Mr R Howells v Castle Construction (Cheltenham) Ltd and Mr A Clark: 1401847/2022
EMPLOYMENT TRIBUNALS
Case No 1401847/2022
Between
Mr R HowellsClaimantCastle Construction (Cheltenham) Ltd and Mr A ClarkRespondent
Before
Employment Judge LiveseyIn person for claimantDate 9 April 2025
JUDGMENT
The Claimant’s complaints of unfair dismissal on the grounds of having made public interest disclosures, discrimination on the grounds of disability and victimisation are not well founded and are dismissed.
REASONS
[1]Claim1.1 By a claim form dated 7 June 2022, the Claimant brought complaints of discrimination on the grounds of disability and automatically unfair dismissal on the grounds of having made public interest disclosures.1.2 The claim was originally issued against the limited company only, but Mr Clark was added as a respondent at the Case Management Preliminary Hearing which was conducted on 25 April 2024 by Employment Judge Christensen.[2]Evidence2.1 The Claimant gave oral evidence in support of his case and called one further witness by video (CVP), Miss R Gathercole, a former employee of Roomsbooked Ltd.2.2 A further witness who was due to attend under a witness order, Mr Fletcher, wrote in to ask for the order to have been cancelled for a number of reasons. The Claimant agreed and the order was discharged on 31 March.2.3 The Respondents called the following witnesses in the following order; - Ms Gebing; Housekeeping Manager of the Oakwood Hotel, Gloucester; - Mr Clark; the Second Respondent; - Ms Porter; the Respondent’s Bookkeeper and HR; - Ms Pitt; General Manager of the Oakwood Hotel, Gloucester; - Mr Barry; Managing Director of the First Respondent; - Mr Cox; Consultant at Peninsula Face2Face.2.4 Mr Harris, another Consultant with Peninsula Face2Face, and Mr McCann, the former Health and Safety Manager and the Claimant’s predecessor, did not give evidence in person and their statements were read. Mr Taylor, a former Director of Castle Construction Ltd, was to have given evidence, but his evidence was agreed and his statement was also read.2.5 The following documentation was provided; - A hearing bundle of documents (R1); - A supplementary bundle (C1); - Disclosures to the Pensions Regulator (C2);[3]Relevant background and the issues3.1 There had been no less than five previous Case Management Preliminary Hearings in the case and it was clear from a reading of the Tribunal’s file that the litigation had absorbed a disproportionate amount of time and energy and that there had been a history of non-compliance with previous orders. The case had also previously been listed for final hearing in March 2024. The previous orders reflected the judges’ views of the Claimant’s approach to the litigation in particular. ‘Unless orders’ had been made against him by Employment Judge Midgley on 8 October 2024. Employment Judge Woodhead’s Order and Case Summary of 21 February 2025 summarised the position, which did not need to be set out again here.3.2 The issues for determination at the final hearing had been discussed at each of the previous case management hearings and a definitive list appeared in the Case Summary of 21 February 2025. Those issues were re-visited at the start of the hearing and the following further clarification was provided; - Paragraphs 2.2 and 2.3; the Claimant clarified that he relied upon the combined effects of the loss of vision in his right eye and the partial loss in his left. The Respondent admitted the existence and knowledge of the Claimant’s poor vision, although no admissions were made as to its extent; - Paragraphs 4.1.1; it was accepted that the Pensions Regulator was a ‘prescribed person’ under the 2014 Order, but no further admissions were made; - Paragraph 4.1.5; the Claimant relied upon paragraph 4.1.5.2 and asserted that there had been a breach(es) of a legal obligation which he had made disclosures about; - Paragraph 5.2; the Claimant maintained that his Long Covid had been the cause of the matters set out in paragraphs5.2.1 and5.2.2 but that it had been a combination of both disabilities which had led to the other detriments; - Paragraph 6; the claims under s. 15 were clearly all related to Long Covid (paragraph 6.2); - Paragraph 7.3.1; the Claimant asserted that his Long Covid had caused the disadvantages set out in paragraphs 7.3.1 to 7.3.3 but that it was a combination of his disabilities which had led to 7.3.4 to 7.3.6; - Paragraph 8.1; during the course of the hearing, the Respondents ultimately conceded that the protected acts relied upon in paragraphs 8.1.4 and 8.1.5 did qualify as such.3.3 The hearing had been listed to determine all matters of liability only.[4]Hearing4.1 The hearing had been listed to take place before an employment judge sitting with members but, due to the unavailability of the latter, the Regional Employment Judge directed that it should have been heard by a judge sitting alone in his email dated 27 March 2025.4.2 The solicitors previously acting for the Claimant came off record on 20 March 2025. He therefore represented himself but was assisted by a disability support worker.4.3 Upon receipt of the hearing documents, on Friday 28 March, the Judge noted that the directions had been breached in relation to the witness statement length. The Claimant addressed the issue in an email in reply and suggested that certain elements of his evidence could have been overlooked. As it was, the entirely of his statement was read.4.4 Adjustments for the Claimant had been discussed extensively at previous case management hearings. In respect of his visual impairment, a large monitor was provided for his use during the hearing. In respect of his Long Covid and fatigue, the case had been listed in order to accommodate extra breaks and, at the start of the hearing, he was invited to indicate when/if he needed to take one. He did not, however, request more than the morning and afternoon breaks which were habitually taken and the evidence was concluded more quickly than had been anticipated.4.5 Both parties requested that full written reasons were prepared in the event that they were unsuccessful and their attendance for judgment was therefore dispensed with on the basis that these Reasons were to have been produced.[5]Facts5.1 The following factual findings were made on a balance of probabilities. Page references below are to pages within the hearing bundle, R1, unless otherwise indicated and they have been cited in square brackets. The Respondents5.2 The First Respondent is a company within a larger group which carries out construction and facilities management work for premises, including hotels, houses of multiple occupation (‘HMOs’) and offices. It only undertakes work for businesses within the group. Clark Holdings (UK) Ltd is the parent company. It owns many of the properties which other businesses use or run. For example, Roomsbooked Ltd, another business in the group which manages and runs several hotels, lets its hotels from Clark Holdings (UK) Ltd and some other property holding special purpose vehicles (‘SPVs’). Castle Properties Ltd is a lettings business. The properties and HMOs let are also owned by Clark Holdings (UK) Ltd or other SPVs.5.3 Those four businesses were the main businesses which were relevant to the claim. Together, they employ approximately 200 employees, only one of whom was employed by the First Respondent at the material time; the Claimant. The others who worked for the First Respondent were/are self employed tradesmen.5.4 Henley House LLP was another business which featured in the evidence. That is an accountancy business which undertakes work in respect of the Clark family’s tax affairs and accounts.5.5 The Second Respondent is the Managing Director of Clark Holdings (UK) Ltd and was a director of the First Respondent. Mr Barry holds that position now. Many members of the Second Respondent’s family are involved in one or more of the group businesses.5.6 Throughout the material period and still now, Ms Porter was employed by the First Respondent as a bookkeeper, but she also acted as a point of contact for HR matters. Since the Claimant’s departure, a dedicated HR Manager has been engaged. The Claimant and the start of his employment5.7 The Claimant was employed as Health and Safety Manager from 31 May 2020, based at the First Respondent’s Head Office at Milsom Street, Cheltenham.5.8 The advert for the role specified that the employer was “a group of companies” involved in construction and “maintained a small hotel chain & property rental portfolio”. The advert specified that it was for “a manager to look after the entirety of all Health and Safety matters, from Fire Risk Assessments, Staff Inductions, site safety, running CDM files etc etc” [224] and that it would have included the “Updating [of] our Company H & S Policies & Procedures….. Maintaining a sites risk assessment” [225] and other matters. An indication was given that, although the group’s sites mainly lay in Cheltenham and Gloucester, some travel to places such as Wakefield and/or Doncaster would have been occasionally required [225].5.9 The Claimant’s application suggested that he had an extensive experience within the fields of construction, training and health and safety [226-9], which he confirmed at interview with the Second Respondent. Upon his appointment, he was the only person in the role. He had replaced Mr McCann.5.10 There was a significant dispute as to what documentation the Claimant had received in relation to his employment at its commencement and, more importantly, the scope of his role.5.11 The Respondents’ case was that the Claimant received his contract before 24 August 2022, but he did not sign or return it. The Respondents signed and retained the copies that they had nevertheless (Mrs Clark and Mr Barry; [232-3] and [234-243]). The contract set out a summary of his duties and which incorporated the requirements to undertake, amongst other things; - “All risk assessments, building, personal, work - Fire risk assessments - Fire evacuation plans - Fire panel, extinguishers, emergency lighting testing…. - Legionella testing…” [234-243].5.12 The Respondents further argued that the Claimant’s initial work reflected his understanding of the breadth of his duties; he prepared a risk assessment in the first few days of his employment which applied across the group [269- 271] and, in paragraph 10 of his witness statement, he appeared to have accepted at least some responsibility for carrying out work towards risk assessments in the hotels business. The document at [384] also reflected him having undertaken inspections of hotel rooms.5.13 The Claimant claimed that he did not receive a copy of a contract, job description or any other employment related documents when he started his role (paragraphs 3 and 13 of his witness statement). He said that he had experience in health and safety from a construction perspective and understood that his remit had been limited to that part of the business.5.14 He was subsequently to have alleged, however, that the contract that was supplied to him during the grievance process was ‘different’, indicating that he had had a previous copy (paragraph 86 of the dismissal report [1006]). Mr Cox was not cross examined on that finding in his report.5.15 The Claimant also said that, although he had had previous contracts and/or terms and conditions from his previous employers, when did not get them from the First Respondent, he never asked for them until the parties were in dispute in 2022. He said that he had not asked because he had understood that he had been undertaking a temporary role, although he accepted that the advertisement had never suggested that it was anything other than permanent.5.16 In my judgment, it was more probable than not that the Claimant had received a copy of the contract for the following reasons; - Mr Barry’s evidence, about the circumstances in which he and Mrs Clark had signed the documents in lieu of the Claimant returning the copies that had been given to him, was never challenged. Despite encouragement to do so, the Claimant shied away from cross-examining Mr Barry about the issue; - The Claimant’s evidence about the reasons for not having asked for a contract was not compelling (see paragraph 5.15 above); - The contractual documentation had been specifically tailored to the Claimant and the requirements of his role. The dates and signatures appeared genuine. He had previously sought the meta-data for them as he had suspected that they had been forged and the evidence retro-fitted to suit the Respondents’ case. That was obviously a serious allegation to have made and one for which there was no evidential foundation.5.17 The contract was only really important insofar as it set out the scope and extent of the Claimant’s duties. Even if he had not received it, it was, in my judgment, clear to him from the totality of the evidence that his responsibilities stretched across the group and had not been limited to the construction side.5.18 The job advert had made that clear, but some of his initial actions also reflected the assumption of that responsibility [269-271]. Further, he conceded in evidence that he had provided the Fire Safety Management Structure which had broad application across all of the Roomsbooked properties and which identified him as the ‘competent person’ to carry out and review fire safety risk assessments and management plans [348]. He was clearly being asked for health and safety guidance and support from the hotels side of the business [376-8].5.19 Mr Barry also gave clear evidence as to his understanding of the Claimant’s remit; whilst Mr Barry had had some day-to-day responsibility for health and safety issues on the construction side of the business, the Claimant had had that responsibility for the hotels; “that was always the Health and Safety manager which was Dean McCann before Rob then Rob.” (paragraph 7 of his witness statement). During his evidence he said that the Claimant had well understood the breadth of his role, which was reflected by his own personal announcement on a Roomsbooked proforma [261]; “Just as a way of a quick introduction I have recently joined ClarkeHoldings Ltd as Health and safety Manager covering off training and assessment for the company brands [emphasis added] and venues/establishments & projects.” Mr McCann’s statement echoed that evidence too. As the previous postholder, he had had that same, broad responsibility across the group.5.20 An Employee Handbook also existed [245-266] which contained the most important company policies and procedures. The Claimant said that he had no sight of the Handbook until February 2022 and that the policies had not been generally available in the office or on the IT systems. I accepted the Second Respondent’s evidence on the issue however; that the Claimant had inducted at least 50 members of staff (self-employed workers or employees) during his time with the business and would have drawn their attention to the Handbook as an essential part of each induction. It was inconceivable that he would not have known about its contents. Disability5.21 The Claimant’s disabilities had been described within his witness statement (paragraph 12) and his previous disability impact statement [46-9].5.22 Only a few documents relating to his Long Covid appeared within the bundle, R1. Although the disability was admitted, it was still necessary for him to have demonstrated that the unfavourable treatment under s. 15 had arisen from it and/or its effects and that the PCPs under s. 20, had caused him a substantial disadvantage.5.23 There was a GP’s letter dated 21 July 2022 which indicated that, as a result of the development of a severe Covid 19 infection, he had been admitted to hospital between 17 and 23 August 2021 for respiratory support and antiviral treatment. He subsequently developed pneumonia and a pulmonary embolism which caused scarring to his lungs, shown on a CT scan. Although the scarring had recovered to some extent, the embolism required him to take anti-coagulant medication and he was then described as having “ongoing debilitating symptoms of fatigue, breathlessness, arthralgia, loss of mental clarity and mobility difficulties” as a result of his continuing symptoms [1208].5.24 In a further letter dated 11 August 2022, Dr Tilson repeated that opinion, but added a view in relation to him meeting the definition of disability under the Equality Act. It was said that the illness had had a substantial negative impact upon his ability to carry out normal day-to-day activities [1209-10].5.25 By April 2023, his condition had settled to the extent described in his impact statement; he was still taking blood thinning medication, drugs to help him to sleep and other painkilling medication. He continued to suffer from chronic fatigue which impacted upon many aspects of his daily life. He remained weak, breathless and suffered joint pain. He did not expect his condition to improve, despite the fact that the physical damage to his lungs had receded.5.26 In relation to his vision, he had lost the vision in his right eye when he was 16 years old. He said that he had begun to suffer difficulties in his left eye towards the end of 2021 and was struggling to read from then on. Further investigations followed and he was told that he had had experienced an occlusion within the eye. He underwent an operation in 2023, after the end of his employment, which resulted in a bout of very poor vision initially. No medical evidence was produced in relation to that issue. It was not asserted that the issue had impacted upon his ability to do his job up to August 2021, when his absence had begun. The Claimant’s employment prior to his sickness absence5.27 Not long after the start of the Claimant’s employment, a new Health and Safety Policy was produced [267]. It contained broad statements of intention with regard to compliance with health and safety principles and regulations and in respect of the training of employees in such matters. The Respondents alleged that the Policy was not broadly disseminated to the workforce and those who were allocated health and safety responsibilities by the Claimant “were totally unaware of the document” (paragraph 15 of the Second Respondent’s statement).5.28 In October 2020, an organisational list of responsibilities was generated which showed that the Second Respondent held the ultimate responsibility for health and safety issues within the business, but that “the day-to-day responsibility for ensuring this policy [the Health and Safety Policy] is put into practice is delegated to..” the Claimant [269].5.29 Further, as stated above, a specific Fire Safety Management Structure existed which identified the Claimant as having responsibility for the creation and review of fire safety risk assessments and Fire Safety Management Plans [348].5.30 The Respondents alleged that the Claimant fell along a long way short of what was required from him in his role, but that they did not appreciate that until his sickness absence started in August 2021 (addressed below). The Claimant’s sickness absence and Health and Safety investigations5.31 The Claimant commenced a period of sickness absence on 7 August 2021 as a result of a coronavirus infection. He was admitted to hospital on 17 August where he was treated for a pulmonary embolism and pneumonia. He was discharged at the end of the month.5.32 Ms Porter was in contact with him initially over his sick notes but, because he had been hospitalised and it was expected that he would have taken time to recover, she indicated that she would try to “leave him in peace” [444]. He did not object [472]. She made contact again in October to chase a fit note and he updated her on his condition [512-4]. He did so again in early November and indicated a possible return to work on the 22nd, but that date was pushed back indefinitely, despite his apparent desire to return [546-8].5.33 In the meantime, the Respondents alleged that they became aware of “numerous severe health and safety concerns” at one of its hotels in August or September 2021, the Central Hotel in Cheltenham (paragraph 16 of its Response). Initially, it was found that no site specific Fire Evacuation Plan existed but, when they dug more deeply, they discovered that the PAT, gas, electricity, fire extinguisher and legionella tests were all out of date and that there were numerous other issues concerning training, the fire log book, COSHH sheets and similar (paragraph 27 of the Second Respondent’s statement).5.34 That prompted a broader analysis of the Claimant’s work. The Second Respondent said that “it came as a complete shock to us that not much had been done by Rob” (paragraph 23 of his statement). A search was made for relevant paperwork, without success. The worst of the concerns which were subsequently put to the Claimant were as follows;[1]Failure to undertake appropriate fire extinguisher maintenance and testing in breach of the Fire Extinguisher Regulations, forming part of the Regulatory Reform (Fire Safety) Order 2005. Some extinguishers were found with ties which secured their safety pins which would not have been easy to remove without a tool in the event of fire. They were therefore considered unfit for purpose;[2]Failure to tailor a Fire Evacuation Plan to the premises. The plan that was being used was a downloaded template and was not bespoke and/or tailored to the premises;[3]Harassment of two female members of staff on 29 January 2022 whilst intoxicated;[4]Failure to undertake a Legionella Risk Assessment in breach of the HSE’s for the control of such bacteria;[5]Failure to devote his time to his employment, indicated by the presence of a Risk Assessment for premises other than those owned/run by the First Respondent on his desk (Cheltenham Town FC) and advertisements for other business activities on another commercial website;[6]Failure to undertake proper audits, risk assessments, testing and inspections at the Doncaster International Hotel. 5.35 The Second Respondent systematically visited each hotel to rectify the work. He decided to close the Doncaster International Hotel for a week in August 2021 so that all of the faults could have been sorted out by him and the team who he took up with him. 5.36 In Gloucestershire, a positive Legionella result was produced at the Oakwood Hotel and that had to be closed between 13 and 20 October 2021 with a resultant loss of revenue. The Second Respondent implemented a program for the control of the bacteria which, he claimed, ought to have been implemented by the Claimant as part of his responsibilities before his absence [422-4]. 5.37 The evidence in relation to these alleged failures has been set out in more detail below. Procedures leading to the Claimant’s dismissal 5.38 In early 2022, the Claimant updated Ms Porter again about his condition and indicated that he was due to have a CT scan at the end of January and hoped that that would have been “the end of it [his absence]” [574-5]. 5.39 Before 12 January 2022, Ms Porter contacted ACAS for help over the position with the Claimant’s continuing illness absence. Following advice, a letter was written in the following terms (dated 11 January, attached to the email on an ACAS template (‘Form C-05’ shown at the bottom)) [576-7]; “I am writing to tell you that Castle Construction (Cheltenham) Limited is considering dismissal action against you. This action is being considered with regard to the following circumstances: Capabilty [sic.] to carry out Health & Safety in the workplace. You are invited to attend a disciplinary meeting on 13th January 2022 at 10.30pm which is to be held by telephone where this will be discussed.” 5.40 The Respondents alleged that the meeting was to have been “a welfare meeting to establish the Claimant’s ability to return to work” (paragraph 10 of the response [28]), but it nevertheless informed him that it may also have resulted in his dismissal. It was accepted that the letter had been incorrectly worded. 5.41 The Claimant replied to the invitation on 13 January and stated that he did not have sufficient time to seek advice or assistance. He asked for the Respondents to request a medical report from his GP and/or to obtain an OH assessment [584-5]. Ms Porter said in evidence that she did not feel that any of those steps had been necessary at that stage. This was to have been an informal welfare meeting. 5.42 An offer was made to re-schedule the meeting for 17 January [578] but the Claimant returned with times on either the 24th, 25th or 26th [591]. 5.43 On 27 January, the Claimant written to again, but this time in different terms; the invitation was re-framed and clearly indicated that there was to have been “an informal welfare meeting” to establish the nature and extent of his illness and to discuss ways in which he might have been supported [598]. He was signposted to the Respondent’s Employee Assistance Programme. 5.44 The meeting took place on 4 February by telephone and was subsequently transcribed [611-2]. The Claimant stated that he then continued to feel fatigued, achy and ‘generally rubbish’. He was asked if he could return to work on a phased basis, but he did not have a return to work date. He was awaiting a further scan and he promised to keep Ms Porter updated with regard to an anticipated consultant’s consultation. He was asked if there was any other support that he could have been provided with and/or reasonable adjustments to aid his return, for example, lighter duties. He did not identify any, beyond being updated as to what had gone on in his absence regarding health and safety issues and any new starters or leavers. There was no discussion about his continuing employment and the implications of his further absence. He stated that he was “desperate to get back to work”, but Ms Porter did not pressure him to do so. No sanctions were discussed. A polite exchange of emails followed, which included the Claimant’s suggestion to hold a further meeting on 1 March [612-3]. 5.45 Up to this point, the interactions between the Claimant and Ms Porter on behalf of the First Respondent appeared to have been pleasant and cordial. The Claimant had not, for instance, reacted adversely to the clumsily drafted initial letter of 11 January. 5.46 Before that meeting had taken place, however, on 3 February, the First Respondent wrote to the Claimant about the conduct and performance matters which come to light since his absence had begun. He was asked to attend an investigatory meeting on 7 February which was to have been conducted by video conference by a consultant from Peninsula Face2Face [609-10]. That letter was sent and emailed but, rather oddly, the version which the Claimant received by email on 7 February was identical in all respects to the hard copy version except for the date. His was dated the 4th. 5.47 The explanation for the date change was innocuous; Ms Porter used a letter template which had automatic dating within it. She considered it likely that she had revisited the letter on the 4th for some reason before it was attached to the email of 7 February, so that it re-dated itself. All of the parties accepted, however, that a letter dated the 3rd and another dated 4th, in identical terms, arrived together on the 7th, one by email, one in the post. 5.48 The precipitant for this letter had been the Second Respondent’s email of 26 January to Ms Porter in which he had explained the scope of the Claimant’s role and catalogued his perceived shortcomings at length. He said that, as a result of his absence, he had become aware of the extent of the problems; “Boom, this is when we were smacked in the face with the realisation & suspicion that a) Rob didn’t have a clue about H&S & had lied in his interview b) we started to suspect that he hadn’t been doing any work hardly. This was due to no H&S being done.” [593-6] 5.49 The Second Respondent said to Ms Porter that he wanted the details forwarded to ‘the relevant person’ (i.e. someone from their independent outsourced employment consultancy, Peninsula, to look at). He said that he was happy to speak to them “regarding a dismissal proposal” which, he said in evidence, was a rather inelegant way of saying he was prepared for the disciplinary procedure to have been used. As a result, Ms Porter contacted a consultant from Peninsula and was assisted through the processes thereafter by them. 5.50 Mr Clark had been very keen to distance himself from the process. He had heard from others that the Claimant had been threatening ‘a tribunal’ and he wanted to keep the processes, as he put it, “110% impartial”. 5.51 Mr Harris, from Peninsula, then introduced himself to the Claimant by email on the morning of 7 February and supplied a link to the anticipated video call [614-5]. The Claimant did not reply to those emails, attend the meeting and/or provide reasons for his non-attendance. He did not reply until 7:13 pm, expressing surprise that there had been a meeting and that he was being chased by Mr Harris [624], that was despite the letter and email having arrived earlier in the day. His surprise then was disingenuous. 5.52 On 9 February, the Claimant then wrote a long email to Ms Porter in which he asked for a copy of his job description and contract. He also asked for a copy of the grievance and disciplinary procedures and an explanation as to why the welfare meeting on 4 February appeared to have “escalated somewhat”. He requested communications to be sent to him by post and copied on email [645-6]. 5.53 He was given two more dates for the re-scheduled investigatory meeting, neither of which he said he could attend [637-8]. He was then provided with a further opportunity to attend a meeting with Mr Harris on 11 February and warned that the investigation may have proceeded without his input if her failed to attend [636-7], but he declined. The investigation therefore proceeded without his involvement. 5.54 Mr Harris’ investigation report was dated 15 February 2022 [668-682]. He found that there was evidence to suggest that the Claimant had failed to comply with health and safety regulations and that members of the public and the group’s employees had been exposed to the risk of harm (see above). The details of the findings have been addressed below. 5.55 The Claimant was written to on 15 February and informed that a disciplinary hearing was the take place by video in the afternoon of the 17th. The letter was sent by recorded delivery and email on the 16th [683-6]. The Claimant was informed that he would have subsequently received a copy of the transcript of the recording. He was provided with a right of representation and warned that dismissal might have resulted. He was also provided with Mr. Harris’ report and evidence. 5.56 It was unrealistic to have expected the Claimant to have digested the evidence and then attend a meeting to discuss it the following day. Not surprisingly, the Claimant characterised it as having been unreasonable. 5.57 Later that day, he indicated that he would not be able to attend on the 17th, due to his health [690]. The meeting was therefore re-scheduled for 22 February on the same basis as before [687] but the Claimant indicated that he would have preferred it to have taken place face to face. He was uncomfortable with the idea of it having been video or audio recorded. He suggested a neutral venue in Gloucester. 5.58 On 18 February, the Claimant was told that the meeting could take place face to face, but that it would still go ahead at the Respondent’s premises. Another external consultant from Peninsula was to have conducted it [696]. 5.59 Later on 18 February, the Claimant raised two grievances [700-1] and asked that the Respondent “confirm the postponement of the disciplinary meeting”, which was agreed in accordance with its grievance procedure [260]. In the grievance, he complained about the lack of support and contact which he had received from his employer during his hospital admission and illness, the decision to escalate to a disciplinary meeting after the welfare meeting on 4 February, the failure to provide suitable time for him to prepare for such a meeting and the failure to obtain any GP or OH advice. He also said; “I'm more than happy for the whole process to go legal or to a tribunal as I am being supported by a professional body I have been a member of for a number of years and advice given today advised that the Companies actions fall foul of the Equality Act.” 5.60 He raised further matters on 20 February; complaints about alleged GDPR breaches [712-3]. 5.61 He was invited to a grievance hearing on 22 February, which was dealt with by another external consultant from Peninsula Face2Face, Ms Kubok. It was scheduled to take place in person, as he had requested [710-1]. Although the Claimant expressed initial reluctance, he did attend the Respondents’ premises at Milsom Street with a companion to assist him. The premises were then empty, in anticipation of their sale. He was given the opportunity to explain his grievances in more detail. The notes, over 55 pages, reflected a free ranging, lengthy conversation over many subjects, including the matters which he had raised [759-813]. The Second Respondent was also then interviewed [748-758]. 5.62 The Claimant raised further complaints and grievances after the meeting on 23, 24 (4 on that day) and 25 February ([815], [817-8] and [833-8]) in relation to alleged pension autoenrollment, GDPR breaches, the delayed provision of P60s and a failure to provide a contract and job description. Ms Porter wished to flush out all further matters and, on Friday 25 February, the Claimant was asked to bring all and every issue forward by 5:00 pm on Monday the 28th so that they could all have been investigated together [828]. He responded by saying that “unreasonable timescales and demands” were being placed upon him and that he was being ‘bullied’. He ‘reserved his right’ to bring further grievances at such times as he wished [833-4]. Nevertheless, after time had expired on 28 February, he sent an email in which he purported to summarise all of his outstanding grievances and complaints, which then came to 14, but he indicated that there were to have been more [846-7]. 5.63 The Claimant then purported to raise further grievances on 1 March; one about a prearranged welfare meeting that did not take place as scheduled [874] and a second about statements made by the Second Respondent in relation to his own alleged health and safety breaches and performance [875-6]. 5.64 Amongst all this, also on 1 March, the Claimant sent an email to Ms Porter suggesting that he had waited all day for a further welfare meeting [874] (see paragraph 5.44 above). Despite the numerous other emails running up to that day, and even in those on the day, no mention had been made of a time or method by which he proposed that such a meeting was to have taken place. The notion that he had genuinely expected a further welfare meeting to have occurred was hard to accept on the basis of the evidence as a whole. 5.65 The Claimant was provided with Ms Kubok’s grievance outcome on 3 March in an email which enclosed her 78 page report ([877] and [848-873]). All matters were dismissed, save for one issue (issue 3) which concerned the invitation that he had received to 12 January meeting which had failed to indicate that it was for welfare purposes, albeit that the subsequent, rearranged invite of 27 January had identified its purpose more clearly. 5.66 The Claimant replied to the grievance outcome at length in a number of emails, only one of which appeared to contain an appeal ([883-895] and [898-9]). 5.67 At that point, the focus reverted to the disciplinary process (although the Claimant continued to raise other grievances [900-7]). He was invited to a meeting on 8 March with Mr Cox from Peninsula Face2Face, by a letter dated the 4th [879-882]. The same 6 allegations were raised, as in paragraph 5.34 above, and the pack of evidence was provided. He was informed of his right of representation and warned again that one of the possible outcomes might have been dismissal. 5.68 In response to that letter, the Claimant made a number of demands, including “that all outstanding Grievances & Appeals will be addressed suitably & to my satisfaction as per ACAS guidance”. Yet further grievances were raised (for example, [901-2]). He also wanted all cameras and recording equipment in the building ‘deactivated’ before the meeting commenced and that all questions were presented to him in advance and for it to have been conducted at a different venue [895-6]. 5.69 On 7 March, Ms Porter had cause to write to the Claimant to express concern that members of its staff had been contacted by him and had themselves expressed concern about it (see paragraph 109 of the Second Respondent’s statement and [908]). Despite that letter, he visited the home of an ex-employee, Mr Taylor, on a Sunday afternoon, which caused Mr Taylor to raise a forceful complaint with the Second Respondent. It was believed that the Claimant had accessed his address from the company telephone which he had refused to return ([948] and [1243-1267]). The request for the Claimant not to visit Mr Taylor again was alleged to have been an act of victimisation [948]. 5.70 The Claimant was also written to separately once the GDPR issues had been explored with solicitors in relation to the First Respondent’s use of cameras [909]. 5.71 The Claimant attended the Respondent’s premises in Cheltenham as expected on 8 March with an advocate, Mr Waite. They declined to enter the building, however. It was asserted that the CCTV cameras created a GDPR breach. Mr Cox thought that it had been Mr Waite who had been particularly sensitive to the idea of having been captured on the cameras. The Claimant said that he began to experience a panic attack (paragraph 26 of his statement), but Mr Cox remembered seeing no outward signs of anxiety or stress, nor did he accept that the Claimant had raised it. 5.72 During his oral evidence, the Claimant said that he had not been concerned about the cameras in the common parts of the building but, rather, the one in the meeting room. When asked how he knew that such a camera existed and was operational, he accepted that Mr Cox had not told him and would not have known. He suggested, instead, that it had been clear from the invitation letter but, having looked at that again, it was not mentioned. He then said that he had known about it from his previous knowledge of the building. That was all rather unsatisfactory. If he had known that a camera was to have been operational in the meeting room and that that would have been unacceptable, why did he even attend the building only to not then enter it? 5.73 Mr Cox did not consider that his reason for declining to enter was reasonable, given that the cameras had been in place throughout his employment. The Claimant did, however, supply a lengthy, pre-prepared documentation [911-47] and it was agreed that he would then answer questions raised in writing by Mr Cox once he had digested the written material. The two folders that he supplied contained his grievances and appeals and, in the other, his responses to the 6 allegations. 5.74 Questions were duly raised in a letter dated 9 March. The Claimant was asked to reply by 5:00 pm on the 11th [949-955]. 5.75 Needless to say, not even that process was straightforward. The Claimant responded at 8:42 pm on Sunday 13 March and provided some answers and declined to answer others because they “maybe the subject of legal proceedings”. Mr Cox had also asked him about his need adjustments to the timescales within the various processes, to which Mr Cox simply referred him to the ACAS website (see paragraph 22 [984]). Some minutes later, he sent another email in which he raised some questions of his own (for example, he asked what qualifications Mr Clark had to cover in his absence) and went on to allege that Mr Cox’s communications had become ‘intimidating’ [962-3]. 5.76 On 14 March, the Claimant wrote to say that he had not refused to answer the questions, but that he had been advised “that any response from me might jeopardise any criminal investigation” [969-700]. In a later email that day, he requested that he might not be contacted in relation to Mr Cox’s investigation until after a further doctor’s appointment on 23 March, due to his health [967-8]. 5.77 He was therefore not notified of the disciplinary decision until that date [978- 9] when he was then supplied with a copy of Mr Cox’s report [980-1013]. It was found that the Claimant had failed to carry out tasks within his responsibility which had amounted to serious breaches of health and safety, resulting in his summary dismissal. Allegations 1, 2, 4 and 6 were upheld and 3 and 5 were dismissed (see paragraph 5.34 above). 5.78 The evidence and facts upon which the decision was taken in respect of those 4 allegations was, in summary, as follows; Allegation 1 (fire extinguisher maintenance and checks); The Second Respondent had found that fire extinguishers at the Oakwood Hotel, Gloucester were out of date, but had been signed by the Claimant, although he was not qualified to undertake their discharge and refill. Another was found to have been dated ‘2029’ ([596] and [1274-6]). On 27 January 2022, independent inspectors, A&E Fire & Security, tested and inspected 43 fire extinguishers at Oakwood [602-3]. Numerous faults were found; some cable ties had been used as tamper tags such that tools would have been required before the extinguishers could have been used, and others, which had been commissioned in 2011 and 2013, showed no signs of having undergone any tests and/or refills. The Claimant’s position appeared to have been that he had not been responsible for the faults found, that they were the responsibility of the Hotel’s management and/or that extinguishers had been moved from other locations to incriminate him (paragraphs 41 and 45 [988-990]). It was considered, however, that the issue fell squarely within his responsibility and that the Claimant had himself issued instructions about testing and maintenance (paragraphs 42 and 47 [989-991]). The failure was considered to have been extremely serious in that the delayed “use of the fire extinguisher could lead to severe or fatal injury in the event of an emergency” (paragraph 49 [991]). Allegation 2 (suitable Fire Evacuation Plan); A template Fire Evacuation Plan document had been downloaded for use at the Central Hotel which was generic, unspecific and had not been tailored to the property and much of it was blank [1399-1423]. It therefore served no practical purpose. The Second Respondent asserted in evidence that that document had been used for all hotels, with just the front page location changed. The Claimant’s case was that he had provided the draft, which had been found on the Respondent’s systems, to the Hotel’s management team “for them to review and add/amend the appropriate information” (paragraph 51 [993]). Mr Cox accepted that, whilst it was possible that the problem had been created before the Claimant took up his position, it was then his responsibility to have addressed and filled any compliance gaps whilst in post. When asked to address the matter during the investigation, he had declined to do so because he did not wish to prejudice any legal proceedings (paragraph 53 [993-4]). Allegation 4; (Legionella Risk Assessment); Oakwood Hotel had to be closed between 13 and 20 October 2021 due to the discovery of Legionella. The Respondents’ case was that Legionella testing was part of the Claimant’s role as it was clearly identified within his contract and associated documentation (paragraphs 42 [989] and 69 [1000]). The Claimant’s position was that he could not have been responsible for the outbreak whilst he had been on sick leave (paragraph 68 [1000]), but Mr Cox had been keen to understand what preventative steps had been taken, a question which he also refused to answer (paragraph 72 [1001]). No risk assessments, test results and/or records of such testing were uncovered during the investigation and it was concluded that they had probably not been undertaken (paragraphs 73-4 [1001]). Allegation 6 (audits, risk assessments, testing and inspections at the Doncaster International Hotel); It was alleged that this issue came to light when, soon after the Claimant’s sickness absence commenced, a government body had approached the Respondents with a view to leasing the Hotel. As part of the due diligence process, all health and safety documentation was reviewed and the omissions were then found. Doncaster Council visited the Hotel on 24 August 2021 and a number of health and safety issues were identified [507-11]; the absence of a Legionella risk assessment, the absence of lift maintenance in accordance with the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER), the absence of a risk assessment to include electrical equipment and the updating of COSHH sheets. The Second Respondent renewed the out-of-date risk assessment himself [445-471] and new documents were produced in October ([521-9] and [534-5]) and further training was undertaken ([530-3] and [544-7]), all of which Mr Barry assisted with. Ms Pitt had specifically asked the Claimant that staff in Doncaster be provided with fire safety training in August 2020. Her message asked for him to check that each site had the relevant safety documentation (paragraph 88 [1010]). The Claimant’s position was that Ms Pitt’s message did not shoulder him with responsibility for the shortcomings and that, because she held the management role, it was her responsibility (paragraph 89 [1010]). Mr Cox did not accept that argument, not only because of the ambit of the Claimant’s role, but also because of the explicit help that had been requested by Ms Pitt. 5.79 The Second Respondent was sent the Claimant’s appeal against the decision on 29 March (a letter dated the 26th [1014-6]). A further, more detailed version followed on the same day [1017-1024]. An extension was provided when he asked for time to submit further information. 5.80 At that point, the Claimant continued to hold a number of items of the First Respondent’s property, including a mobile phone. On 28 March, he returned the business cards and master key to one of the properties, but stated that the mobile phone “is being held by a legal representative for access by any investigating body” [1025]. On 30 March, he was asked to return all remaining property the following day [1026] more. Having failed to do so, he was told on 1 April that the police were to have been contacted [1027], which was confirmed a few days later ([1028-9] and [1058]) and the Claimant accepted that he was then contacted by PC Eggett (paragraph 32 of his witness statement). 5.81 During his evidence, the Claimant accepted that he still retained the phone, 3 years after his dismissal. It was returned during the hearing. 5.82 There was a great deal of correspondence over the arrangements for the appeal hearing. Again, the Claimant requested a face-to-face meeting at a neutral venue and, again, the Respondents stated that its own premises were suitable, that alternative arrangements would have incurred needless cost and that asking him to attend them was reasonable (for example, [1030]). 5.83 On 7 April, the Claimant not only repeated his concerns about the appeal, but stated that he wanted certain ‘questionnaires’ to have been put to several witnesses, with answers provided not less than 5 working days before the hearing. He also demanded “evidence to back up ANY statements” within the same timescale. He asked for the relevant disciplinary, grievance and appeals procedures, the name of the Respondent’s data controller, the Health and Safety at Work Act Statement and the Staff Privacy Notice [1035-7]. 5.84 Ultimately, on 8 April, because the Claimant was yet to indicate how he wished to proceed, the Second Respondent summarised the options which were available; a face-to-face meeting on site, a video hearing, a telephone hearing or written submissions. He was also told that questions that he presented to the chairman of the appeal would then be taken forward to any relevant witness [1039]. On the 11th, he was then given until 5:00 pm on the 13th to indicate how he wished to proceed, in default of which he was told that the appeal would have been considered on the basis of the information already to hand [1059]. 5.85 By 19 April, in lieu of anything further from the Claimant in relation to his appeal and it then having been nearly 3 weeks after the initial extension had expired, the Second Respondent indicated that the appeal would proceed on the basis of what it then had [1069]. A letter confirming the arrangements was then sent [1070-1]. 5.86 Communications were then exchanged over the venue and the arrangements, but the appeal hearing did go ahead on 25 April 2022 and was conducted by another external consultant from Peninsula, Mr Hindle [1078-1150]. The Claimant attended with a companion. At one point during the meeting, Mr Hindle had cause to leave the room to make a phone call. The Claimant was then seen to climb on a chair and place masking tape over the CCTV camera. 5.87 Mr Hindle ultimately rejected the appeal and provided his reasoning in a report dated 13 May 2022 [1178-1200]. 5.88 The Claimant’s conduct throughout these procedures had been, in my judgment, difficult, obstructive and uncooperative. His repeated grievances were so relentless that Ms Porter, who impressed me as a straightforward and plain spoken witness, had become distressed by his conduct. She was upset recalling that period when she gave her evidence. Post-dismissal discrimination 5.89 The Claimant complained about two acts of post-dismissal discrimination. The first, on 19 April, was addressed above (see paragraph 5.85 [1069]). 5.90 On 17 May, the Second Respondent wrote to the Claimant to invite him and his advocates throughout the process to a meeting in order to discuss “the costs to the company, due to your & your advocates actions” which had, he said, resulted in two hotel closures, the harassment of himself and other staff, certain criminal activity and the incurring of unnecessary costs, which were estimated to have been approximately £70,000 to £80,000. He was told that, if he did not agree to meet, the Second Respondent would have had “no other choice than to pursue this in the courts for the full costs” [1201-2]. The letter contained no references to the Claimant’s disabilities. Public interest disclosures and/or protected acts 5.91 The disclosures and protected acts relied upon was set out in paragraphs 4.1.1 and 8.1 of the List of Issues. The following further factual findings were made;(i) A disclosure to the Pensions Regulator about concerns with the automatic enrolment relating to himself and his colleagues on 10 February 2022 and then told the respondent that he had done so (paragraph 4.1.1.1); The disclosure was said to have been made to the Pensions Regulator on 10 February by way of the compilation of an online form. During the hearing, the Claimant disclosed a copy of the form and an email which confirmed receipt (C2); “I have been working at … since August 2020 and I have not been auto-enrolled despite meeting the requirement (£10k + earnings and aged between 22 and SPA). I do not believe that I am the only employee not to be enrolled…”. The Respondents did not see the submission, but they were told that he had made the report to the Regulator, by an email dated 10 February 2022 [647]. They alleged that this had been the first time that the Claimant had raised auto-enrolment during his employment (which he accepted in cross-examination) and that he had raised it then as a means of retaliating for what was the happening to him, it then having been 3 days after the conduct allegations had been put to him. There was other evidence which was relevant to this issue more broadly: When the Claimant and all other employees started work, their details were entered onto the Respondents’ Sage accounting system which automatically created the deduction of employer and employee contributions towards the pensions that they were autoenrolled into, according to Ms Porter. Auto-enrolment was by default. In October 2020, Ms Porter clearly recalled a conversation with the Claimant in which he stated that he did want to be in the pension scheme. She was therefore surprised by his email of 10 February [647]. She then checked the position regarding his pension and realised that no contributions had ever been made. There had been some sort of system error which she rectified immediately, despite the conversation 17 months earlier. All of the employer and employee contributions were paid and back-dated [599].(ii) Telephone calls to the fire service in Gloucester and Doncaster about safety concerns at the respondent’s premises, after receiving a pack of information from the Respondent on 16 February 2022 (4.1.1.2); The Claimant alleged that he spoke to Mr Thornton, a firefighter who he knew, who said that he would speak to somebody within Gloucestershire Fire Service about fire safety issues at some of the group’s sites. The Claimant then received a phone call from Mr Prentice at the Service later that day. In his witness statement, the Claimant said the following about their discussion (paragraph 18); “We discussed a number of issues including the maintenance of the properties and also of a construction worker living in the basement of a hotel which I feel is within an uninhabitable part of that building so therefore not safe.” The Claimant alleged that he also contacted Doncaster Fire Service, although he did not say when. He was told that he could not discuss any issues unless he was the ‘responsible person’ and, since he was not recorded as such in respect of the Doncaster International Hotel, the conversation could not proceed. He denied that those calls were also retaliatory acts. Although he had not been in work for several months, he said that he was reporting matters which had been disclosed to him within Mr Harris’ report.(iii) On 23 February the Claimant contacted Environmental Health and stated that Legionella had been found in two of the hotels according to the First Respondent (4.1.1.3); After the grievance hearing which occurred on 22 February 2022, the Claimant said that he had been exhausted upon his return home and had fallen asleep. He did not remember any of the following day because he had taken a sleeping tablet but, when he woke the next day (presumably, then, the 24th) he said that he then found “that I had written a note of a phone call I had made to Environment Health reporting an outbreak of Legionella at two hotels.” He could not say who he had spoken to, where they were based and/or what had been discussed during the telephone call (paragraph 19 of his witness statement). No further oral evidence was given on that issue other than to say his reference to ‘Environment Health’ related to such a department with a local authority.(iv) Informed the Respondent on 13 January 2022 that the Claimant should have been considered as disabled and that reasonable adjustments should have been put in place (8.1.1); The Claimant accepted in evidence that he did not then allege that the Respondents had been in breach of the Equality Act in his email of that date [584-5].(v) Informed the Respondent on 17 January 2022 that it should have considered the Equality Act when progressing disciplinary action (8.1.2); As with the one above, the Claimant accepted in evidence that this email contained no allegation that the Respondents had then been in breach of the Act [587]. It was an assertion that the Act applied to him and that its provisions ought to have been considered.(vi) Informed the Respondent on 7 February 2022 that it had no consideration for the Equality Act and that that was having an adverse impact on the Claimant’s wellbeing because of his disability and resulting complications (8.1.3); This email was the Claimant’s first response to an invitation to an investigatory meeting. It did not contain any allegation of noncompliance with the Equality Act [624].(vii) A grievance dated 18 February in which the Claimant explained that the Respondent’s actions had contravened the Equality Act (8.1.4); This email clearly contained allegations of breach of the Equality Act [700-1].(viii) Informed the Respondent on 13 March 2022 that in the operation of the disciplinary procedure had failed to provide any reasonable adjustments for the Claimant and was failing to properly take account for his health and mental wellbeing (8.1.5). Again, this email contained allegations of bullying [962-3] but it was, perhaps, not as obviously a complaint that there had been breaches of the Act as the one which followed on 14 March [967-8]. Comparators 5.92 The Claimant relied upon five named comparators in respect of his complaints of direct discrimination; Mr Barry, Mr Richardson, Ms Hutt, Ms Hudikova and Ms Gebing (paragraph 5.3 of the List of Issues). His witness statement contained no evidence whatsoever about their comparative treatment and/or circumstances. He asked no questions of Ms Gebing about such issues when she gave evidence. 6. Conclusions Public interest disclosure dismissal; relevant principles6.1 In accordance with the stepped approach recommended in the case of Williams-v-Michelle Brown UKEAT/0044/19/00, first, I had to determine whether there had been disclosures of ‘information’ or facts, which was not necessarily the same thing as a simple or bare allegation (see the cases of Geduld-v-Cavendish-Munro [2010] ICR 325 in light of the caution urged by the Court of Appeal in Kilraine-v-Wandsworth BC [2018] EWCA Civ 1346). An allegation could contain ‘information’. They were not mutually exclusive terms, but words that were too general and devoid of factual content capable of tending to show one of the factors listed in section 43B (1) would not generally be found to have amounted to ‘information’ under the section. The question was whether the words used had sufficient factual content and specificity to have tended to one or more of the matters contained within s. 43B (1)(a)-(f) (see, further, Simpson-v-Cantor Fitzgerald UKEAT/0016/18). Words that would otherwise have fallen short, could have been boosted by context or surrounding communications. For example, the words “you have failed to comply with health and safety requirements” might ordinarily fall short on their own, but cross the threshold if accompanied by a gesture of pointing at a specific hazard. The issue was a matter for objective analysis, subject to an evaluative judgment by the tribunal in light of all the circumstances.6.2 Next, I had to consider whether the disclosure indicated which obligation was in the Claimant’s mind when the disclosure was made such that the Respondent was given a broad indication of what was in issue (Western Union-v-Anastasiou UKEAT/0135/13/LA). A whistleblower did not have to have had the precise legal basis of the wrongdoing asserted in his mind before they were protected (Twist DX-v-Armes UKEAT/0030/20/JOJ).6.3 I also had to consider whether the Claimant had a reasonable belief that the information that he had disclosed had tended to show that the matters within s. 43B (1)(b) had been or were likely to have been covered at the time that any disclosure was made. To that extent, I had to assess the objective reasonableness of the Claimant's belief at the time that he held it (Babula-v-Waltham Forest College [2007] IRLR 3412, Korashi-v-Abertawe University Local Health Board [2012] IRLR 4 and Simpson, above). To that extent, it was a mixed objective and subjective test.6.4 ‘Likely’, in the context of its use in the sub-section, implied a higher threshold than the existence of a mere possibility or risk. The test was not met simply because a risk could have materialised (as in Kraus-v-Penna [2004] IRLR 260 EAT). Further, the belief in that context had to have been a belief about the information, not a doubt or an uncertainty (see Kraus above).6.5 ‘Breach of a legal obligation’ under s. 43B (1)(b) was a broad category and has been held to include tortious and/or statutory duties such as defamation (Ibrahim-v-HCA UKEAT/0105/18).6.6 Next, I had to consider whether the disclosures had been ‘in the public interest.’ In other words, whether the Claimant had held a reasonable belief that the disclosures had been made for that purpose. As to the assessment of that belief, I had to consider the objective reasonableness of the Claimant’s belief at the time that he possessed it (see Babula and Korashi above). That test required me to consider his personal circumstances and ask myself the question; was it reasonable for him to have believed that the disclosures were made in the public interest when they were made? It was therefore a mixed objective and subjective test.6.7 The ‘public interest’ was not defined as a concept within the Act, but the case of Chesterton-v-Normohamed [2017] IRLR 837 was of assistance. In it, Supperstone J decided that the public interest may have been limited to a small group of 100 or so employees (in that case, about 100 senior managers were potentially affected by the employer’s massaging of performance figures in relation to bonus). The Court of Appeal confirmed the decision and determined that it was the character of the information disclosed which was key, not the number of people apparently affected by the information disclosed. There was no absolute rule. Further, there was no need for the ‘public interest’ to have been the sole or predominant motive for the disclosure.6.8 As to the need to tie the concept to the reasonable belief of the worker; “The question for consideration under section 43B (1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest” (per Supperstone J in the EAT, paragraph 28).6.9 The position was to be compared with a disclosure which was made for purposes of self-interest only, as in Parsons-v-Airplus International Ltd UKEAT/0111/17).6.10 Finally, I had to determine whether the disclosures had been made to the right class of recipient. Here, the Claimant asserted that they had been made to his ‘employer’ within the meaning of section 43C (1)(a) and/or to ‘prescribed persons’, as defined in s. 43F and the Public Interest Disclosure (Prescribed Persons) Order 2014.6.11 The Claimant did not have two years' continuous employment and the burden was therefore on him to show jurisdiction and therefore to prove that the reason or, if more than one, the principal reason for the dismissal were the protected disclosures (Smith-v-Hayle Town Council [1978] ICR 996, CA and Tedeschi-v-Hosiden Besson Ltd EAT 959/95). It was a greater burden than the requirement to merely prove a prima facie case if he had a twoyear service under Kuzel-v-Roche [2008] IRLR 530; Ross-v-Eddie Stobart [2013] UKEAT/0068/13/RN.6.12 The relevant decision maker would needed to have known some of the detail of what had been raised by way of the disclosure(s) Nicol-v-World Travel and Tourism Council and others [2024] EAT 42 (paragraph 82); “For employers to be fixed with liability, therefore, they ought to know at least something about the substance of what has been made: that is, they ought to have some knowledge of what the employee is complaining or expressing concerns about.” Public interest disclosure dismissal; conclusions6.13 The Claimant relied upon the following disclosures; (i) To the Pensions Regulator about concerns with the automatic enrolment relating to himself and his colleagues in February 2022 and then told the respondent that he had done so (paragraph 4.1.1.1 of the List of Issues); The Pensions Regulator was a prescribed person under the Public Interest Disclosure (Prescribed Persons) Order 2014 and therefore met the definition under s. 43F. The on-line form (C2) was accepted by the Respondents to have been a public interest disclosure covering a perceived breach of a legal obligation in the public interest. Further, the Claimant’s notification to his employer that he had ‘whistleblown’ to the Regulator was also accepted as such [647]. It too contained the accusation that he “should have been enrolled” and that that obligation had been breached. It was not accepted that the disclosures had not been made in good faith. They were alleged to have been retaliatory acts for the disciplinary investigation, but that did not negate their protection under s. 43. The issue of bad faith was a potential issue relevant to remedy only under s. 49 (6A); (ii) Telephone calls to the fire service in Gloucester and Doncaster about safety concerns at the respondent's premises, after receiving a pack of information from the First Respondent on 16 February 2022 (4.1.1.2); Local fire authorities were not prescribed persons within the 2014 Order. These disclosures were not protected public interest disclosures; (iii) On 23 February the claimant contacted Environmental Health and stated that Legionella had been found in two of the hotels according to the First Respondent (4.1.1.3); A local authority was a prescribed person in so far as it had responsibility for the enforcement of health and safety legislation and the disclosure had related to matters which may have affected the health and safety of people at work (see the 2014 Order). Whilst it was possible that the Claimant’s disclosure may have fallen within that definition, the evidence within paragraph 19 of his witness statement was so vague as to make any firm findings on that issue impossible (see paragraph 5.91 (iii) above). It was unclear what had been said, to whom and/or when.6.14 As to the Claimant’s dismissal under s. 103A, there was no evidence to indicate that his whistleblowing disclosure on 10 February had been the cause of his dismissal. Although Mr Cox accepted that he had known about the disclosure, it had played no part in his decision making process. The Claimant did not suggest as much in cross examination. Further, it could not have been said that the disciplinary process had been commenced as a result of that disclosure; it had started as a result of the Second Respondent’s email to Ms Porter on 26 January which had only concerned his performance failings and her first email to the Claimant, which started the process, had also predated it.6.15 The Claimant had not shown that the reason or principal reason for his dismissal had been the public interest disclosure which had been demonstrated. Disability6.16 In relation to the Claimant’s Long Covid, it was clarified at the start of the hearing that the Respondents had admitted disability on the basis that, even though the Claimant had not had Covid for more than a year before he was dismissed, its effects were considered likely to have lasted for at least that long when the acts of discrimination were said to have occurred, between the beginning of 2022 and 23 March 2022.6.17 As to the Claimant’s other claimed disability, his poor vision, that was also accepted on the basis of the evidence referred to above (see paragraph 5.26). Direct discrimination; relevant principles6.18 Some of the Claimant’s claims were brought under s. 13 of the Equality Act 2010: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”6.19 The protected characteristic relied upon was disability and the comparison that had to be made under s. 13 was that which was set out within s. 23 (1): “On a comparison of cases for the purposes of sections 13, 14 or 19, there must be no material difference between the circumstances relating to each case.”6.20 The case was approached by applying the test in Igen-v-Wong [2005] EWCA Civ 142 to the Equality Act’s provisions concerning the burden of proof, s. 136 (2) and (3): “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”6.21 That was an analytical process, not an evidential one. In order to trigger the reversal of the burden, it needed to be shown by the Claimant, either directly or by reasonable inference, that a prohibited factor may or could have been the reason for the treatment alleged. It was not necessary to demonstrate that the only inference which could have been drawn was a discriminatory one (Pnaiser-v-NHS England [2016] IRLR 170). More than a difference in treatment or status and a difference in protected characteristic needed to be shown before the burden would shift. The evidence needed to have been of a different quality, but a claimant did not need to have to find positive evidence that the treatment had been on the alleged prohibited ground; evidence from which reasonable inferences could be drawn might suffice. Unreasonable treatment of itself was generally of little helpful relevance when considering the test. The treatment ought to have been connected to the protected characteristic. What I was looking for was whether there was evidence from which I could have concluded, either directly or by reasonable inference, that the Claimant had been treated less favourably than others not of his disability, because of his disability.6.22 The test within s. 136 encouraged me to ignore the Respondents’ explanation for any poor treatment until the second stage of the exercise. I was permitted to take into account its factual evidence at the first stage, but ignore explanations or evidence as to motive within it (see Madarassy-vNomura International plc [2007] EWCA Civ 33 and Osoba-v-Chief Constable of Hertfordshire [2013] EqLR 1072). At that second stage, the Respondents’ task would always have been somewhat dependent upon the strength of the inference that fell to be rebutted (Network Rail-v-GriffithsHenry [2006] IRLR 856, EAT).6.23 In situations where the burden did shift, a respondent needed to show that the treatment was “in no sense whatsoever” because of the protected characteristic (Igen). We needed to find cogent evidence in support of the Respondent’s non-discriminatory explanation for the treatment focussing, as suggested in Bennett-v-MiTAC Europe Ltd [2022] IRLR 25, on the mind of the putative discriminator.6.24 If clear findings of fact were made in relation to what had been allegedly discriminatory conduct, the reverse burden within the Act may have had little practical effect (per Lord Hope in Hewage-v-Grampian Health Board [2012] UKSC 37, at paragraph 32). When dealing with a multitude of discrimination allegations, a tribunal was permitted to go beyond the first stage of the burden of proof test and step back to look at the issue holistically and look at 'the reasons why' something happened (see Fraserv-Leicester University UKEAT/0155/13/DM). In Shamoon-v-Royal Ulster Constabulary [2003] UKHL 11, the House of Lords considered that, in an appropriate case, it might have been appropriate to consider ‘the reason why’ something happened first, in other words, before addressing the treatment itself.6.25 As to the treatment itself, it had to be remembered that the legislation did not protect against unfavourable treatment per se, but less favourable treatment. Whether the treatment was less favourable was an objective question. Unreasonable treatment could not, of itself, found an inference of discrimination, but the worse the treatment, particularly if unexplained, the more possible it may have been for such an inference to have been drawn (Law Society-v-Bahl [2004] EWCA Civ 1070). Direct discrimination; conclusions6.26 In broad terms, many of these complaints simply did not ‘work’ is complaints of direct discrimination. The Claimant had not been treated in the manner alleged because of the fact of his disabilities. There was no evidence that, had he not been disabled, he would have been treated differently.6.27 The individual acts of discrimination alleged were as follows; (i) Required the Claimant to attend meetings when he was unwell due to Long Covid; The Claimant was not required to attend meetings because he had been disabled; he was invited to an investigatory and disciplinary meeting because it was considered that he had committed acts of misconduct. He was invited to a grievance meeting because he had issued numerous grievances and he was invited to an appeal meeting because he had issued an appeal. Had he not been disabled, he would still have been invited to the meetings in the circumstances; (ii) Sent the Claimant a letter on 12 January 2022 saying that the Respondent was considering dismissal action against him; The letter of 12 January was sent to the Claimant because he had been absent from work for some time. Had he been absent for reasons unrelated to a disability, there is no reason to suppose that he would have been treated differently. What the Claimant was really complaining about, however, was the error in the wording of the letter, in that he was initially invited to a meeting in which his dismissal was to have been discussed. For two reasons, it could not have been said that that wording had been discriminatory. First, it had been written in error. Ms Porter accepted as much. It was not suggested to her in evidence that it had been written in that way because the Claimant had been disabled. Secondly, the meeting did not take place and the Claimant suffered no disadvantageous treatment. A welfare meeting was ultimately properly convened on 4 February; (iii) Commenced an investigation into the Claimant's conduct on 7 February 2022; There was no evidence to suggest that the investigation commenced because of the Claimant’s disabilities. It was launched because of the Second Respondent’s email of 26 January and the shortcomings which had been identified in the Claimant’s work since he had been absent; (iv) Required the Claimant to attend a dismissal hearing relating to misconduct on 16 February 2022; The same could have been said in respect of this allegation. The Claimant was required to attend the hearing because of the concerns which had been identified in Mr Harris’ report. The wording of this allegation suggested that the Claimant had been required to attend a hearing on 16 February. He was initially required to attend on 17 February, a timescale which was considered to have been unreasonable. That meeting, however, did not go ahead and no detriment was caused. It did not, in fact, proceed until 8 March. To the extent that the Claimant may have been alleging that the short timescale for the original hearing had been conceived because of his disabilities, there was no evidence to indicate that that had been the case; (v) Required the Claimant to attend a disciplinary hearing regarding misconduct on 8 March 2022; As in (iii) above, he had been required to attend the hearing because of the matters identified in Mr Harris’ report, not because of his disabilities; (vi) Dismissed the Claimant on 23 March 2022. As previously discussed, the Claimant was dismissed as a result of the matters set out in Mr Harris’ and, subsequently, Mr Cox’s report. He was not dismissed because he had Long Covid and/or poor vision. Had another, hypothetical employee been guilty of the same acts of misconduct who had not possessed the Claimant’s disabilities, it was probable that such a person would also have been dismissed. Discrimination arising from disability; relevant principles6.28 When considering a complaint under s. 15 of the Act, it had to be considered whether the employee was “treated unfavourably because of something arising in consequence of [his] disability”. There needed to have been, first, ‘something’ which arose in consequence of the disability, which was an objective question and, secondly, unfavourable treatment which was suffered because of that ‘something’ (Basildon and Thurrock NHS-vWeerasinghe UKEAT/0397/14). That second question was subjective, in the sense that it required an examination of the employer’s mind in order to establish whether the treatment had been by reason of its attitude or reaction to the ‘something’ (Dunn-v-Secretary of State for Justice [2019] IRLR 298, CA). Although an employer must have had knowledge (actual or imputed) of the disability, there was no requirement for it to have been aware that the relevant ‘something’ had arisen from the disability (City of York-v-Grosset 2018] IRLR 746, CA).6.29 Although there needed to have been some causal connection between the ‘something’ and the disability, it only needed to have been loose and there might have been several links in the causative chain (Hall-v-Chief Constable of West Yorkshire Police UKEAT/0057/15 and iForce Ltd-v-Wood UKEAT/0167/18/DA). It need not have been the only reason for the treatment; it must have been a significant cause, in the sense of ‘more than trivial’ (Pnaiser-v-NHS England [2016] IRLR 170 and Bodis-v-Lindfield Christian Care Home Ltd [2024] EAT 65), but the statutory wording (‘in consequence’) imported a looser test than ‘caused by’ (Sheikholeslami-vUniversity of Edinburgh UKEATS/0014/17 and Scott-v-Kenton Schools Academy Trust UKEAT/0031/19/DA).6.30 In IPC Media-v-Millar [2013] IRLR 707, the EAT stressed the need to focus upon the mind of the putative discriminator. Whether conscious or unconscious, the motive for the unfavourable treatment claim needed to have been “something arising in consequence of” the employee's disability.6.31 No comparator was needed. ‘Unfavourable’ treatment did not equate to ‘less favourable treatment’ or ‘detriment’. It had to be measured objectively and required a tribunal to consider whether a claimant had been subjected to something that was adverse rather than something that was beneficial. The test was not met simply because a claimant thought that the treatment could have been more advantageous (Williams-v-Trustees of Swansea University Pension and Assurance Scheme [2019] ICR 230, SC). The issues were approached applying the test in Igen-v-Wong [2005] EWCA Civ 142 as set out above.6.32 If the Claimant was able to demonstrate the essential elements of the test within s. 15 (1)(a), the Respondents had a defence if they could show that the treatment was “a proportionate means of achieving a legitimate aim”. (s.[15](1)(b)). Any approach to justification under the section required, therefore, the identification of an aim, an analysis as to whether it was ‘legitimate’ and the Respondents then demonstrating that the step taken had been a means of achieving it and that it had been proportionate (see Minis Childcare-v-Hilton-Webb [2024] EAT 108). 6.33 For the reasons set out below, although the Respondents advanced a case on justification, it did not need to have been determined. Discrimination arising from disability; conclusions 6.34 The Claimant made the following allegations under s. 15 (paragraph 6.1 of the List of Issues);(i) Sending a letter on 12 January 2022 stating that the Respondent was considering dismissal action; Whilst it was true that the Claimant had been invited to a meeting to discuss his long-term sickness absence, which arose from his Long Covid, the issue which the Claimant considered detrimental was the wording of the letter and the fact that it had referred to his possible dismissal. As stated above, the wording had not arisen from his disability. It was a mistake and Ms Porter’s poor attempt to reword an ACAS pro forma letter. Further and in any event, the meeting did not occur. It was reestablished under an appropriate, clearly worded letter and took place on 4 February in a cordial and supportive manner. So much so, in fact, that the Claimant asked for a repeat meeting to have taken place a month later;(ii) Conducting an investigation into conduct on 7 February 2022; There was no suggestion that any of the Claimant’s conduct had arisen from his disabilities. Accordingly, it could not have been said that that had been an act of discrimination arising from disability;(iii) Required the Claimant to attend a dismissal hearing relating to misconduct on 16 February 2022; As indicated above, this meeting did not occur as originally scheduled. Rather, it took place three weeks later, on 8 March. Although the shortened time scale for the original meeting had been unrealistic, there was no evidence to indicate that it had been set for a reason which had arisen from the Claimant’s condition of Long Covid;(iv) Required the Claimant to attend a disciplinary hearing regarding misconduct on 8 March 2022; Again, this requirement did not arise from the Claimant’s disability of Long Covid. He was required to attend because of his perceived misconduct;(v) Dismissed the Claimant on 23 March 2022. For the Claimant’s case to have succeeded under s.15 in that respect, he must have been alleging that his absence from work because of Long Covid had brought about the matters complained of. That was not accepted. The process which led to his dismissal started with the Second Respondent’s uncovering of numerous health and safety issues once the Claimant had been absent in August 2021. That had culminated in the email to Ms Porter of 26 January 2022, which made no mention of the Claimant’s disability and/or its effects. The welfare meeting which took place on 4 February was entirely separate and there was no question of any sanction or target having been imposed upon him in relation to his continuing absence then. The Claimant’s dismissal was not an act of discrimination which arose from his disability. Failure to make reasonable adjustments; relevant principles 6.35 In dealing with the claims under ss. 20 and 21 of the Act, I bore in mind the guidance in the case of Environment Agency-v-Rowan [2008] IRLR 20 in relation to the correct manner that the sections should have been approached. 6.36 First, I had to identify whether and to what extent the Respondents had applied a provisions, criteria and/or practices (the ‘PCPs’). Those words were to have been given their ordinary English meaning. They did not equate to ‘act’ or ‘decision’. In the context of defining a PCP, a ‘practice’ generally required a sense of continuum. Although it did not need to have been applied before or applied to everyone, a claimant had to demonstrate that it would have been applied or that it was capable of broad application. It was akin to an expectation which applied to other employees or was repeated (Ahmed-v-DWP [2022] EAT 107). A PCP connoted a state of affairs and one off, isolated acts relating to the Claimant alone were unlikely to satisfy that test unless they were capable of having had broad application (Nottingham City Transport-v-Harvey [2013] Eq LR 4, Gan Menachem Hendon Ltd-v-De Groen [2019] ICR 1023 and Ishola-v-Transport for London [2020] EWCA Civ 112). 6.37 In relation to the second limb of the test, it had to be remembered that a claimant needed to demonstrate that he was caused a substantial disadvantage when compared with those not disabled. It was not sufficient that the disadvantage was merely some disadvantage when viewed generally. It needed to have been one which was substantial when viewed in comparison with persons who were not disabled and that test was an objective one (Copal Castings-v-Hinton [2005] UKEAT 0903/04 and Sheikholeslami-v-University of Edinburgh [2018] 1090, EAT). 6.38 Further, in terms of the adjustments themselves, it was necessary for them to have been both reasonable and to have operated so as to have avoided the disadvantage. There did not have to have been a certainty that the disadvantage would have been removed or alleviated by the adjustment. A real prospect that it would have had that effect would have been sufficient (Romec-v-Rudham UKEAT/0067/07 and Leeds Teaching Hospital NHS Trust-v-Foster [2011] EqLR 1075). 6.39 It could have been reasonable for an employer to make an adjustment even if the claimant did not suggest it. That underlined the importance for an employer to consult with a claimant and make appropriate enquiries/assessments. However, at the stage when a claim was brought, it was incumbent upon a claimant to identify the adjustments which he says should reasonably have been made. That was made clear by the EAT in Project Management Institute-v-Latif (paragraphs 54 and 55): “54….The key point…is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is a [PCP] causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. 55. We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not.” 6.40 It was often difficult to see how policies, which caused all employees a disadvantage, might legitimately have provoked claims under s. 20 since adjustments to a policy to remove the substantial disadvantage would not have been particular to a claimant (Salford NHS Primary Care Trust-v-Smith [2011] Eq LR 1119). 6.41 Furthermore, the duty to make adjustments did not generally arise unless or until a claimant was able to return to work, although that was not always the case (Home Office-v-Collins [2005] EWCA Civ 598, NCH Scotland-vMcHugh [2006] UKEATS/0010/06 and London Underground Ltd-v-Vuoto [2009] UKEAT/0123/09, paragraphs 119-125). In Collins there was no evidence that the adjustments contended for would have aided the claimant’s return to work whereas, in Vuoto, a more positive view was expressed by OH in relation to the proposed changes and the claimant’s likely consequent return. What the cases demonstrated was that, in all such questions, the focus should always have been upon the extent to which the adjustment was likely to have overcome or alleviated the disadvantage suffered at work, assuming a likely return if the employee was actually absent. Returning to a trail period in a new role as an adjustment can, however, be covered (Rentokil Initial UK Ltd-v-Miller [2024] EAT 37). 6.42 I considered the statutory Code of Practice and, specifically, paragraph 6 relating to the duty under ss. 20 and 21. Failure to make reasonable adjustments; conclusions 6.43 Each of the alleged PCPs, the disadvantages and adjustments were considered together, although there appeared to have been a disjunct between them in some respects. It was noteworthy, also, that none of the complaints actually related to the Claimant’s work but, rather, his absence and the disciplinary and grievance procedures (see paragraph 6.41 above). 6.44 The PCPs (paragraph 7.2 of the List of Issues); (i) The disciplinary and grievance procedures (7.2.1); The policies, as set out in the Employee Handbook, constituted PCPs which were applied to the workforce generally [254-260]. The substantial disadvantages appeared to have been those in paragraphs 7.3.1 (a failure to participate effectively), 7.3.3 (anxiety about going into the workplace), 7.3.4 (an inability/opportunity to provide his side of the story) and 7.3.5 (and inability to comply with tight deadlines). In relation to the general proposition that the Claimant found the attendance at meetings difficult, he did attend the grievance and appeal hearings and spoke at both at length. He was prepared to attend the disciplinary hearing, but did not ultimately enter the building. All manner of alternatives were considered and offered; hearings by video, by telephone, in person and/or submissions in writing. As it was, a combination of those were used during both processes. On occasions when the Claimant did not engage face-to-face, for example at the disciplinary hearing, he provided a substantial amount of written material and agreed to answer some further questions in writing before a decision was taken. As a result of reasonable offers that were made for the processes to have been adapted for him, he therefore had a reasonable opportunity to engage and provide his evidence to Mr Harris, Mr Cox, Mr Hindle and Ms Kubok. As to the difficulty that he had in complying with short deadlines, it was accepted that the initial disciplinary hearing had been listed at very short notice, probably too short for any employee, let alone one with Long Covid. But that meeting did not go ahead. It did not take place for over three weeks, by which time the Claimant had prepared a substantial amount of written material in answer to the allegations. An extension of time was provided to him in respect of his appeal and the time limit that was imposed upon him in respect of his grievances was not unreasonable given the 14 which had already come forward and the Respondents’ desire to move that process forward whilst the disciplinary matters sat in abeyance. The Claimant asserted a particular anxiety about entering the Respondents’ buildings for meetings and asked for venues to have been hired elsewhere. There was no evidence upon which it could have been said that a meeting held at its premises would have caused him a substantial disadvantage because of either of his disabilities and, of course, he did attend such meetings on occasions. There was no evidence to indicate that his claimed anxiety was in emanation of his Long Covid and, to the extent that he believed that he had contracted Covid at work, the Respondents’ scheduling of meetings at the empty Milsom Street office was a reasonable adjustment to have alleviated such a concern. (ii) Not providing support to employees on sick leave (7.2.2); There was no evidence that such a PCP existed. The particular manner in which the Claimant’s absence was handled was particular to him and his condition and one which he had not objected to at the time (see paragraphs 5.32 and 5.38 above); (iii) Not providing employees with Occupational Health Assessments or gathering information from doctors whilst employees are off sick (7.2.3); Again, there was no evidence that OH assessments and/or GP opinions were not obtained in general terms for employees who were off sick. This was not a PCP. Further, these sorts of allegations did not amount to complaints under s. 20 unless or until it could have been said what practical differences might have resulted from a referral or opinion. A referral was not an adjustment; (iv) Requiring employees to attend hearings and meetings at work premises (7.2.4); Whilst this probably was a PCP which was applied to the Claimant and others, the issues around the substantial disadvantage that he may have suffered and/or the reasonable adjustments that were considered in the alternative, have already been considered in (i) above; (v) Requiring all hearings and grievance meetings to be recorded (7.2.5); It was not clear which of the substantial disadvantages within paragraph 7.3 were said to have emanated from this PCP. The recording of meetings ought to have been a positive advantage to both sides since an accurate record of the discussions was produced as a result. One might have thought that that would have been a particular advantage for someone with the Claimant’s disabilities;(vi) Requiring or allowing disciplinary proceedings to go ahead in the absence of the employee (7.2.6); It was only the disciplinary investigatory hearing that the Claimant did not attend and that proceeded in his absence. There was a requirement within the Employee Handbook for employees to make “every effort” to attend all meetings arranged [259]. There was no clear statement that, in default, the First Respondent adopted the practice of conducting meetings in an employee’s absence. Assuming, however, that such a PCP existed, the Claimant was offered four dates for the investigatory meeting, the last of which he declined. He had then been given a clear indication that the meeting would have proceeded in his absence. There was no clear indication why none of those dates had been suitable and therefore no evidence to indicate that the Claimant’s disabilities (he relied upon both for this purpose) had caused a substantial disadvantage. As stated above, he attended other meetings and engaged with the processes fully. Adjustments were offered to him and, of course, in respect of the disciplinary hearing, he agreed with Mr Cox to deal with it by way of written submissions and further questions and answers.(vii) Dismissing an employee without gathering the necessary evidence and speaking with the employee (7.2.7); This was not a PCP. Rather, it was an allegation of a one off detriment particular to the Claimant and his circumstances;(viii) Setting unmanageable deadlines to submit grievances (7.2.8); There was no evidence that such a PCP existed and/or was in broad operation. To the extent that the Claimant found it unmanageable to submit his grievances in time, he submitted 14 which were addressed by Ms Kubok, many of which were submitted in very quick succession between 18 and 25 February;(ix) Providing very short notice of grievance and disciplinary hearings (7.2.9); This issue has been addressed above (see (i) above). Victimisation; relevant principles 6.45 Some of the protected acts were disputed, but not all. 6.46 The wording of the legislation did not require an allegation under s. 27 (2)(d) to have been expressly made, as was recognised by the Court of Appeal in Waters-v-Commissioner of the Police for the Metropolis [1997] IRLR 589 at [86] (concerning a claim brought under the old Sex Discrimination Act 1975): “The allegation relied on need not state explicitly that an act of discrimination has occurred – that is clear from the words in brackets in s 4(1)(d). All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer…” 6.47 The Respondents did dispute the allegations that the Claimant had been subjected to detrimental treatment because of any protected acts. The test of causation under s. 27 was similar to that under s. 13 in that it required a consideration of whether the Claimant has been victimised ‘because’ he had done a protected act, but the ‘but for’ test was not to have been applied (Chief Constable of Greater Manchester Constabulary-v-Bailey [2017] EWCA Civ 425); the act had to have been an effective cause of the detriment, but it did not have to have been the principal cause. The most recent formulation of the test, in Warburton-v-Chief Constable of Northamptonshire Police [2022] EAT 42, stressed the need to focus upon the ‘reason why’ question and consider whether the protected act(s) had been, at the very least, a significant influence on the detriment. It had to have been the act itself that caused the treatment complained of, not issues surrounding it. 6.48 In Martin-v-Devonshire Solicitors [2011] ICR 352, a claim of victimisation failed because the motivation for the unfavourable treatment had not been the fact of the Claimant’s complaints, but the way in which they had been made. The Claimant had been dismissed as a result of an irretrievable breakdown in the working relationship between her and her employers. The Tribunal dismissed her claims, holding that there were several things about the Claimant's behaviour in relation to her grievances (their frequency, repetitive nature and untruthful) which affected the employer's view and which owed nothing to the fact that the grievances had raised allegations of sex and disability discrimination. Having reviewed the law in this area the then President of the EAT, Underhill J, encouraged tribunals to concentrate upon the statutory language on causation (in the context of this case, the word ‘because’) and he referred back to Lord Nicholls’ test in Nagarajan-vLondon Regional Transport [1999] ICR 877; “whether the prescribed ground or protected act ‘had a significant influence on the outcome’” (paragraph 36). 6.49 In the further case of Woodhouse-v-West North West Homes Leeds Ltd [2013] UKEAT/0007/12, the EAT countenanced against using the case of Martin “as a template into which to fit the factual aspects of a case in which victimisation was alleged.” It was said that the circumstances in that case had been exceptional and that tribunals needed “to be cautious about regarding features such as a multiplicity of grievances and obsessive overreaction by an employee as exceptional”. The EAT (His Honour Judge Hand QC presiding) referred back to paragraph 23 of the decision in Martin in which the Tribunal's finding in respect of the reason for dismissal had been dealt with. Within paragraph 98 of its own decision, the EAT then clearly accepted that an employee’s conduct or behaviour might be a reason to separate (or stand between) the conduct complained of and the protected act. 6.50 In order to succeed under s. 27, a claimant therefore needed to have shown two things; that he was subjected to a detriment and, secondly, that it was because of the protected act(s). The ‘shifting’ burden of proof under s. 136 was applied to that test as well. Victimisation; conclusions 6.51 The protected acts were dealt with between paragraphs 5.91 (iv) and (viii) above. Those within (iv), (v) and (vi) (8.1.1, 8.1.2 and 8.1.3) did not amount to protected acts because it was accepted that no breaches of the Equality Act had been alleged nor were facts asserted which might amounted to a breach, but those in (vii) and (viii) (8.1.4 and 8.1.5) were conceded. As stated above and being generous to the Claimant, the act in 8.1.5 was, perhaps, better viewed as having been performed within the email of 14 March [967-8]. 6.52 The Claimant alleged that he suffered the following detriments (8.2.1 to 8.2.5); (i) Required him to adhere to unmanageable time limits; There was no evidence to suggest that any of the timescales set for any of the meetings had been set because of the Claimant’s grievance of 18 February and/or his subsequent assertions of discrimination in March. He asserted that unmanageable time limits had been imposed before those protected acts; (ii) Refused to allow meetings and hearing to take place at a neutral venue; Again, there was no evidence that the Respondents’ refusal to arrange meetings at an alternative venue was a decision taken on the basis of the protected acts. As was clearly set out in the correspondence, it was not considered reasonable or necessary to have hired a venue when there were suitable venues at its disposal, particularly the empty premises at Milsom Street; (iii) Failed to properly conclude the grievance process and fail to investigate all elements of the grievance; This allegation was somewhat counterintuitive since the Claimant was asserting that, because he had issued grievances, all elements of them were not properly investigated. To the extent that any elements were not investigated, this was undoubtedly because the Claimant had issued a great many grievances such Ms Porter attempted to draw a line under them to stop them coming and so that they could have been handed to Peninsula to investigate. Despite the cut off which she imposed, not unreasonably in my judgment, further grievances came forward. To the extent that they were not separately considered, it was because matters had moved back to the disciplinary process once Ms Kubok had reported on those which the Claimant had brought forward before the line had been drawn; (iv) Failed to contact the Claimant's GP or medical records or to refer for an Occupational Health assessment; Ms Porter’s decision not to contact the Claimant’s GP or obtain an OH assessment was not motivated by the protected acts, nor was that suggested to her in cross-examination. The Claimant had first suggested that such evidence be obtained on 13 January [584-5]. His first protected act was not committed until a month later; (v) Write to the Claimant on 9 March 2022 to inform him that he was not allowed to contact or attempt to contact any employees or former employees of the Respondent regarding the ongoing matters; The letter of 9 March [948] had not been written because the Claimant had committed protected acts but, rather, because Mr Taylor had raised specific complaints about his conduct (see paragraph 5.69 above). Post-employment discrimination 6.53 Finally, in paragraph 9 of the List of Issues, there were two allegations of post-employment discrimination. It was not alleged what type of discrimination that had been, whether direct, discrimination arising from disability, vistimisation or otherwise. 6.54 Section 108 prohibited discrimination in circumstances where it arose from, or was closely connected to, a relationship which used to exist between the parties. The Respondents did not assert that the Claimant was not covered by this section on that basis. 6.55 The two allegations were as follows; (i) The Respondent email the Claimant on 19 April 2022 to state that (i) the deadline was overdue (ii) that he was "now making it very clear'' and (iii) that if the claimant did not attend the meeting it would be concluded by written submission? The Claimant had been given an extension of time to set out the grounds of his appeal, which he initially launched on 26 March [1014- 6]. This email was written three weeks later and was an attempt, yet again, to clarify the Respondents’ stance in relation to his many requests and objections in respect of the appeal hearing [1069]. It was not written because the Claimant was disabled (s. 13), for a reason which arose from it (s. 15) or because he had committed protected acts. Rather, it was written in an attempt to clarify the appeal process and ensure that it proceeded on a basis that had been made clear to him; (ii) Emailed the Claimant on 17 May 2022 threatening him with costs and disciplinary action? The email of 17 May [1201-2] reflected a degree exasperation and anger on the part of the Second Respondent about the manner in which the Claimant had conducted himself at work before his illness and through the disciplinary and grievance procedures. It was not, in my judgment, exasperation because the Claimant had been disabled or because of matters which arose from those disabilities. It might have been alleged that it had been influenced by the fact that he had committed protected acts and therefore had been an act of vistimisation, but Mr Clark was not cross-examined to that effect. In any event, he had not been concerned about the fact that the Claimant had alleged that there had been a breach of the Equality Act. He clearly identified the matters which had concerned him, beyond his perceived costly failings at work; perceived harassment of Mr Clark and other employees of the group, possible damage to CCTV, health and safety and security devices and tampering with firefighting equipment. None of those were protected acts. Might it have been possible, on a generous reading, to have considered Mr Clark’s reference to ‘harassment’ to have included the grievances that he had issued which included, in part, the protected acts? Although that was never argued, if Mr Clark’s claim of harassment, in that context, undoubtedly referred to the frequency and extent of the grievances. It was their sheer volume and number which Ms Porter had considered to have been harassing. The complaint, therefore, was not about the small proportion of Equality Act content but, rather, the manner in which he had conducted himself in the Martin-v-Devonshires sense. It was not victimisation. Time limits 6.56 The claim form was presented on 7 June 2022. The Claimant commenced the Early Conciliation process with ACAS on 16 May 2022 (Day A). The Early Conciliation Certificate was issued on 6 June 2022 (Day B). Accordingly, any act or omission which took place before 16 February 2022 (which allowed for any extension under the Early Conciliation provisions) was potentially out of time. 6.57 It was accepted that the only matters which fell outside the relevant date were those in paragraph 5.2.2, 5.2.3,6.1.1 and6.1.2 of the List of Issues. Some of the other allegations were not specifically dated and could have related to events which occurred before 16 February, but Mr Ramsbottom acknowledged that, had the claims succeeded, they were very likely to have been regarded as part of the same conduct extending over the whole period for the purposes of s. 123. 6.58 In light of the other findings set out above, no determination of these issues was necessary.