be a disability, it is only treated as one if it meets all of the statutory definition (including the fact that the person perceived to be disabled has a physical or mental impairment which has a substantial and long-term effect on the person’s ability to carry out normal day-to-day activities). There is limited case law on whether an employer must wrongly perceive that all the elements of the definition are satisfied in order for section 13 EqA to apply?

[143]In Coffey cited above which is, to date, the only appellate authority on discrimination because of perceived disability under the EqA suggests that the scope of protection is broader than that. On appeal, the EAT held that the question of whether a putative discriminator, A, perceives B to be disabled will not depend on whether A perceives B to be disabled as a matter of law but will instead depend on whether A perceives B to have an impairment with the features set out in the EqA’s definition of disability.

[144]On further appeal to the Court of Appeal, it was common ground between the parties that, in a claim of perceived disability discrimination, the putative discriminator must believe that all the elements in the statutory definition of disability are present, although it is not necessary that he or she should attach the label ‘disability’ to them. Coffey very much dealt with a progressive condition or one that was perceived to be progressive (hearing loss) and so is somewhat different to this claim.

[145]Did the Respondent or any of its employees perceive that the Claimant was disabled? Having carefully considered the evidence we think not. We have made that clear on numerous occasions during these Reasons. We will break the allegations down to focus on the individuals making the decisions. Within the List of issues the focus is placed on Jarvis, Phillips and Jackson primarily.

[146]The claims against Jarvis firstly revolves around her decision around: a) The Claimant being moved department by Jarvis)on or around 18 February 2019 because she perceived the Claimant to have a mental illness, despite obtaining medical evidence to the contrary; b) Around 18 August 2019 Jarvis prevented the Claimant from returning to his substantive post on the grounds of a perceived mental illness, even though occupational health had cleared him as fit to return to this substantive post. c) In the referral forms to occupational health dated 1st October 2019 and 13 August 2021 Jarvis alleged that the Claimant had a mental illness and was paranoid, despite previously obtaining medical evidence to the contrary.

[147]The Tribunal are quite satisfied that Jarvis never genuinely perceived that the Claimant had a mental illness which was a disability. As the Claimant himself noted she was in possession of medical evidence which was very clear that he was not. She persisted with her suggestions not from a genuine belief that he was ill, but because Jarvis was doing anything she could to try and find a way out of returning the Claimant to the Team because she was concerned that he would cause unrest in the Team and they would cause trouble if he was returned. As stated above it was weak management – it was not, we are satisfied, perceived disability discrimination.

[148]It is correct that the Claimant’s colleagues, in the neutral assessment on or around 17 August 2020 broadly asserted that they did not feel safe working with the Claimant, and the Respondent used this as a basis for not permitting the Claimant to return to his substantive role and/or any other trackside role. Certain individuals within the Claimant’s former team were influential and used that influence to ensure that there was sufficient negativity set out in the Neutral Evaluation to ensure the Claimant did not return. As stated earlier in these Reasons that was the outcome that management wanted as they were effectively unprepared to stand up to those employees. Although the evidence was weak re safety issues, it was simply a complaint because the Claimant was not liked and part of the campaign to oust the Claimant. We are satisfied that it had nothing to do with any perceived disability and we do not consider that his fellow workers held that perception. They simply did not wish to work with the Claimant either because they had a personal grudge against the Claimant, were associated with those who had a grudge against he Claimant, or had heard rumours which they chose to believe about the Claimant.

[149]Another disability complaint is in relation to the failure by the Respondent to allow the Claimant to return to work following his successful appeal against his dismissal on 18 June 2021 and the Respondent making insufficient efforts to find the Claimant alternative work, both prior to his dismissal in April 2021 and the Claimant’s ultimate dismissal. Again, we do not consider that this had anything to do with the Claimant being perceived to have a disability. This was largely to do with Human Resources, or indeed anybody else, failing to undertake a careful examination of why the Claimant was deemed unable to work trackside. The evidence was incredibly thin. The Tribunal are satisfied that if the Claimant had been able to work trackside then he would in all likelihood have got a job. Although we accept that there were many failings by the Respondent on the Claimant’s management we do not accept that any of that flowed from any perceived disability and again we find those who dealt with him in the period of those allegations did not hold that perception. He was a problem and he was eased out with Egala making sure there was no enquiry into his trackside issues. Post his reinstatement we do not accept that there was any perception that the Claimant was disabled.

[150]Finally the Claimant alleged that “In January 2019 the Respondent, particularly Darren Phillips would not have asked about the broken knives incident, without actually giving details of such incident, and then would not have asked the Claimant, under direction of Karen Jarvis, to go home, had it not been that the Respondent perceived that the Claimant had a mental illness (despite receiving an occupational health report that he had no such illness, and was fit to return to work)”. The Tribunal do not consider that these matters had anything to do with any perceived disability. Phillips spoke with the Claimant as part of his investigation into matters and we accept Jarvis’ evidence that the Claimant was sent home for what she considered was his own welfare as he was being bullied. Jarvis should have done more to ensure the Claimant was safe in the work-place and addressing the bullying but we accept at that time she sent the Claimant home as that was the easiest option. It had nothing to do with the Claimant’s mental health which as the Claimant has indicated had already been checked out and no problems had been identified.

[151]It follows that the perceived disability discrimination claim is not well founded and is dismissed. Race Discrimination Claims

[152]We deal with each of the allegations of race discrimination in the following way. Firstly, we will provide an overview of the law in relation to harassment. After that, we will consider whether factually the allegations are made out, secondly we will consider whether or not the allegation is made out as a matter of harassment and then if not we will consider whether the allegation amounts to direct discrimination. Key to our determination will be whether any of the harassment is related to the Claimant’s race (harassment) or is because of his race for direct discrimination claims. We are mindful of the statutory provisions relating to the shifting burden of proof and the case law flowing therefrom. Harassment – the law

[153]Section 26 of the Equality Act 2010 reads, so far as is relevant to this case as follows: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B…. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are….disability. 153. In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, the EAT stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue and that, in each context, 'harassment' is defined in a way that focuses on three elements: (a) unwanted conduct; (b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for him/her; (c) on the prohibited grounds (that is, of sex, race, disability and so on). That refers back to wording of the statute before the Equality Act 2010 and now the consideration needs to be whether it is related to the relevant protected characteristic which in this case is disability.

[154]The EAT remarked that it would normally be a 'healthy discipline' for tribunals to address each factor separately and ensure that factual findings are made on each of them.

[155]In Dhaliwal, the EAT went on to make the following general points:(a) Older case law decided before the modern statutory coverage is 'unlikely to be helpful'. Similarly, assistance is not to be sought from the 'entirely separate provisions' of the Protection from Harassment Act 1997.

(b) The alternative bases in element (b) above of purpose or effect must be respected so that, for example, a respondent can be liable for effects, even if they were not his purpose (and vice versa).

(c) In each case, there is a proviso that means that, even if the conduct has had the proscribed effect, it must also be reasonable that it did so. There is of course a subjective element ('… having regard to … the perception of that other person …') but ultimately the proviso can deal with cases of unreasonable proneness to take offence. Although 'purpose' is not determinative, it can be a factor: 'the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt' (at para 15 of the Judgment). Ultimately, this is all 'quintessentially a matter for the factual assessment of the tribunal'.

[156]In Pemberton v Inwood

[2018] EWCA Civ 564

, the Court of Appeal took the opportunity to re-visit the guidance given in Dhaliwal, to address what was identified to be a subtle change in wording in the Equality Act 2010 s 26, as compared to the earlier formulation under the RRA 1976 s 3A. Although not considering that this gave rise to any difference of substance, Underhill LJ re-formulated the guidance to better reflect the language of the Equality Act, as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA 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 take into account all the other circumstances (subsection 4(b)).''

[157]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 them, then it should not be found to have done so.

[158]Dhaliwal concluded as follows: ''We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[159]The question of whether the conduct is unwanted requires an assessment of the Claimant’s reaction to what has taken place. The Claimant has set out in the List of Issues the specific conduct that she asserts was unwanted and an assessment needs to be made if that is truly the case.

[160]'Conduct' can be physical or oral and can cover messages and images contained in documents or sent by email or distributed or displayed by other means. The conduct complained of as an act of harassment may be a dismissal. This was confirmed in relation to positive dismissals in Urso v Department for Work and Pensions

[2017] IRLR 304

, EAT.

[161]Although a complaint of harassment carries the implication of conduct persisting over a period of time, there is no requirement that this be so. A single act, if of sufficient seriousness, can be enough.

[162]Harassment will be unlawful if the conduct had either the purpose or the effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them) hereafter the prescribed effect).

[163]A claim based on 'purpose' would plainly require an analysis of the alleged harasser's motive or intention. This may, in turn, require the Employment Tribunal to draw inferences as to what that true motive or intent actually was as the person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. In such cases, the burden of proof may shift from accuser to accused, as it does in other areas of discrimination law.

[164]Where the claim simply relies on the 'effect' of the conduct in question, the perpetrator's motive, or intention, which could be entirely innocent. is irrelevant. The test in this regard has, however, both subjective and objective elements to it and the EqA says that the following must be taken into account: the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have had the effect. The assessment requires the Tribunal to consider the effect of the conduct from the complainant's point of view; the subjective element. It must also ask, however, whether it was reasonable for the complainant to consider that conduct had that requisite effect; the objective element.

[165]As a consequence of the objective element to the test of whether conduct amounts to 'effect' harassment, the fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not necessarily mean that harassment will be shown to exist. In this regard, see the guidance given by the EAT in Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, which concerned the approach to be taken by employment tribunals, in determining whether alleged harassment constituted discrimination on grounds of sex. In Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered. That said, harassment giving rise to the defined effect may arise as a result of nicknames, teasing, name calling or other behaviour even when this is carried on without malicious intent.

[166]Although the focus will be on the behaviour which is complained of as harassment, the conduct of the complainant themselves may not be entirely irrelevant. Tribunals will wish to be careful not to engage in 'victim-blaming', but the complainant's own behaviour and perspective will be part of the context in which the alleged 'harassment' will have to be seen.

[167]There is no requirement for the complainant to put forward a comparator (hypothetical or real). The conduct must, however, be 'related to' a relevant protected characteristic. Ultimately, the protection is against harassment that is, itself, a form of discrimination. Bullying is, of itself, not discrimination, except in the unhelpful sense that it involves treating some individuals differently to others.

[168]All that said, 'related to' imports a potentially very broad test, leaving the scope of the term largely to employment tribunals to apply on a case-bycase basis. Having established on the evidence what was the conduct of the particular individual or individuals in question, the employment tribunal has then to apply an objective test in determining whether it was 'related to' the protected characteristic in issue; the intention of the actors concerned might form part of the relevant circumstances but will not be determinative of the question the tribunal has to answer.

[169]Whilst the view of the complainant that the conduct in question is related to the protected characteristic in question is a relevant matter, it is not determinative. The Tribunal needs to articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged. It may be “because of” the protected characteristic, but case law dictates that related to is wider than just “because of”. Conclusions on Harassment Allegations

[170]Allegation 6.2 - Leaving an English Defence League / BNP leaflet in Claimant’s locker on or around November 2018 - We accept on the balance of probabilities that this document was left for the Claimant to find. His evidence before us was that it was found in his boots and /or locker. The leaflet is from a known organisation with racist views, and we consider that in the context of such a document being left in the boots of a British Asian man, that notwithstanding the fact that it is a leaflet attacking Islam, it was a clear sleight against the Claimant and his race / colour. We have not heard any evidence from whoever placed the leaflet and we conclude that the purpose of doing so was to create the proscribed effect. In the alternative it plainly had that effect We accept that it was unwanted and that it was inevitably going to produce a hostile etc. atmosphere and it was reasonable for the leaflet to do so considering all the circumstances of the case and the Claimant himself. It was an act of racial harassment. Subject to issues relating to time limits allegation 6.2 is well-founded.

[171]Allegation 6.3 - Leaving two items of racist and bullying material in communal area with Claimant’s name on them, with comment alleging that Claimant was responsible for a recent stabbing on or around January 2019. It is common ground that two clippings of the type described were found in the Claimant’s boots and in a drawer. Whilst some held suspicions that it may have been the Claimant who placed them there, and whilst that is not beyond the realms of possibility, on the evidence before it, the Tribunal finds on the balance of probabilities that they were placed there as a further act of bullying towards the Claimant. As with the first allegation at 6.2 it is not possible on the evidence before us to find who actually placed the EDL leaflet or the clippings, although it is fair to say that within the depot there are some candidates who may have had the motivation to do so and who might be deemed more likely suspects.

[172]What the Tribunal does conclude however is that it is on the balance of probabilities it is more likely than not that it was the same person or persons who sent all the bullying material and the fact that the first we have found to have been posted for a reason related to race it follows that the burden must shift to the Respondent to prove that the clippings were in no way linked to the Claimant’s race. They have not produced any evidence to discharge that burden and so because we find that the clippings were unwanted and on the Respondent’s own case created a hostile etc environment for the Claimant and it was reasonable to do so. Subject to issues of time limits allegation 6.3 is well-founded.

[173]Allegation 10.2. 10.3 and 10.4 - In January 2019 the Respondent, particularly Darren Phillips would not have asked the Claimant about the broken knives incident, without actually being given details of such incident, and then the Respondent, particularly Darren Phillips under direction of Karen Jarvis would not have asked the Claimant to go home, had it not been for the Claimant’s race.

[174]We have already dealt with this matter in relation to perceived disability. So far as the first part is concerned about Darren Phillips the Claimant’s case is that he was not specifically asked about the broken knives (see paragraph 34 of the Claimant’s statement where the Claimant simply asserts he was asked if he noticed anything out of the ordinary). Jarvis indicates that she delegated to first line managers / supervisors the task of asking if anybody knew anything about it. We are satisfied she did do that, and we are satisfied that she asked for everybody to be spoken to regardless of race, disability status or whether or not an individual had raised a protected act. The fact that there is no written record and the enquiry may not have been done effectively and as Jarvis required does not surprise the Tribunal taking into account the somewhat dilatory approach to written evidence of even important conversations / enquiries by the Respondent’s managers. We have found that the Claimant was asked as were others. Factually we find that in so far as being questioned about the matter of the knives there was no difference in treatment towards the Claimant and are unable to see that it created a hostile environment nor that it was related to any protected characteristic / protected act.

[175]So far as the Claimant being asked to go home, although we question why that was necessary we accept that for any individual who was being treated in the way the Claimant was and in the context of the whole history then that was what the Respondent would have done regardless of race. We have accepted that Jarvis did it for what she perceived was in the Claimant’s best interests. It was not motivated by race at all although we accept that it was unwanted.

[176]Allegation 10.5 - The Claimant, in the report from the neutral assessment prepared for Karen Jarvis by CMP dated 17 August 2020, being blamed for the breakdown in relationships in the department, when the reasons given for the Claimant being responsible for this breakdown included the Claimant making complaints of discrimination. The Tribunal can understand that the outcome of the Neutral Assessment was unwanted by the Claimant and that it would have created a hostile environment for him. Nobody wants to find out that they are not able to return to where they wish to work. We have already expressed out finding that we did not consider that the piece of work was balanced from the outset in the terms of reference. Having said that the outcome was an inevitable one taking into account the strident responses but we do not accept that the author of the report was motivated by race at all when she came to her conclusions and recommendations.

[177]Allegation 10.6 -The Claimant’s colleagues alleging that they did not feel safe working with the Claimant, and the Respondent, particularly Karen Jarvis using this as a basis for not permitting the Claimant to return to his substantive role and/or any other trackside role on or around 17 August 2020 – Again discovering that one’s colleagues do not wish to work with you would be unwanted and again we accept that it would have created a hostile atmosphere. We accept that safety was used as the lever to remove him without any real clear evidence but we are quite satisfied from the evidence that the reason why people did not wish to work with him was down to the Claimant being considered to be strange and quirky and there being rumours around his conduct as opposed to anything to do with the Claimant’s race.

[178]Allegation 10.7 and 10.11 - The failure by the Respondent, particularly Karen Jarvis, to allow the Claimant to return to work following his successful appeal against his dismissal in June 2021 / April 2021 and he Claimant would not have been prevented from returning to his substantive post, had it not been for his race. This ultimately resulted in the Claimant being dismissed in April 2021. This has been explained above. Jarvis did not know what to do with the Claimant but did not wish to upset the previous Team and with the restrictions the Claimant was not an attractive proposition. We are satisfied that race played no part in this aspect of the Claimant’s time with the Respondent.

[179]In these reasons we have been scathing about the Respondent’s handling of the Claimant’s issues right from the start. We have found that there were a limited number (perhaps even only one) individual who did have an issue with the Claimant’s race. The Respondent’s conduct is so obtuse that we accept that the reason for the same needs to be carefully considered and accept that the burden has shifted but we are equally satisfied that from a management perspective actions were not influenced in any way by the Claimant’s race but were rather for reasons of expediency and an easy life which ultimately led to the Claimant’s removal. We are satisfied that for the reasons stated above race had no part in the management actions which are the subject of this claim. Save for the two harassment matters detailed above we reject the remaining claims of race discrimination, both direct and harassment. Time Limits

[180]The last matter to deal with is that of time limits. In unlawful discrimination because of, inter alia, race, claims may be considered out of time provided that the claim is presented within “such other period as the employment tribunal thinks just and equitable”. (s.123(1)(b) EqA).

[181]In this claim the Tribunal have found there to be two proven acts of race harassment which took place in November 2018 and then in January 2019. The Tribunal are satisfied that the two acts were linked and so the last date from which time would flow will be the January date. The time limit for bringing such a claim would be, absent any Early Conciliation extension, the end of April 2019 and the Claim was brought on 7 June 2024. The Claims have been brought approximately five years and one month out of time.

[182]The discretion afforded to a Tribunal in considering whether it is just and equitable for time to be extended is a wide one but we remind ourselves that it is by no means a foregone conclusion. In Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, in the Court of Appeal it was said that “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 the discretion is the exception rather than the rule.” The onus is therefore on the claimant to persuade the tribunal that it is just and equitable to extend the time limit. However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds.

[183]In Miller and ors v Ministry of Justice EAT 0003/15 it was said that: a) the discretion to extend time is a wide one b) time limits are to be observed strictly in employment tribunals. There is no presumption that time will be extended unless it cannot be justified. The reverse is true: the exercise of discretion is the exception rather than the rule c) If a tribunal directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, ‘perverse’, i.e. no reasonable tribunal properly directing itself in law could have reached it, or the tribunal failed to take into account relevant factors, or took into account irrelevant factors, or made a decision which was not based on the evidence d) What factors are relevant to the exercise of the discretion, and how they should be balanced, are a matter for the tribunal. The prejudice that a respondent will suffer from facing a claim which would otherwise be timebarred is customarily relevant in such cases e) The tribunal may find the checklist of factors in S.33 of the Limitation Act 1980 helpful (but this is not a requirement and a tribunal will only err in law if it omits something significant.

[184]In Jones v Secretary of State for Health and Social Care

2024 EAT 2

, His Honour Judge James Tayler reviewed the authorities relating to extensions of time on just and equitable grounds and noted that there was a ‘common practice’ among those seeking to argue that time limits should not be extended of relying on the comments of Auld LJ in that time limits in the employment tribunal are “exercised strictly” and that a decision to extend time is the “exception rather than the rule”, as if they were principles of law. HHJ Tayler stated that the practice of relying on these comments out of context should cease. The propositions of law for which Robertson is authority are that employment tribunals have a wide discretion to extend time on just and equitable grounds and that appellate courts should be slow to interfere, and therefore the comments of Auld LJ needed to be viewed in that context.

[185]Section 123 EqA does not specify any list of factors to which a tribunal should have regard in deciding whether to extend time for just and equitable reasons. As stated the EAT suggested that in determining whether to exercise their discretion to allow the late submission of a discrimination claim, tribunals would be assisted by considering the factors listed in and requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has co-operated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.

[186]Subsequently, however, the Court of Appeal in Southwark London Borough Council v Afolabi

2003 ICR 800

, confirmed that, while the checklist in S.33 provides a useful guide for tribunals, it need not be adhered to slavishly. The checklist in S.33 should not be elevated into a legal requirement but should be used as a guide. However, the Court went on to suggest that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). A Multi factorial approach is plainly required. Some of those factors are: a) The balance of prejudice i.e., what prejudice would each party suffer in the event of a decision being found against them. b) The Claimant’s explanation for the delay. c) The length of the delay. d) Incorrect Advice e) Ignorance of rights or facts f) Ongoing internal procedures g) Health issues h) Merits of the Claims

[187]The Respondent urges the Tribunal not to extend time. It asserts that the Claimant could plainly have brought these claims much sooner and that the Claimant did have access to advice from his Trade Union and CAB. The Respondent asserts that they would be significantly prejudiced if time is extended as the Claimant did not really raise much of a complaint which in turn led to no investigation and in any event the culprit without CCTV was unlikely to be found. It indicates that it has been deprived of calling witnesses about the issues and those that were about have faded memories and there has been difficulty in gathering documents. I accept that those representations were made in relation to a far longer stream of race related allegations.

[188]In respect of prejudice the Claimant asserted the following: “Substantial prejudice would be caused to the Claimant if the extension were not granted as it would leave the Claimant without an avenue to pursue a substantial portion of their claim. By contrast, whilst some years have passed since the incidents of racism …. as set out below, contemporaneous documentation is available and the Respondent is not left in a situation where the quality of the evidence available has substantially deteriorated. Although the Respondent failed to undertake a thorough investigation into the racist incidents in early 2019, they would face the same difficulties, regardless if the discrimination claims had been brought within time or not”.

[189]The Tribunal take the following matters into account: a) The length of time between the acts of race harassment found and bringing the Claim is substantial. It is acknowledged that the Claimant could have brought a claim at any time from the harassment to the date he actually did bring the Claim. b) Whilst the Claimant did have access to advice, the nature of the support he received from his Trade Union was ad hoc. c) The Tribunal can understand that there were reasons why the Claimant did not raise a race related claim and the principal one was that to the very end he was hoping he could return to his initial job where the discrimination took place and he was acutely aware and we find rightly so that an allegation of race discrimination would not endear him to those who had fought so hard to have him excluded. d) The prejudice to the Claimant is substantial in that we have found that acts of race discrimination took place by staff that the Respondent is legally responsible for and he would lose the opportunity to be compensated for that statutory wrong. e) The prejudice to the Respondent is that they may have to pay compensation for those wrongs on a claim where they have a technical time limit defence. f) The Tribunal do not consider that the length of the delay has caused any actual prejudice to the Respondent in contesting the allegations at all. Even if the Claimant did not specifically seek an investigation under their own harassment and equality policy the Respondent decided not to anyway. That was a failing on their part and the reason why they have a paucity of evidence to defend the allegations is because they did not make the enquiries they should have made at the time. It is possible that somebody would have blown the whistle on the perpetrators but it is also acknowledged that without CCTV an investigation at the time may not have yielded a culprit. In some senses not having a culprit is not an issue as we have found that on the balance of probabilities the culprit was one or more of the Claimant’s work colleagues. g) The Claimant at all times was seeking a return and so his desire not to up the ante and potentially spoil a chance to get back into a job is understandable.

[190]The Tribunal considers that the prejudice of refusing the extension to the Claimant substantially outweighs the prejudice to the Respondent of having to deal with the claim at this time even after such a long time. The delay is lengthy but we can empathise with the Claimant who was focused on securing a role internally because he wished to remain working within the Respondent despite their behaviour towards him. We do not consider that the cogency of the evidence the Respondent could bring is adversely affected as the facts are pretty much agreed and all that is required is an interpretation of whether those facts amount to racial harassment which we have found relatively straightforward.

[191]We consider it just and equitable for time to be extended and accordingly the harassment claims detailed above are well founded.

[192]The matter will need to be relisted for all matters related to remedy to be considered. The parties are encouraged to seek to try and agree remedy if possible but both parties must submit their dates to avoid to the Employment Tribunal within 7 days of receipt of this Order to enable a date to be fixed. It is anticipated that evidence will be limited and a half day (3 hours) would be sufficient. APPROVED BY