Mr Michael Blakeborough v John Lewis plc: 1402700/2018 and 1403759/2018
EMPLOYMENT TRIBUNALS
Case No 1402700/2018, 1403759/2018
Between
Mr Michael BlakeboroughClaimantJohn Lewis plcRespondent
Before
Employment Judge Street, Mr E Bees, Mr H AdamsDate 13 September 2019
REASONS
[1]Judgment 1.1. The Judgment of the Tribunal was that Mr Blakeborough succeeded in claims of direct discrimination in respect of the events of 9 February 2018 and 20 June 2018 and in his claim of unfair constructive dismissal. 1.2. The claimant’s remaining claims of direct discrimination, of harassment and victimisation and failure to make reasonable adjustments were dismissed.[2]Evidence 2.1. The Tribunal heard from Mr Blakeborough, from Ms Griffiths-Lumb, and for the Respondent, from Mr Thomas Philip, Team Manager, from Ms Alice Clements, Branch Manager, from Mr Simon Brumby, Head of Branch in Portishead, and grievance manager and from Ms Gray, Appeals Manager. 2.2. The Tribunal read the documents in the bundle referred to.[3]Issues 3.1. The claimant brought claims of unfair constructive dismissal, of direct disability discrimination and a failure to make reasonable adjustments, harassment and victimisation. 3.2. The issues before the Tribunal to decide were agreed as follows, not including those limited to remedy. Jurisdiction[1]Are the acts complained of by the Claimant part of a continuing act within the meaning of section 123 (3)(a) Equality Act 2010 ("EA 2010")?[2]If so, what was the date of that last series of acts?[3]Has the Claimant brought his complaints under the EA 2010 within the threemonth time limit (s123 (1)(a) EA 2010)?[4]If not, would it be just and equitable for the Tribunal to extend time (s123 (1)(b) EA 2010)?[5]The Respondent contends that any alleged acts of discrimination relied upon by the Claimant that took place more than three months prior to 11 June 2018 are out of time. Disability Discrimination[6]The Respondent accepts that the Claimant was disabled by reason of his anxiety and depression within the meaning of section 6 (1) EA 2010 at the time of the alleged discriminatory treatment.[7]Did the Respondent know, or could it reasonably have been expected to know, at the time of the alleged discriminatory treatment that the Claimant was disabled by reason of his anxiety and depression?[8]The Respondent contends that it did not know, and could not reasonably have been expected to know, that C was disabled at the material time. Direct discrimination – (s. 13 EA 2010)[9]The Claimant relies on the following treatment:a. Acts by Tom Phillip on 30 November 2017;(i) Summonsing the Claimant aggressively by tannoy;(ii) Belittling the Claimant in front of colleagues and customers;(iii) Being unnecessarily angry with the Claimant;(iv) Aggressively holding items in front of the Claimant’s face in a way that someone might rebuke a child;(v) Speaking over the Claimant, preventing him from defending himself;(vi) Failing to heed the Claimant’s requests for him to stop;(vii) Following the Claimant telling him that he was not okay, gesticulating to the products and telling that the Claimant that they, not him, was his problem;(viii) In the Partner Dining Room, preventing others from assisting the Claimant;(ix) Imposed himself upon the Claimant such that he had to pretend that he was okay and was then able to leave his presence.b. The decision of Simon Brumby to reject the Claimant’s grievance on or around 9 February 2018;c. The decision of Ruth Gray to reject the Claimant’s appeal against the decision of Simon Brumby on or around 8 June 2018;d. The decision by Alice Clements to hold a meeting with the Claimant on 8 August 2018, which the Claimant contends was “an attempt to scare him away from pursuing legal action, using his generalised anxiety disorder as a tool to harm him.” (The date has since been corrected to 20/08/18)[10]Did these acts or omissions amount to less favourable treatment (by reference to a hypothetical non-disabled comparator) whose circumstances are not materially different to the Claimant’s?[11]Has the Claimant proved primary facts from which the Tribunal could conclude that the Respondent has directly discriminated against the Claimant because of his disability?[12]If so, has the Respondent proved that the treatment was for a non-discriminatory reason? Failure to make reasonable adjustments - (s. 21 EA 2010)[13]The Claimant relies on the following provisions, criteria or practices (“PCPs”):a. To work a shift pattern which caused him to be in contact with the protagonist who caused/exacerbated his disability;b. Failing to allow flexibility in the shift pattern to avoid the Claimant meeting Mr Philip at work.[14]Did the Respondent apply these PCPs to the Claimant?[15]If yes, did these PCPs place the Claimant at a substantial disadvantage when compared with people who did not have the Claimant's disability?[16]Did the Respondent know, or could it reasonably have been expected to know, that these PCPs placed or were likely to place the Claimant at the substantial disadvantage in question?[17]Would it have been reasonable for the Respondent to take steps in order to avoid the substantial disadvantage in question? The Claimant contends the following adjustments should have been made and maintained (and were not): a. That the Claimant be allowed to work on Sundays only, it being a day upon which Tom Phillip had said he did not wish to work. Harassment - (s. 26 EA 2010)[18]Did the Respondent engage in unwanted conduct? The Claimant relies on the following alleged unwanted conduct:a. Alleged unwanted conduct by Tom Phillip on 30 November 2017 (see paragraph 9 (a) above);b. Alleged unwanted conduct by Alice Clements on 8 (that is, 20) August 2018. The Claimant asserts that he was required to attend a meeting with Ms Clements and with a notetaker as a result of his attempt to secure witness evidence in support of his case. The Claimant was accused of having upset and/or frightened colleagues.[19]If the Respondent engaged in the above unwanted conduct, was the conduct related to the Claimant’s disability?[20]If yes, did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[21]If not, did the conduct have the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[22]Having regard to all the circumstances, should the Respondent’s conduct be reasonably considered as having that effect? Victimisation – (s. 27 EA 2010)[23]Did the Claimant do a protected act? The Claimant asserts that he committed 2 protected acts;(a) Bringing proceedings under the Act;(b) Issuing a grievance which contained allegations in respect of the Act.[24]Did the Respondent subject the Claimant to a detriment because he had done a protected act? The Claimant relies on the following treatment: a. The decision by Alice Clements to hold a meeting with the Claimant on 8 (20) August 2018, which the Claimant contends was “an attempt to scare him away from pursuing legal action, using his generalised anxiety disorder as a tool to harm him.” Constructive Unfair Dismissal – (s. 95 Employment Rights Act 1996)[25]The Claimant contends that the follow acts were breaches of the implied term of mutual trust and confidence:a. The matters set in paragraphs 9, 13-17 and 18 (b) above;b. Respondent failed to deal with bullying by Tom Phillip of the Claimant (by taking appropriate disciplinary action);c. The Respondent failed to assure the Claimant that Tom Phillip would not return to the Claimant’s workplace;d. Rejected the Claimant’s offer to reduce his working hours to avoid working at the same time as Tom Phillip;e. On 5 October 2018, rejecting the Claimant’s further request to avoid the overlap between him and Mr Phillip at work.[26]What was the reason for the Claimant’s resignation? Was it because of the matters set out at paragraph 25 above?[27]Did the matters at paragraph 25 constitute separately and/or cumulatively a fundamental breach of the express terms of the Claimant’s contract of employment?[28]In the alternative, did the matters at paragraph 25 constitute separately and/or cumulatively a fundamental breach of the implied term of trust and confidence?a. Was the conduct complained of calculated or likely to destroy or seriously damage the employer/employee relationship of trust and confidence?b. Did the Respondent have reasonable and proper cause for that conduct?[29]Has the Claimant delayed and therein affirmed his contract of employment? 4. Findings of Fact 4.1. Mr Blakeborough commenced employment with John Lewis plc on 4/05/11. Disability and Knowledge of disability 4.2. Mr Blakeborough has suffered a General Anxiety Disorder, leading to anxiety and depression, from the age of 18. He has had counselling. He has learned over the years to manage his symptoms. He is open about his condition. He moved from the Bath branch to Melksham because it was smaller, quieter and less pressured and so an easier environment for him to manage. He was happy there, on the whole, finding the staff supportive and a happy environment check his final letter. 4.3. All managers at Melksham were aware that Mr Blakeborough had mental health difficulties, pointing to a need to treat him in a calm and considered way without anger or aggression – as in fact all partners were entitled to be treated. (Nicola GriffithsLumb ws para 14, unchallenged) 4.4. On 18/08/16, a referral by manager to Partnership health service for anxiety and depression (87). At that time, he was encouraged to take care of his health overall and to avoid too much overtime, to maintain a life/work balance (91). A report was made to the employer. 4.5. There was an incident between Mr Blakeborough involving Mr Philip in either August 2016 or April 2017 (their accounts differ), when Mr Philip challenged Mr Blakeborough over a mistake in making a sale before formal Sunday opening hours, and Mr Blakeborough experienced an anxiety reaction. It is agreed that Mr Blakeborough spoke to Mr Philip directly about his health and the way it impacted his life and the Branch Manager at the time, Alex Usher-Bolton asked Mr Philip to bear in mind that Mr Blakeborough suffered from anxiety (Tom Philip ws para 7). 30/11/17 4.6. In November 2017, Mr Philip was working at the Melksham branch of Waitrose, where Mr Blakeborough also worked as an assistant. 4.7. On 30/11/17, Nicola Griffiths-Lumb, formerly the Partner Coordination Manager, conducted a performance discussion with Mr Blakeborough. There had been a discussion about grades at a managers’ grading calibration meeting. Mr Blakeborough had not been told the outcome, which was a drop from very good to good. He was frustrated at the downgrading and unsettled that this arose without warning about the deficiencies that led to it. With consent from Ms Griffiths-Lumb, he took an early break that evening. On his return he was dealing with product reductions for sale prior to closing. 4.8. Mr Philip was the manager on duty. He was unhappy over the content of the reduction trolley. Mr Blakeborough was in charge of reductions but had left the job with Vicky while he took his break. On his return, he collected a couple of meat packets that needed to be reduced and moved to the reduction bins. Mr Blakeborough says that he was aware of Mr Philip being concerned about the reduction bins – “I saw Tom Philip searching through the dump bins of reductions talking angrily to himself”. 4.9. There was a brief exchange of words, which Mr Blakeborough found made him anxious and nervous. He felt he was following guidance to make fewer reductions, to prevent automatic reordering and explained that – “Leanne’s plan”. He moved away until called back by Mr Philip over the tannoy. 4.10. Mr Philip’s account is this, “I was walking past the reduction bays on the shop floor which contain the products which are going out of date that day, and I noticed that the reduction bays were very full, more so than I would have expected at this time of the evening.... ..I noticed some cakes which were going out of date that day that hadn’t been reduced appropriately… I was concerned that, as there was not long left until 8pm when the branch was due to close, if the products were not reduced properly, customers might not buy them and then we would have to waste them and the branch would lose money. I asked Mike where he was up to with his reductions and I asked him whether he needed any help. Mike then immediately starting shouting at me. Mike said that he didn’t like the way I was speaking to him and he threatened to hand in his notice. He asked me whether I wanted to give him a disciplinary and I said that this was not my intention, nor was this necessary. I explained that I simply wanted to ensure that as many products as possible could sold to avoid wastage. i can’t remember exactly how we left the conversation , but I seem to recall Mike storming away from me. (Tom Philip, ws para 11,12). 4.11. Mr Blakeborough made a note as to what happened at the time and set it out in a grievance statement that he produced at the meeting on 14/12/17. It echoes the content of his contemporary email to Ms Griffiths-Lumb. “(He) called a Tannoy for me to come to Checkouts so I walked back round and before I could respond to anything he was talking at me getting loud and showing me items he was blaming me for not reducing and started telling me how I had plenty of time to do my job properly so why was this and this and this and that. He was doing this really fast. He held various things in front of me accusingly. I felt I was going to have a panic attack if he did not stop the aggression so I said to him three times while he was speaking over me and he was getting louder and louder, “Tom, I’m not in a good place right now” Tom, I am not in a good place” “Tom, I am in a really bad place in my mind” as he carried on humiliating me in front of Partners and Customers by the tills. …. He stopped for a moment and then finally acknowledged what I had said to him and responded very loud and with lots of gesticulation with the words - “With, all due respect Mike that’s not my problem …. THIS is my problem,” (pointing to the reduction bins) (124) 4.12. Of that, Mr Philip agrees that he pointed to various items, and that Mr Blakeborough said, once, “Tom, I’m not in a good place right now.” Mr Philip’s account remains that Mr Blakeborough exploded “immediately” and without reason. 4.13. It is agreed that Mr Blakeborough went on to experience a serious panic attack, outside the Partners Dining Room where he was found by Victoria Clayton and then Alison Poole and moved into the dining room to sit down, feeling faint. Ali Poole left him with Melanie Metcalf, a first aider. Mr Philip then joined them and told Melanie to leave, and remained with Mr Blakeborough himself. Mr Blakeborough found that intimidating, and reports that he was particularly affected by the comment dismissive of his mental health. Grievance investigation 4.14. On 4/12/17, Mr Blakeborough raised a grievance raised about the events of 30/11/17 (107, 122) 4.15. The grievance set out Mr Blakeborough’s account of the shop floor incident and the way that Mr Philip excluded Melanie when she was helping him, leaving Mr Blakeborough without her support or on his own to recover, when in Mr Blakeborough’s account, the incident had been triggered by Mr Philip’s behaviour and attitude, “Melanie Metcalfe…. was helping me get through it. Ali left because she saw I was in good hands with Mel. Tom came into the room and rudely and aggressively asked Mel to leave. He sat on the table next to me and asked me to look up at him in a harsh tone. I could not as my anxiety attack was getting worse again. I had to put my head down on the floor because I felt really faint. He said that was not going to help because I was bright red in the face and he thinks that’s not the problem. It took everything I had to try and get out of the situation I only remember bits and pieces of conversation with him but I do remember saying to him this is what anxiety looks like and that it was his comment that started it.” 4.16. Mr Brumby was asked to handle the grievance. He was also conducting another grievance investigation into a matter concerning Mr Philip. 4.17. The grievance meeting took place on 14/12/17 (136 – 138). Mr Blakeborough was accompanied by Ms Griffiths-Lumb. 4.18. Mr Brumby opened, after introductions and explanations, going through the grievance statement with Mr Blakeborough. Mr Blakeborough explained his anxiety condition and his use of Cognitive Behavioural Therapy. He explained that he was usually able to control his anxiety; panic attacks were rare. He described Mr Philip as being angry and gesticulating, incredibly red in the face, showing unexpected anger. He was accusing Mr Blakeborough of not using his time properly; there were too many unsold goods. Mr Blakeborough was sure he had explained that he was following Leeanne’s plan, that is, not to reduce goods too much given that if sold, they would be automatically reordered. He said it began to feel like a personal attack, which is when he said “Tom, I’m not in a good place”. In his recollection, it was Tom Philip who walked off. 4.19. He added that the only previous panic attack in Waitrose involved Mr Philip, and this had been worse. It was hard to manage the anxiety while having a conversation with the person who had caused it. 4.20. Possible witnesses were discussed and there was a reference to the fact that there would be CCTV cameras in the area which would still have the images from that day (157). 4.21. After the interview, Mr Blakeborough emailed Mr Brumby details about the end of year performance review he had had with Nicola Griffiths-Lumb prior to the incident with Mr Philip on 30/11/17. He had not been told of the change from very good to good or of the reasons for it. Ms Griffiths-Lumb had explained to him that he would be going back up to very good because he had become a key holder. Mr Blakeborough explained that because Mr Brumby had asked him what was on his mind before the incident with Tom Philip and he did not feel he had given a full explanation. Mrs Griffiths-Lumb had just told him that she had told Mr Philip on 30/11/17 that he was a bit upset about that. 4.22. On 22/12/17, Mr Blakeborough was referred to the Partnership Health Service and on 3/01/18, he went on sick leave. , 4.23. Mr Blakeborough had identified witnesses to the incident on the shop floor, Melanie Metcalfe and Karen Gregory cashing up the cigarette and Alison Poole on one of the main checkouts, with a queue of 3 – 4 customers. Staff were stacking shelves. Some partners were doing their own shopping. 4.24. Mr Brumby spoke to the three named staff members and also to Victoria Clayton . Although they were present nearby, he did not ask Melanie Metcalfe or Alison Poole what had happened on the shop floor. His questions were about Mr Blakeborough and his health. 4.25. Mr Brumby interviewed Melanie Metcalfe by telephone on 10/01/18 (203) She wasn’t asked what had happened on the shop floor. His question was, “Do you recall seeing Mike Blakeborough in some distress on 20/11/18 in the Partners Dining Room?” 4.26. In reply, she recounted that there was a conversation between Tom and Mike downstairs. Alison Poole told her that Mike was having a panic attack, in distress. Alison Poole asked her for help and support with Mike. Melanie Metcalf is first aid trained. She felt she needed to tell a manager first “as it sounded quite bad”. She informed Tom as the only manager available that Mike was having a panic attack and asked him what he would like her to do. She says, “He said ‘just ignore him. I said I would like to do something and he said ‘Do nothing, just ignore him’” (202) 4.27. She knew Mr Blakeborough suffered from anxiety, so she went up to support him. “Mike was trying to monitor his breathing and myself and Ali calmed him down. When Tom Philip came, he mouthed to me ‘Get out’; and used a thumb sign to signal to me to leave. He then spoke to me in the corridor outside the Partners Dining Room saying that Mike needs to be ignored in situations like this, not to be given any attention. He then told her to finish her break in the Branch Manager’s office. Mr Blakeborough was left on his own with Tom Philip.” 4.28. She said that Mike told her when he came down half an hour later that Tom had said that his mental health issues were not his problem. She had felt let down by Tom. 4.29. Alison Poole was interviewed on 11/01/18 (206). She was asked if she had witnessed Mr Blakeborough being upset in the branch on 30/11/17. She reported that she had: it was “very memorable, quite severe” (207). 4.30. She had gone upstairs to the Partners Dining Room and came across Mike, ”on the floor in a foetal position, hands on his head, very distressed, using the wall as support. …he couldn’t speak to me, had trouble breathing, he was very pale, trying to control his breathing with an app on his phone. I was extremely concerned.” 4.31. Once Melanie Metcalf had alerted Tom Philip, and returned with him, Alison Poole felt able to leave and go home. 4.32. There was no question as to whether she was aware of or had seen what had happened on the shop floor before this. 4.33. Mr Brumby interviewed Victoria Clayton “Can you recall seeing Mr Blakeborough upset in the branch on 30/11/17? She answered about the panic attack and having seen him outside the Partners’ Dining Room and had reported that to another partner. Victoria Clayton had been working with Mr Blakeborough before the incident with Mr Philip, as set out in the Grievance Statement, but was not asked about his mood or manner at that stage. 4.34. Karen Gregory was interviewed by telephone on 18/01/18 (218). She was working on checkout at the time of the conversation between Mr Blakeborough and Mr Philip. Mr Brumby asked her – for the first time in his investigation – about the conversation between Mr Philip and Mr Blakeborough on 30/11/17. She heard Mr Philip say something like “This isn’t acceptable”. She commented that the conversation had been within earshot of others and that Mike looked embarrassed. There are no follow up questions noted. Those responses invite further questioning. 4.35. Mr Philip was interviewed on 26/01/18. Mr Philip gave the earlier history of the Sunday trading incident, expressing surprise at the mistake and also at what he described as an explosive reaction to being found at fault (222). He confirmed that he was aware of Mr Blakeborough’s anxiety. 4.36. Mr Philip’s account in respect of 30/11/17 is that he had asked Mr Blakeborough a few questions about reductions, nothing more than , “Where are we with the current list, Bays are still full, do you need some help?” and “He exploded in front of me – really unreasonable reaction.” He described it as a normal shop floor conversation and the reaction “hugely concerning” (225 and 226). Mr Blakeborough later apologised for his reaction. 4.37. Mr Brumby put to Mr Philip some of the matters that emerged from the other witness statements. Mr Philip denied that he was annoyed. He did not recall Mike Blakeborough saying “I’m not ok”. If he had said that, he would have got Melanie back. He denied saying that Mike’s ‘mental health was not his problem’ He denied that he had himself used a thumb gesture to signal to Melanie to leave Mr Blakeborough alone or that he told her to ignore him. He acknowledged saying that Mike needed to be left alone to calm down – “as she was cuddling him potentially (she) could be making things worse.” 4.38. Mr Brumby faced a stark conflict between the evidence of Mr Blakeborough and the evidence of Mr Philip. 4.39. The incident on the shop floor took place near the till and the cigarette kiosk. There was CCTV footage available. Mr Brumby did not view the CCTV footage. It was automatically wiped after three months. Grievance outcome 4.40. On 9/02/18, Mr Brumby rejected the grievance (238 – 242). He found no evidence to support Mr Blakeborough’s account. He found no evidence of bullying or harassment by Mr Philip. Instead he recommended a tailored adjustment plan. “I recommend that we agree a more tailored approach to give you feedback that minimises the risk of you having panic attacks and anxiety at work and supports your manager in having conversations with you when an issue needs to be addressed.” (242) Appeal 4.41. Mr Blakeborough lodged an immediate appeal (261). 4.42. The grounds were Discrimination under the Equality Act 2010 His mental health being disregarded, despite previous knowledge of mental health and what he said during the incident No real back and forth to questioning during the investigation Missing/lost evidence such as CCTV of the event Delay during the investigations, Failure to take into account evidence of bullying conduct towards others. 4.43. Mrs Gray was appointed to handle the appeal. On 15/02/18 , she invited Mr Blakeborough to attend the appeal hearing in London. He was still off sick. 4.44. The appeal hearing took place on 8/03/18 (270). He attended with Leanne Leonard-Sampson as his companion. 4.45. Ms Gray obtained a fuller description of Mr Philip’s conduct on the shop floor on 30/11/17 (the company style is to put the interviewee’s comments in statements as “You”), “How Tom spoke to you made you feel you were in trouble. He was physically aggressive, picking up objects, showing them to you, arms in the air above his head, you believe that the CCTV footage would capture this, and Melanie (Metcalf) and Karen (Gregory) would have seen it. 4.46. Mr Blakeborough put the history in the context of the earlier incident with Mr Philip and that he was confident Mr Philip knew of his anxiety condition. 4.47. On 13/03/18, Mrs Gray interviewed Mr Brumby. He had found no corroboration for Mr Blakeborough’s account of Mr Philip’s behaviour on the shop floor. He had found Mr Philip’s account to be more credible. He didn’t believe that Mr Philip had told Melanie Metcalf to ignore Mr Blakeborough. He knew about the discussion about Mike’s grading earlier that afternoon and concluded that Tom had spoken to him at the wrong time: “Mike was trying to manage his thoughts and had a panic attack and Tom happened to be there at the wrong time.” (274) 4.48. His recorded reason for not viewing the CCTV footage was that there were no cameras that captured that area - he had asked the Branch Manager (275). 4.49. Ms Gray didn’t ask Mr Brumby why he had not explored more fully with the witnesses what had happened on the shop floor. Ms Gray’s investigation: Melanie Metcalf 4.50. On 1/05/18, Ms Gray interviewed Melanie Metcalf (280). She made summary notes of the responses. 4.51. Ms Metcalf initially said that she didn’t see anything on the shop floor save that Mike was dealing with reductions, “It didn’t go100% and he was feeling the pressure when Tom noticed that there still a lot of reduced items to sell.” but later when asked more specifically, she explained, “When you were on the shop floor the reduction trolley was near your till. From what you can recall, the conversation was a tense conversation that maybe should not have happened on the shop floor. Body language, could see that Mike was getting stressed out and Tom was looking quite angry. His body language, he tends to go red in the face if he gets frustrated with a situation. (280, point 13). “Never seen him that angry as you did that night – heard other Ps (partners) say that but not seen it before” (281, point 15)” 4.52. That comment was specifically in the context of the discussion taking place on the shop floor. 4.53. Her account of later events is this, “Was in the lower warehouse when Ali Poole approached you and said Mike was having a panic attack. Tom was the only manager in that evening…Ali said she understood Tom was part of the problem, however you thought that he should know as he was the most senior partner. …Tom said Mike must be left alone, he is attention seeking. You did not feel comfortable with that response. (You were) On your break so went to PDR (Partners Dining Room), sat with Mike and Ali. Mike was trying to count his breathing and you asked him to turn phone over and help to calm down. … You had an arm round his shoulder. Talking about Cornwall to help him calm down. Tom opened the door glared at you and gestured to you with his thumb and mouthed to get out. When you went out, Tom said quite aggressively “Why are you there, I told you to ignore him”. 4.54. Asked, “What were Tom’s exact words, tone of voice, body language?” “His words were needed to ignore Mike, he said it quite quietly, it was in a ‘roll of the eye manner’, he is just attention seeking. He seemed quite cross when you saw him next in the PDR. The conversation in the corridor was quite heated as you were trying to justify why you were there. He was adamant that Mike should be left on his own. Tom gave the impression that Mike was attention seeking. Mike seemed genuinely distressed at that time.” 4.55. Melanie Metcalf did not find Tom Philips remarks to be appropriate or helpful. Ms Gray’s investigation: Alison Poole 4.56. Alison Poole gave a similar account of the distress Mr Blakeborough had been in but hadn’t seen the earlier conversation on the shop floor (285), “Coming upstairs at the end of your shift about 8.20 pm saw Mike bending over against the wall head in his hands, he was obviously in great distress. Thought he had some really bad news. He had his phone in his hand. Asked Mike what had happened. He was breathless, he was looking at his phone and he referred to his heart rate being too high and his breathing. Was asking him what he needed. He said “one thing is bad enough two is just too much…. Realised he was having a panic attack. Thought someone needs to know about this, did not think he was safe to be left. He clearly very distressed, never seen him like that before.” (285) 4.57. She said Mike had told her afterwards, when thanking her, that he had had a difficult day, Tom had asked him for something to be done and got upset about something that had not been done – Mike got very worried. Mrs Gray’s investigation: Tom Philip 4.58. Tom Philip was interviewed and again referred to an explosive response to a normal question, such as “Where are we with the current list, do you need any help?” (286/7). It was over the top loud, almost aggressive. He remembered that Mr Blakeborough had said words to the effect “I’m not in a good place, can’t deal with this now, can’t take this all in.” He thought Mr Blakeborough was upset. He said he did not relate his distress to his mental health (287). If he had, he said he would have got some help. 4.59. He explained that he thought Melanie wasn’t helping by being there, thinking Mr Blakeborough needed time to think. He denied saying that Mr Blakeborough was attention seeking but had thought that it would be easier for him to calm down on his own. He didn’t recall a heated conversation with Melanie. He had gone back to Mr Blakeborough after Melanie had left, and said he was fine after about 20 minutes. He didn’t describe the acute distress that Melanie and Alison Poole described or that Mr Blakeborough had his head down, fearing to faint. 4.60. Others were interviewed about general state of affairs and working relationships in the store. Nicola Griffiths-Lumb hadn’t been interviewed, and had by now left the partnership. Return to work 4.61. Mr Blakeborough remained off sick until May. While still waiting for the outcome, he heard from Alice Clements that Mr Philip had been moved to the Chipping Sodbury branch (ws 30) 4.62. On 21/05/18, Alice Clements referred Mr Blakeborough to the Partnership Health Service. It was also agreed that he would work 2 days per week instead of 4. The only adjustment recommended by the health professional was a phased return to work, and that was implemented. 4.63. The notes produced of the telephone consultation following that referral record, “Has mainly been off this long due to grievance process, awaiting outcome for the appeal currently. Manager who Mike took grievance out against has gone to another branch for 6 month secondment.” 4.64. That information came from Mr Blakeborough, so at that point, he knew that the absence of Mr Philip in Chipping Sodbury was temporary. 4.65. On 27/05/18, Mr Blakeborough returned to work knowing that Tom Philip had been moved for the time being. Alice Clements carried out the return to work meeting. There was no request at the back-to-work meeting to have different working hours from Tom Philip (ws 25), but Mr Blakeborough did express apprehension about working in the same building as him. Ms Clements recommended that Mr Blakeborough have a Tailored Adjustment Plan but Mr Blakeborough still resisted that. (25 AC ws). He was still waiting for the appeal outcome and was returning to work hoping for a positive result. The outcome of the appeal 4.66. On 8/06/18, Ms Gray issued her determination. She rejected the appeal in an 8 page letter (290). She acknowledges that Mr Blakeborough was upset on 30/11/17 but had not found evidence that Mr Philip’s behaviour was inappropriate or that he bullied or harassed him (317). 4.67. She concluded that Mr Brumby had conducted a full investigation and had justified his preference for Mr Philip’s account of events. She found Mr Philip’s account on her interview to be consistent and sufficiently detailed. He was adamant that he had not demonstrated any anger towards Mr Blakeborough. He hadn’t ignored Mr Blakeborough saying “I’m not ok” nor had he judged that Mr Blakeborough’s medical condition was exacerbated by his conversation with him. He had later learned that Mr Blakeborough was “in some distress” and had intended to leave him some time alone to recover. She found no bullying or in appropriate behaviour. 4.68. She had made some wider enquiries of staff not present or involved with the issues on 30/11/17). There had been references to some unhappiness with his management style and another grievance against him. She goes on, “Through no fault of his own, other than being the longest serving and sometimes sole manager at Melksham who has been required to deliver some difficult messages on behalf of the business and as a manager who manages poor performance, Tom has acquired an unfair reputation in my view as a result of an ongoing campaign of rumours spread by Partners who have chosen to unfairly represent situations to pass the blame to Tom from themselves. I have discussed my findings at length with Alice who has assured me that this inappropriate culture in pockets of the branch will be addressed. Whilst I have found no evidence to support your belief that Tom’s conduct was inappropriate …. Tom has recognised that his intentions are not always perceived as he intended and he was keen to take on board this feedback” 4.69. That account appears to link the claimant’s complaint with the “ongoing campaign of rumours” unfairly spread by partners. 4.70. She categorises Tom’s actions as management interventions. She considers that Mr Blakeborough had not explained enough about his condition. “It seems that Tom is under criticism for not fully understanding the impact of your condition when you have not shared how it impacts you.” 4.71. She strongly recommended (318) that he write a Tailored Adjustment Plan, to ensure his managers were fully appraised of his needs in order to support him appropriately. 4.72. The appeal outcome was long delayed and it is not clear why. More than three months passed from the appeal hearing in London to the issue of the report. 4.73. Mr Blakeborough decided to pursue his challenge using ACAS and if necessary a Tribunal. 4.74. He rejected a Tailored Adjustment Plan because he felt his health had been blamed for his reaction to the incident, had provided a convenient explanation without questioning the manager’s involvement and because he only needed reasonable conduct towards him. “No, everyone is entitled to be spoken to fairly, sensitively and what was needed only was not to bully me, that would have had to be the agreement.” “Do you accept that your condition makes you more vulnerable? To negative feedback?” “Only if the feedback is given to me in a hostile, angry, physically hostile environment, that will absolutely trigger me to have problems.” “It is usually a pride to me that I am able to manage my mental health and live my life… don’t see how a TAP could possibly have helped unless it set out that a manager would not be hostile, shouting threats..” (oral evidence) June to August 2018: first ET1 4.75. On 17/07/18, Mr Blakeborough lodged his first discrimination claim, saying that the incident of 30/11/17 caused a panic attack and led to a major depressive episode with an absence of five months. The manager concerned was aware of his mental health problems. A key witness was not interviewed, but the inference drawn that her prior discussions with him had contributed to the panic attack. The reliance on a Tailored Action Plan reflected a view that his health was the problem not the manager’s conduct. The CCTV footage had not been seen, had been allowed to be wiped and its existence denied. The appeal investigation had been conflated with a different investigation (8). 4.76. At some stage, he was reminded that Tom Philip was only temporarily at Chipping Sodbury until October – he says in his witness statement that he hadn’t known that, but he himself mentioned it to the Clinical Case Manger before his return to work, so he had initially known. (ws33 and p194). 4.77. On 23/07/18, Mr Blakeborough asked if he could change his working hours so that he would work only on Sunday, in order to avoid working with Mr Philip (Ms Clements ws para 29. The application was not formally made, as required, on Partnerlink. There was a discussion about Mr Philip, who was still due to return to the Melksham branch in January 2019. She couldn’t guarantee that the two would not have to work together. There was also no basis on which action could be taken against Tom given that he had not been found to be at fault in the grievance or the appeal. A Tailored Action Plan was recommended again but refused. Mr Blakeborough remained anxious about working with Mr Philip, “I did not feel I could continue on if it meant Tom and me working together… I was petrified of Tom, I couldn’t face him, that is what that conversation was about.” (oral evidence) 4.78. He was allowed to go home early because he was upset. He saw his GP, he became self-harming. 4.79. Ms Clements does not recall learning about his self-harming conduct, but she did make a further health referral on 6/08/18. 4.80. On 9/08/18, Partnership Health Services confirmed Mr Blakeborough to be dealing with an anxiety state and he was referred to Rehabworks, the counselling service (335). Informal Meeting 20/08/18 4.81. Mr Blakeborough had asked people about being witnesses for him in the Tribunal proceedings or to give him witness statements. One refused, because of the anxiety and stress of the situation. Others had said maybe. He had approached them again for an answer. 4.82. Carolyn reported to Alice Clements that Mr Blakeborough had approached Karen and Becca. Melanie had been approached by Nicola Griffiths-Lumb on Mr Blakeborough’s behalf. 4.83. Becca had been seen to be upset by Alice Clements who asked her about it. 4.84. Alison had sought advice about a similar approach. 4.85. It was the manner of asking as well as the request itself that had caused concern. 4.86. Ms Clements called Mike in for an “informal interview”. He had been aware of Ms Clements speaking to Becca, so he was half-expecting a meeting. 4.87. The effect of it being an informal interview was that he was not given notice and he was not given the chance to have someone with him. 4.88. Another manager was present when he entered, as notetaker. 4.89. The meeting began with Alice Clements describing it as an informal discussion. It didn’t open with a request for Mr Blakeborough to explain what had happened or with an account of the issue brought to Ms Clements. She told him he was well within his rights to ask for witness statements but it needed to be in his own time, or other partners’ break time and he needed to think about how he made other partners feel. 4.90. Mr Blakeborough found the situation very difficult, uncomfortable, provocative, and said that the meeting was “Not okay”. He left quickly, fearing a panic attack. He left work immediately and returned home feeling suicidal. 4.91. He had a phone call from Rehabworks who helped him through his feelings and helped him to create a safety plan, a copy of which was lodged at his GP office. 4.92. Mr Blakeborough remained off work sick throughout the remainder of his employment. Sick notes were provided but he avoided contact from work. Letters leading to Resignation 4.93. On 30/09/18, Mr Blakeborough wrote by email to Alice Clements (363): “Due to the unwillingness of John Lewis to take seriously my complaints against Tom Philip and the flawed process used to investigate him and due to your own unwillingness to take steps to prevent crossover of my working hours with Tom Philip, I feel I am left with few options. I would like to offer one last chance for this situation to be made right. If I receive no indication of adjustments that would enable me to return to the store by Monday 8th October, I will resign from my position at the store and add a claim of constructive dismissal to the existing legal action against John Lewis plc. It is highly disappointing that the company has so far been unwilling to do the right thing and chosen to risk breaking the law rather than deal with the ongoing, inappropriate behaviour of a manager and even actively try to cover up for him, instead of treating my disability as a scapegoat. I am sorry it has come to this and I do not wish to (do) this. I will miss Waitrose Melksham dearly but I refuse to stay in an unsafe working environment and be punished and victimised for trying to do the right thing and protect myself and others who have suffered similar behaviour.” 4.94. By return, on 30/09/18, Alice Clements replied, saying that the actions he had complained of had been held to be management interventions. She acknowledged how he felt about working alongside Tom in future. She offered mediation. She told him that Tom would not coming back to the branch until January 2019. There had been a further, third, referral to Partnership Health Services and adjustments recommended would be considered. 4.95. By a letter sent by email dated 5/10/18, Mr Blakeborough explained how badly let down he felt by the dismissal of his complaints against Mr Philips, reminding Ms Clements the case was going to the Tribunal. He also set out the impact on him, and his suicidal ideation and self harm. 4.96. He set out two adjustments that he wanted to enable him to return to work: for Mr Philip not to return to the Melksham branch and for mediation between himself and Alice Clement. If those changes were not made pending the Tribunal hearing, he would not be returning to work. If matters could not be agreed, he would resign and claim constructive dismissal (367). 4.97. The preliminary hearing for the Tribunal was listed for 23/10/18. 4.98. Alice Clement replied on 5/10/18. She reiterated that Tom Philip would be working elsewhere until January, when he would return to Melksham, “In the meantime, there are many options available to help with your return to work and, in due course, working in the same branch as Tom, including mediation which is often very successful in repairing working relationships.” 4.99. She agreed to mediation with him for herself, but did not agree that Tom Philip would be moved permanently elsewhere. 4.100. Mr Blakeborough resigned on 15/10/18, giving notice taking effect on 29/10/18 (373). 4.101. On 17/10/18, Mr Blakeborough wrote that he had resigned as on 15/10/18, because she was unable to make “a reasonable change which would have allowed me to return to work”. He had accepted employment elsewhere and was bringing a claim of constructive dismissal. He thanked the staff he worked with and Alice Clement herself, for her support prior to the August events, when she “suddenly changed to a strict punisher as a result of my legitimate legal Claim against the John Lewis Partnership.” (375) 4.102. On 23/10/18, Mr Blakeborough’s second claim was lodged on the grounds of unfair constructive dismissal and disability discrimination (31). 5. Law Unfair Dismissal 5.1. Section 98(1) of the Employment Rights Act 1996 (“ERA 1996”) sets out: “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” 5.2. It is for the employer to satisfy the Tribunal as to the reason for the dismissal. 5.3. If the employer fails to establish that the reason for the dismissal was an acceptable one, the tribunal must find the dismissal unfair. Constructive Dismissal 5.4. A termination of the contract by the employee will constitute a dismissal within section 95(1)(c) of the ERA 1996 if he or she is entitled to so terminate it because of the employer's conduct. That is a constructive dismissal. 5.5. In order for the employee to be able to claim constructive dismissal, four conditions must be met: i) There must be a breach of contract by the employer. ii) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. A repudiatory breach of contract is a significant breach, going to the root of the contract (Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. iii) The employee must leave in response to the breach and not for some other, unconnected reason. iv) The employee must not delay too long in terminating the contract in response to the employer's breach, otherwise he or she may be deemed to have waived the breach and agreed to the variation of the contract or affirmed it. 5.6. Employment contracts contain an implied term of mutual trust and confidence. The parties to the contract will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust which should exist between employer and employee (Malik v BBCI SA (in liq) [1998] AC 20). 5.7. It is not simply about unreasonableness or unfairness. The question is whether the conduct complained of was likely to destroy or seriously damage the relationship of trust and confidence. 5.8. The general principles of contract law applicable to a repudiation of contract are that if one party commits a repudiatory breach of the contract, the other party can choose either to affirm the contract and insist on its further performance or he can accept the repudiation, in which case the contract is at an end. The innocent party must at some stage elect between these two possible courses: if he once affirms the contract, his right to accept the repudiation is at an end, but the election to affirm is not required within any specific period. 5.9. Delaying too long or, by conduct, indicating acceptance of the change, can point to affirmation. It is not simply a matter of time, in isolation. In WE Cox Toner (International) Ltd v Crook, [1981] IRLR 443, it is established that mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation. Simply continued working and the receipt of wages points towards affirmation. Nevertheless, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation. 5.10. A complaint may be based on the conduct of a fellow employee, even though that employee would not have had the authority to dismiss the complainant. 5.11. A constructive dismissal is not necessarily unfair. In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the Malik test above applies; if acceptance of that breach entitles the employee to leave, he has been constructively dismissed; it is open to the employer to show that such dismissal was for a potentially fair reason and if he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, substantively and procedurally, fell within the range of reasonable responses. Direct Discrimination 5.12. Direct discrimination is provided for under the Equality Act 2010 (“EA 2010”) by section 13(1): “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.’ 5.13. By section 39(2) of the EA 2010, ‘An employer (A) must not discriminate against an employee of A’s (B) (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by subjecting B to any other detriment.’ 5.14. Detriment does not require a physical or economic consequence; it is sufficient that a reasonable person might take the view that they have been disadvantaged: “Detriment exists if a reasonable worker would, or might, take the view that the treatment accorded to her had in all the circumstances been to her detriment. It is not necessary to demonstrate some physical or economic consequence.” (Shamoon v Chief Constable of RUC [2003] IRLR 285 HL) 5.15. As the Equality Act Statutory Code of Practice on Employment (“the Code of Practice”), explains, at paragraph 3.5: ‘It is enough that the worker can reasonably say that they would have preferred not to be treated differently from the way the employer treated – or would have treated – another person.’ 5.16. Actual or constructive knowledge of the disability by the managers concerned is required in a claim for direct disability discrimination (Gallop v Newport City Council [2013] EWCA Civ 1583 and Morgan v Armadillo Managed Services Ltd, [2014] UKEAT/0567/12. The comparator 5.17. Essential to the consideration of less favourable treatment is the question of comparison. 5.18. By section 23 of the EA 2010, “On a comparison of cases for the purposes of sections 13, 14 and 19, there must be no material difference between the circumstances relating to each case.” 5.19. This is dealt with in particular by the Code of Practice at paragraphs 3.22 on. 5.20. The other approach is to say but for the relevant protected characteristic, would the claimant have been treated in this way? That may be helpful in identifying a hypothetical comparator (Code of Practice, 3.27). Failure to make reasonable adjustments 5.21. The EA 2010, by section 39(5), imposes a duty on employers to make reasonable adjustments. 5.22. The duty is set out at section 20 of the EA 2010. 5.23. The duty comprises three requirements. The first is where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. The second relates to where a physical feature puts the disabled person at a substantial disadvantage, making the same comparison, to take such steps as it is reasonable to have to take to avoid that disadvantage. The third, in similar terms relates to the provision of an auxiliary aid. 5.24. A failure to comply with any of those requirements is a failure to make reasonable adjustments. By section 21(1) and (2), “A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. 5.25. The duty does not arise where A did not know and could not reasonably be expected to know that B has a disability and is likely to be placed at the disadvantage referred to – that is the effect of schedule 8, paragraph 20, as amended, to the EA 2010. However, the employer must do all they can reasonably be expected to do to find out whether a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. So, knowing of a condition such as dyslexia, the employer has a duty to do what it reasonably can to establish the effects of that and so avoid the risk of a substantial disadvantage arising. 5.26. No like for like comparator is required – the comparison may be between those who could do the job and the disabled person. As explained in Royal Bank of Scotland v Ashton ([2011] ICR 632), the tribunal must identify the non-disabled comparator or comparators. That may be a straightforward exercise, “In many cases, the facts will speak for themselves and the identity of the non disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.” Fareham College Corporation v Walters ([2009] IRLR 991) 5.27. There is no onus on the disabled worker to suggest what adjustments ought to be made. It is good practice for employers to ask. If the disabled person does make suggestions, the employer should consider whether such adjustments would help overcome the substantial disadvantage and whether they are reasonable. (Code of Practice para 6.24) 5.28. It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, of what reasonable adjustments may be required. … It is advisable to agree any proposed adjustments with the disabled worker in question before they are made. (Code of Practice para 6.32.) 5.29. In considering whether there has been a failure to make reasonable adjustments, the tribunal must identify the step or steps it is reasonable to take to avoid the disadvantage – the question is the nature of the step, not the assessment of the mental process concerned. (Royal Bank of Scotland v Ashton, op cit). 5.30. The PCP should identify the feature which actually causes the disadvantage and exclude that which is aimed at alleviating the disadvantage. 5.31. The process for the Tribunal therefore is to identify: (a) the employer’s provision, criterion or practice which causes the claimant’s disadvantage (b) the identity of the persons who are not disabled with whom comparison is made (c) the nature and extent of the substantial disadvantage suffered by the employee(d) what step or steps it is reasonable for the employer to have to take to avoid the disadvantage (General Dynamics Information Technology Ltd v Carranza [2015] IRLR 43). 5.32. The Tribunal must identify all of those in order to judge whether the proposed adjustment is reasonable. It must identify the nature and extent of the substantial disadvantage suffered by the claimant, including, if applicable, any cumulative disadvantage, say, from both provisions applied and physical features. In the absence of that, it is not possible to identify the adjustments that are reasonable to prevent the disadvantage. There is no need to find that the adjustment would have prevented the adverse effects. The Tribunal is entitled to find that the adjustment proposed was a reasonable option with a not unreasonable chance of success. (The Environment Agency v Rowan [2008] IRLR 20). 5.33. Assessing the reasonableness of any particular step, relevant factors will be how effective it will be in preventing the substantial disadvantage, how practicable it is, who much it will cost and how disruptive it may be, the size and resources of the employer and the nature of the business. It may also be relevant that external resources are available to help provide adjustments. 5.34. Failure to make a reasonable adjustment cannot be justified, but only reasonable steps fall within the duty. Whether or not adjustments were reasonable in the circumstances is to be determined by the employment tribunal objectively, (HM Land Registry v Wakefield [2009] All E R 205 (EAT)). 5.35. The duty does not arise where A did not know and could not reasonably be expected to know that B has a disability and is likely to be placed at the disadvantage referred to – that is the effect of schedule 8, paragraph 20, as amended, to the EA 2010. However, the employer must do all they can reasonably be expected to do to find out whether a worker has a disability and is, or is likely to be, placed at a substantial disadvantage. So, knowing of a condition such as dyslexia, the employer has a duty to do what it reasonably can to establish the effects of that and so the risk of a substantial disadvantage arising. 5.36. In Wilcox v Birmingham CAB Services Ltd [2011] Eq:R.S810, the EAT took the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise. An employer will be taken to have the requisite knowledge provided that they are aware of the impairment and its consequences. There is no need for them to be aware of the specific diagnosis (Jennings v Barts and the London NHS Trust [2013] Eq:R 326 EAT. If an agent or employee knows in that capacity of a worker’s disability, the employer will not usually be able to claim that they do not know , see para 6.21 of the Code. 5.37. 4.25 No like for like comparator is required – the comparison may be between those who could do the job and the disabled person. As explained in Royal Bank of Scotland v Ashton ([2011] ICR 632), the tribunal must identify the nondisabled comparator or comparators. That may be a straightforward exercise, “In many cases, the facts will speak for themselves and the identity of the non disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.” Fareham College Corporation v Walters ([2009] IRLR 991) 5.38. There is no onus on the disabled worker to suggest what adjustments ought to be made. It is good practice for employers to ask. If the disabled person does make suggestions, the employer should consider whet her such adjustments would help overcome the substantial disadvantage and whether they are reasonable. (Code of Practice para 6.24). 5.39. It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, fo what reasonable adjustments may be required. … It is advisable to agree any proposed adjustments with the disabled worker in question before they are made (Code of Practice para 6.32). 5.40. There must be at least a prospect, a possibility, that the proposed adjustments would succeed but not more (Cumbrian Probation Board v Collingwood [2008] UKEAT/0079/08, paragraph 50; Leeds Teaching Hospital NHS Trust v Foster [2011] EQLR 1075, paragraph 17; North Lancs Teaching Primary Care Trust v Howorth UKEAT/0294/13.) 5.41. Assessing the reasonableness of any particular step, relevant factors will be how effective it will be in preventing the substantial disadvantage, how practicable it is, who much it will cost and how disruptive it may be, the size and resources of the employer and the nature of the business. It may also be relevant that external resources are available to help provide adjustments. 5.42. Whether or not adjustments were reasonable in the circumstances will be determined by the employment tribunal objectively (Morse v Witshire CC [1998] IRLR 352 and HM Land Registry v Wakefield [2009] All E R 205 (EAT)) 5.43. Failure to make a reasonable adjustment cannot be justified, but only reasonable steps fall within the duty. Harassment 5.44. By section 26(1) of the EA 2010, “A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” 5.45. In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must, by section 26(4), be taken into account – “(a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” 5.46. Harassment is discussed in Chapter 7 of the Code of Practice. Paragraph 7.8 explains that, “The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.” 5.47. Paragraph 7.9 explains that “related to” has a broad meaning, in that the conduct does not have to be “because of” the protected characteristic. 5.48. Section 26(4) is more fully discussed at paragraph 7.18 of the Code. The perception of the worker is a subjective question and depends on how the worker regards the treatment. 5.49. In paragraph 15 of Richmond Pharmacology v Dhaliwal 2009 [IRLR] 336, the nature of harassment is explored in similar terms: “The proscribed consequences are, of their nature, concerned with the feelings of the putative victim; that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a “subjective” element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. …..It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence….:” Victimisation 5.1. Section 27(1) of the EA 2010 provides that: “A person (A) victimises another person (B) if A subjects B to a detriment because – B does a protected act . . .” 5.2. A protected act includes bringing proceedings under the Act: s 27(2). There is no concept of less favourable treatment as such in this formulation of the wrong. However, if a tribunal finds that the reason for particular conduct adverse to an employee is victimisation, there is implicit in that conclusion a finding that but for having taken the protected act, the employee would have been treated more favourably. Burden of proof 5.3. By section 136(2) and (3) of the EA 2010, the test in respect of the burden of proof is set out: “(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.’ 5.4. The switching of the burden of proof is simply set out in the Code at para 15.34: “If a claimant has proved facts from which a tribunal could conclude that there has been an unlawful act, then the burden of proof shifts to the respondent. To successfully defend a claim, the respondent will have to prove, on balance of probability, that they did not act unlawfully. If the respondent’s explanation is inadequate or unsatisfactory, the tribunal must find that the act was unlawful.” 5.5. For the burden of proof to shift, the claimant must show facts sufficient – without the explanation referred to – to enable the tribunal to find discrimination. The Barton guidelines as amended in the Igen case (Igen v Wong, 2005 IRLR 258 CA), remain the basis for applying the law notwithstanding the re-enactment of discrimination legislation in the 2010 Act. It is those guidelines that establish the two-stage test, “The first stage requires the complainant to prove facts from which the ET could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld (Peter Gibson LJ, para 17, Igen) 5.6. We are referred to Hewage v Grampian Health Board [2012] UKSC 37, which approves at the highest level the application of the Barton/Igen guidelines to cases under the Equality Act. At paragraph 33, Lord Hope, on the burden of proof provisions, says, “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence…” 5.7. In Laing and Manchester City Council and others, 2006 IRLR 748, the correct approach in relation to the two stage test is discussed, “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case…. (para 73) The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race (or other) discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a nice question as to whether the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race’. 5.8. The nub of the question remains why the claimant was treated as he or she was: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” (Madarassy v Nomura International plc) 2007 IRLR 246). 5.9. The presence of discrimination is almost always a matter of inference rather than direct proof – even after the change in the burden of proof, it is still for a claimant to establish matters from which the presence of discrimination could be inferred, before any burden passes to his or her employer. 5.10. In drawing inferences, an uncritical belief in credibility is insufficient’ as Sedley LJ pointed out in Anya v University of Oxford 2001 IRLR 377 CA (paragraph 25) it may be very difficult to say whether a witness is telling the truth or not. Where there is a conflict of evidence, reference to the objective facts and documents, to the likely motives of a witness and the overall probabilities can give a court very great assistance in ascertaining the truth. Time Limits 5.11. Section 123 of the Equality Act sets out the period within which proceedings are to be brought. 5.12. Proceedings on a complaint within section 120 may not be brought after the end of: (a) the period of 3 months starting with the date of the act to which the complaint relates or b) such other period as the employment tribunal thinks just and equitable. 5.13. For the purposes of that section, “conduct extending over a period is to be treated as done at the end of the period; failure to do something is to be treated as occurring when the person in question decided on it.” (s123(4)). 5.14. We were referred to Hendricks v Metropolitan Police Commissioner [2002) EWCA Civ 1686, in particular paragraphs 51 and 52, exploring continuing acts and concluding simply, “The question is whether there is an act extending over a period as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.” 5.15. The time limits set are extended by section 140B of the Equality Act to facilitate conciliation before the institution of proceedings. 6.