D Milford v Network Rail Infrastructure Ltd: 1404123/2022
EMPLOYMENT TRIBUNALS
Case No 1404123/2022
Between
D MilfordClaimantNetwork Rail Infrastructure LtdRespondent
Before
Employment Judge SalterIn person for claimantMs. K. Hosking (instructed by counsel) for respondentDate 9 July 2024
JUDGMENT
It is the judgment of the tribunal that the Claimant was not disabled, within the meaning of the Equality Act 2010, by reason of:[1]The alleged condition variously described as “Neurodiversity”, “ADHD” or “Autism spectrum disorder”; 2. stress; Anxiety or depression before May 2021[1]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.[2]Complaints relating to allegations 13, 16, 20, 24, and 25 were not presented within the applicable time limit. It is not just and equitable to extend the time limit. Those complaints are therefore dismissed. The complaint relating to allegation 26 was not presented within the applicable time limit. The Tribunal considers it is just and equitable to extend time in relation to allegation 26.[3]Allegation 27 (length of the Claimant’s suspension from work) is wellfounded and succeeds as a failure to make reasonable adjustments for disability. All remaining complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed.[4]Allegation 26 (the advertisement of the Claimant’s role before dismissal) is well-founded and succeeds as a complaint of harassment related to disability. All remaining complaints of harassment related to disability are not well-founded and are dismissed.[5]Remedy is to be determined at a separate hearing.
REASONS
[1]The Claimant notified ACAS in relation to mandatory conciliation on 31 October 2022, and the date of issue by ACAS of the certificate was 8 December 2022. By a claim form presented on 9 December 2022, the Claimant brought complaints of unfair dismissal and disability discrimination. The Respondent denies discrimination and contends that it fairly dismissed the Claimant for conduct reasons.[2]At a Preliminary Hearing before Employment Judge Cadney on 2 August 2023 the Claimant was ordered to provide particulars of his discrimination complaints.[3]The Respondent conceded on 28 September 2023 that the Claimant was disabled by reason of anxiety and depression from May 2021 until his dismissal in October 2022. A Preliminary Hearing took place on 3 November 2023 before Employment Judge Salter who decided that the Claimant was not otherwise disabled. At the same hearing a List of Issues was created in discussion with the parties. Both representatives confirmed at the start of this hearing that this List of Issues was correct, and all the matters were still live and in issue between the parties.[4]Having started this hearing on 3 June 2023, on the third day of the hearing, 5 June 2024, the Claimant’s counsel was unwell and unable to attend. The Claimant made an application to adjourn the hearing for a day, which the Respondent did not object to. The Tribunal determined that it would be in the interests of the overriding objective, in particular ensuring that the parties are on an equal footing, to adjourn for one day and recommence on 6 June 2024.[5]The Tribunal heard oral evidence from the Claimant, Daniel Recchia, Darrren Bullock, Duncan Lovatt, Faith Carribine, Michael Terry, Michael Robinson and Simon Gillibrand. An agreed hearing bundle of 1517 pages was provided to the Tribunal. References to page numbers in this document are to page numbers in the Hearing Bundle. The Tribunal was also provided with an agreed chronology and case list. A further longer form chronology was provided by the Claimant.[6]Both parties requested that a particular individual involved, but who was not a witness or party, be referred to as Ms X. This was therefore done by agreement.
The Issues
[7]The issues as set out in the Case Management Order of Employment Judge Salter dated 3 November 2023 are as follows. The parties confirmed at the beginning of this hearing that the List of Issues remained correct, save that the Claimant withdrew Allegations 21 and 28 during the hearing, so these have been removed from the List of Issues. Time/limitation issues[8]The ET1 was presented within a month of the issue of the ACAS Certificate. Given the following dates:a. of receipt by ACAS of EC Notification: 31 October 2022b. issue by ACAS of the certificate by email: 8 December 2022c. the claim form was presented: 9 December 2022, any complaint about something that happened before 1 August 2022 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it.[9]The Respondent accepts that the Claimant’s claim of unfair dismissal has been presented within the primary limitation period contained within s111(2)(a) of the Employment Rights Act 1996 (“ERA”) considering the effect of ACAS conciliation.[10]Were the discrimination complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide the following.a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?b. If not, was there conduct extending over a period?c. If it was conduct extending over a period, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?d. If it was not conduct extending over a period, or the claim was presented more than three months after the end of that period, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide the following. i. Why were the complaints not made to the Tribunal in time? ii. In any event, is it just and equitable in all the circumstances to extend time? Unfair dismissal claim[11]What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.[12]If the reason was misconduct, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:a. there were reasonable grounds for that belief;b. at the time the belief was formed the Respondent had carried out a reasonable investigation;c. the Respondent otherwise acted in a procedurally fair manner;d. dismissal was within the range of reasonable responses.[13]Was the decision to dismiss a fair sanction, that is, was it within the reasonable range of responses open to a reasonable employer when faced with these facts? Equality Act Claims[14]The Claimant relies on the protected characteristic of disability, the impairment is anxiety and depression and the relevant period is from May 2021 until his dismissal in October 2022.[15]The Respondent accepts the Claimant is disabled person in accordance with the Equality Act 2010 (“EqA”) from May 2021 because of anxiety and depression. Section 20 and 21: Reasonable Adjustment[16]Did the Respondent not know, or could the Respondent not be reasonably expected to know that the Claimant had a disability?[17]If so, from what date? Allegation 9: 4 May 2021[18]Ms Carribine failed to interview witnesses who would give a positive view of the Claimant.a. The PCP relied upon is not interviewing witnesses who would be positive about the Claimant.b. The substantial disadvantage is being disabled the Claimant was unable to defend himself adequately.c. The adjustment sought would be for Ms Carribine to interview all relevant people. Allegation 10: 28 May 2021[19]The Claimant received a short email with no attachments, informing him the allegations would proceed to disciplinary investigation.a. The PCP relied upon is the method of notifying the Claimant that the disciplinary process was being proceeded with, by not informing the Claimant of this by email and not in writing and not providing the evidence;b. The substantial disadvantage is being this exacerbated the Claimant’s anxiety and depression.c. The adjustment sought would be for Ms Carribine to send the notification in writing and the evidence to the Claimant. Allegation 11: 28th June 2021[20]The Claimant received a letter from Mr Allison, that did not contain the evidence relied upon by the Respondent for the Disciplinary claims.a. The PCP relied upon is the Respondent not complying with its disciplinary policy and providing the evidence.b. The substantial disadvantage is being this exacerbated the Claimant’s anxiety and depression. disciplinary policy. Allegation 12: 1 July 2021[21]The Claimant did not receive the evidence pack from the Respondent.a. The PCP relied upon is the Respondent not complying with its disciplinary policy and providing the evidence.b. The substantial disadvantage is being this exacerbated the Claimant’s anxiety and depression. disciplinary policy and provide the evidence pack to the Claimant or his union advisor. Allegation 13: 22 July 2021[22]The Claimant received emails from Mr Bullock calling the Claimant to Grievance Hearings on 17 and 18 August 2021.a. The PCP relied upon is the Respondent not complying with its Grievance Policy timescales.b. The substantial disadvantage is being this exacerbated the Claimant’s anxiety and depression. Grievance Policy timescales. Allegation 14: 28th July 2021[23]The Claimant received an invitation to a grievance meeting on 19 August 2021 requiring him to notify the Respondent of witnesses he wished to attend that same day.a. The PCP relied upon is the Respondent not complying with its Grievance Policy timescales and requiring the Claimant to attend three meetings in succession.b. The substantial disadvantage is being this exacerbated the Claimant’s anxiety and depression and would require him to travel to Bristol on three separate days. Grievance Policy timescales. And to move the meetings to different days (the Claimant accepts having two meetings on consecutive days). Allegation 16: 18 August 2021[24]A three-month delay between grievance meetings.a. The PCP relied upon is the Respondent not complying with its Grievance Policy timescales and having a three-month gap between meetings.b. The substantial disadvantage is being this exacerbated the Claimant’s anxiety and depression. Grievance Policy timescales. Allegation 17: 9 September 2021[25]Confusion as to the release of the Claimant’s Trade Union representative.a. The PCP relied upon is the Respondent not releasing the Claimant’s Trade Union representative to attend and assist the Claimant at a meeting. The Claimant says this was down to “confusion”.b. The substantial disadvantage is the further delay this caused the process and causing the Claimant more anxiety.c. The adjustment sought would be for the Respondent to arrange for the release of his Trade Union representative. Allegation 18: 22 September 2021[26]Receiving short notice change in of date for a grievance meeting.a. The PCP relied upon is the Respondent not changing the date in accordance with the Respondent’s Grievance policy and giving his 7 days’ notice.b. The substantial disadvantage is the short notice change caused the Claimant more anxiety.c. The adjustment sought would be for the Respondent to change meeting dates with more than six-days’ notice. Allegation 19: 12 October 2021[27]Cancelling a grievance meeting at short notice.a. The PCP relied upon is short notice cancellations of meetings.b. The substantial disadvantage is the further delay this caused the process and causing the Claimant more anxiety.c. The adjustment sought would be for the Respondent to cancel meetings with more notice. Allegation 20: 22 November 2021[28]Mr Dixon admitting to Mr Paul Smith that he had tried to undermine the relationship between the Claimant and the Claimant’s Welfare Manager (Ms. Connor).a. The PCP relied upon is the Respondent speaking “out of turn” to welfare managers.b. The substantial disadvantage is this caused the Claimant to lose his welfare manager and cause further anxiety.c. The adjustment sought would be for the Respondent to speak appropriately to Welfare Managers. Allegation 22: 17 December 2021[29]The Claimant received an email from Mr Lovatt attaching minute to the meeting of 19th November 2021.a. The PCP relied upon is the Respondent not complying with timescales laid down in its Grievance Policy.b. The substantial disadvantage is extending the time and anxiety the Claimant was suffering. timescales. Allegation 23: 13 January 2022[30]Mr Lovatt rejecting the Claimant’s grievance, despite agreeing with the Claimant on a number of points.a. The PCP relied upon is the Respondent not following the policy that said if the manager conducting the hearing agreed with the points raised the points should be upheld.b. The substantial disadvantage is that it took the Respondent two months to remove the allegations Mr Lovatt agreed with but upheld and this increased the Claimant’s anxiety.c. The adjustment sought would be for the Respondent to follow its policy. Allegation 24: 1 March 2022[31]The Claimant received the grievance investigation outcome from Mr Bullock. The timescale exceeded that in the policy and the Claimant did not receive any minutes from the meetings.a. The PCP relied upon is the Respondent not providing the Claimant with minutes and not complying with the policy timeframes.b. The substantial disadvantage is the impact of this increased the Claimant’s anxiety and prevented him from having a true record of what took place during the meetings.c. The adjustment sought would be for the Respondent to provide the complete record of meetings within the timescale required. Allegation 25: 15 March 2022[32]Mr Bullock sent the Claimant three emails with notes from the previous meetings: none of the notes were complete or a true record of what was said at those meetings.a. The PCP relied upon is the Respondent not providing accurate or complete notes.b. The substantial disadvantage is the increase in the Claimant’s anxiety in not having a complete set of the notes.c. The adjustment sought would be for the Respondent to provide complete and accurate notes. Allegation 26: 23 August 2022[33]The Respondent advertising the Claimant’s role as an internal vacancy before the Claimant’s dismissal.a. The PCP relied upon is the Respondent’s policy of advertising roles before they were vacant.b. The substantial disadvantage is this caused the Claimant to believe that the disciplinary hearing had been pre-judged.c. The adjustment sought would be for the Respondent not to advertise the Claimant’s role as vacant until he had been dismissed. Allegation 27[34]The length of the Claimant’s suspension from work.a. The PCP relied upon is the Respondent the suspension lasting longer than laid out in the policy (almost 19 months and a year after the Claimant was disabled).b. The substantial disadvantage is the impact on the Claimant’s anxiety and depression;c. The adjustment sought would be for the Respondent to comply with the time limits in its policy or return the Claimant to work somewhere elsewhere in the country in order to assist his mental health. In relation to each of the claims above[35]Did the Respondent apply the following provision, criteria and/or practice (“PCP”) generally?[36]Did the application of any such provision put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled?[37]Did the Respondent not know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage set out above?[38]Did the Respondent take such steps to avoid the disadvantage? The burden of proof does not lie on the Claimant; however, it is helpful to know the adjustments asserted as reasonably required and in relation to each claim the Claimant has indicated an adjustment he sought.[39]Would it have been reasonable for the Respondent to have taken those steps at any relevant time?[40]What is the time limit point: when does the Claimant say time started to run, does the Respondent agree? Section 26: Harassment related to disability[41]Did the Respondent engage in conduct of:a. Allegation 20: Mr Dixon admitting to Mr Paul Smith that he had tried to undermine the relationship between the Claimant and the Claimant’s Welfare Manager (Ms. Connor);b. Allegation 26: the Respondent advertising the Claimant’s role as an internal vacancy before the Claimant’s dismissal; andc. Allegation 27: the length of the Claimant’s suspension from work.[42]If so, was the conduct unwanted?[43]If so, was the conduct related to disability?[44]Did the conduct have the purpose of:a. violating the Claimant’s dignity; orb. creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?[45]If not, did the conduct have the effect of:46. violating the Claimant’s dignity; or47. creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? (In considering whether the conduct had that effect, the Tribunal will consider the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect). Statutory Defence[48]The Respondent is not relying on the statutory defence within section 109 of the Equality Act 2010.
The Facts
[49]The Claimant commenced employment with British Rail on 6 August 1990 and his employment continued with the Respondent until the events which form the subject of this claim.[50]The Tribunal has proceeded on the basis that the Claimant had a clean disciplinary record for his nearly 31 years of service with the Respondent, since no evidence was put forward to the contrary and this was accepted by the relevant witnesses in cross-examination. The Claimant was accepted by the Respondent to be a very good performer in relation to the technical aspects of his work, but he was known by his colleagues to be someone whose mood could be hot, cold and occasionally verbally aggressive (but this was expressly said to be not physically aggressive (page 255)). He had not previously been disciplined for this type of interaction with colleagues. These findings are based on interviews with Mr Dixon (page 207) and Mr McNaughton (page 237).[51]In 2016 the Claimant was referred to Occupational Health in relation to concerns about his stress levels and perceived behaviour towards others and his communication style. The report, dated 20 September 2016 (page 1061), stated that he did not have a serious recurrent or chronic underlying mental illness or impairment. The report sets out the following: “2. He does seem to find certain aspects of his role frustrating, especially when dealing with enquiries from colleagues. 3. He may not fully realise how his communication style may seem to others. … He would benefit from proactive ongoing support to help him develop insight into his behaviour, perceived stresses [sic] and communication style develop his career to better fit his aspirations. The follow [sic] are likely to help Ongoing work with the counsellor to explore his concerns. Practical reflective learning with an appropriate person about his communication style. I understand calls are taped and reviewing these with a trusted mentor or trainer may help see how he may come across to his colleagues. Regular support from a trusted mental to discuss his work concerns, progress, and professional matters. He does not undertake access over time but ensures he has a work life balance allowing him to have adequate rest as fatigue can reduce resilient and ability to cope with issues that may seem stressful.” (Pages 1061 and 1062)[52]The Claimant was off work with work related stress between 4 April 2017 and 11 May 2017 (pages 1059 and 1060).[53]In around October or November 2018 the Claimant became a mobile operations manager (“MOM”). Chris McGowan was the Local Operations Manager (“LOM”) and the Claimant’s line manager. The LOM role at that time involved managing the signalers in Devon and the MOMs in Exeter.[54]In March/April 2020, a decision was made to split the LOM role. Mr McGowan would manage the MOMs, and from 20 April 2020 the Claimant was seconded to a newly created second Exeter based LOM role, which involved managing the Devon signal boxes, covering Crediton, Paignton and Exmouth Junction signal boxes as well as Red Cow Crossing. In the new role, the Claimant was now working alongside Mr McGowan.[55]The Claimant was placed on a Development Action Programme ("DAP") on 25 November 2020. The reason for the DAP was that the Claimant did not always demonstrate satisfactory behaviour in the workplace and because he was getting involved in matters beyond the remit of his role.[56]At the relevant time, John Kelly (Operations Manager) was the Claimant’s line manager. He was in turn managed by Craig Russon (Route Operations Manager).[57]In or around March 2021, the LOM role that the Claimant was seconded to was advertised by the Respondent as a permanent position. The Claimant applied for the role and, in light of the ongoing DAP, was offered the role on the basis that he did a further six month secondment and would be made permanent if he maintained good behaviours and met the obligations of the DAP during that six month secondment period.[58]In March 2021 the Claimant became increasingly affected by work related stress, was not sleeping well and was excessively worrying about work. He was finding his role difficult to cope with and becoming more frustrated about his working relationship with Mr McGowan.[59]Between 8 and 12 March 2021 Mr McGowan was on leave and his deputy, Kevin Hammett was covering the role. The Claimant found this difficult and felt it added additional strain. A number of incidents occurred during this week which concerned the Claimant from a safety perspective.[60]On Thursday 11 March 2021, the Claimant attended a six-weekly DAP meeting with Mr Kelly and Vicky Alford (HR Business Partner). At the end of the meeting, the Claimant indicated he wished to raise some observations of things happening in Exeter. Mr Kelly suggested that the Claimant consider discussing the relevant allegations with the colleague in question, Mr McGowan, before taking it further.[61]On 12 March 2021 the Claimant became aware of a voice recording between signallers being played to a third party, which he was concerned was a breach of data protection legislation. He emailed his concerns regarding this to Mr Kelly and Mr Russon (page 180). Further, the Claimant decided to email to Mr Kelly the concerns he had attempted to raise with Mr Kelly in the meeting the day before (page 1045). The concerns related to Mr McGowan allegedly(1) listening to a recording of one of the Claimant’s reports which uncovered a serious training/competency issue but did not inform the Claimant;(2) that a signaller did not have a proper training plan or complete daily training logs;(3) that Mr McGowan visited one of the Claimant’s reports and gave them confusing advice;(4) that Mr McGowan breached the Rule Book with regard to an E5 signal, which put safety at risk, then sent a confrontational text to the Claimant;(5) that others had raised concerns regarding training, numbers of people present on the ops floor and short notice changes to shift patterns;(6) an individual complaining that they were on the roster as a link member of staff but had been told by Mr McGowan that they were in a relief position;(7) that Mr Hammett had received no training or handover note;(8) that Mr McGowan had behaved unprofessionally at the Local Business Review Meeting and that GWR had complained about him; and(9) that there were deficiencies in the training and competency arrangements for the new trainee signallers at Exeter Panel. The Claimant expressed that he considered the matters he raised to be serious issues which could compromise the safe and efficient running of the railway.[62]On the same day, 12 March 2021, Mr Kelly phoned the Claimant and asked him to attend a meeting with Mr McGowan the following Monday. Neither the Claimant nor Mr McGowan were happy to attend this meeting.[63]Mr Hammett sent an email to Mr Kelly on the morning of 15 March 2021 (page 1047), in which he stated that the Claimant had made nasty comments about Mr McGowan during the time Mr Hammet had been covering Mr McGowan’s role, and giving examples of the relevant comments.[64]The Claimant, Mr McGowan, Mr Kelly and Ms Alford attended a meeting later on 15 March 2021. The Claimant was asked to run through his concerns with Mr McGowan. The meeting notes show that Mr McGowan swearing at the Claimant during this meeting, saying “wanker” and “bullshit” (page 184). No response by Mr Kelly is noted to in relation to attempting to control Mr McGowan’s outbursts. Mr Kelly stated that he would investigate “everything that needs looking into” (page 189). He asked the Claimant to work from home for the rest of the week while things were worked out, save in relation to a safety brief with two of his signallers the following day.[65]On 22 March 2021, Wayne Dixon who had been seconded to the MOM role in Exeter, emailed Mr Kelly, Mr McGowan and Mr Russon referring to a strained relationship between Mr Dixon and Mr McNaughton (also a MOM) (page 221). In the email, Mr Dixon referred to an incident in which the Claimant had allegedly raised it being all over Facebook that Mr Dixon booking Wednesday night off to go to his daughter’s birthday party then training the following day being conveniently cancelled, and referring to this leaving Mr Dixon wide open for Mr McNaughton to have a go at him. Mr Dixon’s position was that the training had been legitimately cancelled due to COVID restrictions, but he was concerned about the relationship with Mr McNaughton.[66]On Wednesday, 24 March 2021 the Claimant met with Mr Kelly and Ms Alford in the Plymouth Panel meeting room. At this meeting he was informed that Mr Kelly had looked at the concerns raised by the Claimant and could not substantiate most of them, and that he had received a complaint from a MOM. As such a disciplinary investigation was being instigated against the Claimant and the Claimant would be suspended whilst this was ongoing (page 192). The Claimant was given a letter headed “suspension pending disciplinary investigation”, which set out that he was being investigated for alleged misconduct on the following grounds (page 190) “Made a vexatious claim against the Exeter LOM by saying that GWR had made a complaint against him. Made a vexatious claim against the Exeter LOM by claiming he had not followed procedure and not issued training packs to his trainees. Made a vexatious claim against the Exeter LOM by accusing him of not training a signaller correctly and not issuing a training pack (Paignton). Made a vexatious claim against the Exeter LOM by bringing unsubstantiated accusations of trainees being left unsupervised an insinuating this was the fault of the Exeter LOM. Made a vexatious claim against the Exeter LOM by pre-judging the outcome of a level 1 investigation. Breached the harassment policy by creating a hostile working environment by denigrating the Exeter LOM to the Exeter Deputy LOM. Breached the harassment policy by creating a hostile working environment by attempting to turn one MOM against another.”[67]The letter instructed the Claimant not to communicate with other employees without authorisation during his suspension. Disciplinary Investigation[68]Faith Carribine, Project Manager, Change Disciplinary and Grievance Investigations for the Respondent, was appointed as the disciplinary investigation manager. Ms Carribine phoned the Claimant and asked him to attend an investigation meeting. The formal invitation letter was sent on 31 March 2021 (page 195). The Claimant submitted a statement dated 1 April 2021 to Ms Carribine (page 196).[69]The first investigation meetings between Ms Carribine and the Claimant took place on 8 April 2021 (page 266). Rob Pym attended as the Claimant’s trade union representative and Ms Alford attended as a note taker.[70]In relation to the Paignton signaller, the Claimant explained that there had been an incident in which she had not recognised the emergency alarm, in discussions with her, she had told him that she did not think she had been given the training plan but thought there was one in the box and that she had not had daily training records (page 271), so this gave rise to the Claimant raising his concerns in the email in question. He explained that this dated back to the time of her being a trainee signaller, rather than at present. In relation to the allegation the Claimant had made regarding leaving trainees alone, the Claimant stated that Ian Rosewell had told the Claimant he had left the trainee alone (page 286).[71]The Claimant explained that his concerns regarding the handover arose out of comments made to him by Mr Hammett (page 287).[72]The Claimant explained that he had been put on a DAP and why (page 278). He stated that it was because of exceeding the role of LOM as well as interactions regarding an incident about an access gate not being closed.[73]The Claimant was clear in the meeting that he was not alleging that Simon Cassidy at GWR had made an official complaint but rather that this had been mentioned informally (page 285).[74]The Claimant explained that his motive regarding the email about Mr McGowan was to raise genuine concerns about serious safety issues (page 290) and said that he was raising these under the Respondent’s “Speak Out” policy (page 282 (its whistleblowing policy) and that he had done so in good faith.[75]During the meeting the Claimant (page 291) presented the Occupational Health report from September 2016 (page 1061). He read out contents and stated that many of the recommendations from that report had not been actioned by the Respondent. Ms Carribine’s immediate reaction was to say “This was in 2016. Its 2021 now” (page 292), going on to question the Claimant as to why he hadn’t followed it up with his line manager or take up “outlets” available. The Claimant explained to Ms Carribine that he wanted the report to be used to show that he had not been given the support he needed (page 293). Ms Carribine asked for Ms Alford to arrange an Occupational Health appointment for the Claimant.[76]During the meeting, Ms Carribine asked the Claimant the names of his trainees, which he provided (page 294). When the Claimant asked Ms Carribine why she needed their names, her response was “as part of the investigation”. This led the Claimant to believe that they would be interviewed as part of the investigation. Ms Carribine asked the Claimant whether there were any witnesses in regard to the allegations. The Claimant named Ian Rosewell, Alex Seal, Linda Roberts and Adrian Melmore (all of whom were Signallers in Exeter for the Respondent). In response Ms Carribine stated that she would speak to “a handful maybe random just to give an impression of what’s going on there at the office” (page 295).[77]Between 14 and 30 April 2021, Ms Carribine interviewed 13 individuals: Mr Dixon (page 206), Chris McNaughton (MOM) (page 234), Mr McGowan (page 245), Anthony Dawson (Team Leader) (page 298), Mr Seal (page 307), Mr Kelly (313), Ian Hawkins (Workforce Development Specialist) (page 327), Jenna Thomas (Technician) (page 334), Mr Hammett (page 337), Abigail Hitchcock (Signaller) (page 353), Mr Russon (page 364), Joshua Atkinson (Apprentice) (page 379) and Linda Roberts (Signaller) (page 382).[78]As such, of the four individuals named by the Claimant, two were not interviewed – Mr Rosewell and Mr Melmore.[79]In the interview with Mr Dixon on 14 April 2021, Ms Carribine asked Mr Dixon whether the Claimant had ever made anyone cry. Mr Dixon referred to Ms X who he said had cried on many occasions, but adding that she was a “sensitive lady”. Mr Dixon repeated the allegations made in his email of 22 March 2021, and forwarded the email on to Ms Carribine (see above at paragraph 65).[80]In the interview with Mr McGowan, he also referred to Ms X, saying that he had gone to see her because she was in tears and stated that she talked about what the Claimant “was doing to her”. Mr McGowan had spent two hours with her, and she had said that the Claimant told her to do things in a set way and then told her that she was doing it wrong (page 252 and 253). In further comments he also said that Ms X had on other occasions “burst into tears just talking about things” (page 253) and was “emotional anyway” (page 254).[81]Mr Hammett also referred to Ms X in his interview saying that he had to sit with her because she was petrified of the Claimant (page 346). He stated that she told him she felt that the Claimant was controlling her life, telling her what she can and cannot do, that she had suicidal thoughts. Mr Hammett stated that Ms X had declined to make it official because of the potential repercussions.[82]When Ms Carribine interviewed Ms X and asked her directly whether she was frightened of the Claimant, her answer was no (page 357), but she referred to worry about losing her job. Ms Carribine asked her whether she had felt suicidal and she stated did, giving the reason as “all the circumstances at the time, isolation, being [a] long way from family, having all contacts stopped by Darryl, having no visitors to the box, no anything else [sic], but a lot of it was Daryl badgering me a lot”. She gave examples of the Claimant calling her on a weekend off and saying he needed to talk right away, saying he would listen to all of her voice comms, telling her not to discuss things with other managers, telling her not to take up a volunteering opportunity, and telling her not to take walks with more than one person. Ms X also referred to the Claimant messaging her and others whilst in the signal box, saying that if you did not answer, he would phone.[83]In his interview, Mr McGowan also made some positive comments regarding the Claimant’s interactions with trainees in the office, saying that he would sit with them, working closely and explaining things to him. In relation to the allegation regarding the Claimant affecting the relationship between Mr Hammett and Mr McGowan, Mr McGowan’s comment was that the Claimant had caused Mr Hammett to doubt he could be Deputy LOM.[84]Ms Carribine asked Mr McGowan what he had done after receiving the 2016 Occupational Health report, and Mr McGowan stated that he arranged counselling, and that the counsellor gave the Claimant coping strategies if he became stressed.[85]In the interview with John Kelly (page 313), Mr Kelly told Ms Carribine that he had called Simon Cassidy at GWR who had denied making a complaint (page 318) and followed it up with an email (page 453). The picture of the email was incomplete but it appears that it referred to not making an official complaint. Mr Kelly said that he had asked to see the training packs of this team and that they were in place and thorough. Ms Carribine stated in oral evidence that she did not contact Mr Cassidy herself or review the training documents herself. She stated that she took Mr Kelly at his word, because he was a senior manager who was two grades higher than the Claimant and she had no reason to disbelieve him.[86]On 4 May 2021 Ms Carribine held a second disciplinary investigation interview with the Claimant (page 390). Mr Plym and Ms Alford were present again as trade union representative and note taker respectively. Ms Carribine questioned the Claimant in this meeting as to why he had not previously raised his Occupational Health Report of 2016, saying “we’re talking 5 years later and you’re bringing this up now” (page 397), and the Claimant said that it was because he felt he was doing well, and explained that he had raised it now because the report contained a number of things like the fact that he struggled when people did not follow rules. The Claimant referenced not realising that he was coming across in the way he did in relation to one of the situations discussed (page 406).[87]Ms Carribine began asking the Claimant about matters which were not set out in the allegations letter. When the Claimant said that as far as he was concerned he was present to answer the allegations in the letter, Ms Carribine responded saying “you are refusing to answer these questions as part of this investigation” (page 401). In a later exchange, Ms Carribine stated “can I ask you to be open and honest….you seem to be evasive of [sic] when I’m asking you questions” (page 415). When the Claimant referred to an apology, Ms Carribine asked if it was meaningful, and when the Claimant responded that it was, she pressed him asking if it was not just “lip service” (page 406). She made comments that the Claimant “should have known better” and that she was “disappointed” (page 439).[88]When the Claimant was asked about the allegations regarding Ms X, he disputed what had been said, saying that he had said that he would prefer Ms X not to volunteer rather than telling her she could not (page 424). The Claimant said that his motivation was that he had COVID related concerns and wanted to protect the signal box (page 425). He said that his texts were intended to be read on naturally occurring breaks (page 425). He explained that Ms X would often contact him with photos of her walking her dog and similar things. He strongly denied being controlling. In relation to walking, the Claimant said that he had raised it because she had posted pictures of walking with different people and told her to be careful, when she said it was only one person at a time, he had said “okay I take your point” (page 430). The Claimant reflected that in hindsight he should not have suggested what she did in her spare time. The Claimant denied telling Ms X not to speak to other managers and said that he was simply clarifying line management.[89]Despite Ms X having expressly said that she was not frightened of the Claimant, Ms Carribine told the Claimant that “from interviewing [Ms X] it became clear she’s quite scared of you”, the Claimant answered that he was upset to hear that and had not been aware of it (page 434).[90]During the course of her investigation, Ms Carribine 14 to 15 unsolicited phone calls from individuals who wish to report matters to her regarding the Claimant. Since it was supposed to be confidential that Ms Carribine was conducting a disciplinary investigation in relation to the Claimant it was unclear how these individuals knew who to contact. Ms Carribine did not take their names, ask them how they had got her details or take any details of what they want to report to her.[91]Ms Carribine decided that there was a disciplinary case to answer. She emailed the Claimant on 28 May 2021 (page 456) saying that she had concluded her investigation and that there was sufficient evidence for the case to proceed for gross misconduct. She stated that the disciplinary hearing manager would be in touch directly. The email did not attach the investigation report or set out the disciplinary allegations.[92]Ms Carribine completed her investigation report before receiving the updated Occupational Health advice in relation to the Claimant dated 22 July 2021 (this finding is based on Ms Carribine’s oral evidence). In fact, the updated advice very much reflected the same evaluation as it had in 2016, stating “Management is advised that it is likely that Mr Milford may not fully realise that his somewhat abrupt and direct communication style may not be received well by colleagues.” (page 473). The report stated “It is my opinion that he is a proactive and reflective individual and therefore adjustments which are proactive and reflective should be implemented. To that end, it would be recommended that management consider some form of mentoring role for Mr Milford within the workplace, i.e., [sic] a trusted work colleague who could guide him in regard to his communication style and understanding the nuances and inferences from information provided to him. I anticipate that this will be required with the degree of regularity” (page 474). In relation to prognosis, the report made clear that the Claimant’s severe depression was likely to improve following conclusion of any disciplinary procedure (page 474).[93]Whilst Ms Carribine had completed the investigation report in mid 2021, it was not issued to the Claimant for over a year. In August 2022, Ms Carribine corrected some referencing in the report, and the completed report was added to the Claimant’s file on 16 August 2022 (page 1073). In it, she set out a narrative in the report, which stated as facts matters that were disputed by the Claimant. Ms Carribine did not frame these as “alleged” facts or explain why she had decided to prefer the evidence of others over that of the Claimant.[94]The report included the new allegation in relation to Ms X, which had not been included in the initial disciplinary investigation invitation. This stated that “it became apparent that Darryl was trying to control [Ms X] inside and outside of work…she was visibly upset about the treatment she had received from Daryl but powerless to stop it happening, she stated at times she felt very isolated and at times suicidal. Daryl was breaking down her communication channels, by not letting her speak to other colleagues. Daryl wasn’t happy with her talking to Chris McGowan and he also stated that he would be listening to her voice comms.” (page 1078).[95]The report stated “He would call her whilst she was off duty and state it wasn’t important, then state it could wait until Monday this would worry Ms X. Because she was so worried and fearful of him, Ms X would drive over and see him, due to the concern he had, even when she wasn’t working. Upon arrival he would ask Ms X to listen to voice comms over a driver in the section.” (page 1078). This refers to one incident but is phrased as though it happened on a number of occasions.[96]Although the 2016 Occupational Health Report (page 1061) was appended to the report, there was no mention of its content in the body of the report. The report did not mention that Ms Carribine and had received unsolicited phone calls from a significant number of people. Commencement of Disciplinary Procedure[97]Initially Gary Allison (Route Operations Manager) was appointed as the disciplinary manager. In a letter dated 22 June 2021 (page 465), he wrote to the Claimant setting out the alleged acts of gross misconduct which were to be considered in the disciplinary procedure. The allegations were as follows.a. “That by sending an email to Craig Russon and John Kelly dated 12 March 2021, detailing false statements about Chris McGowan, you have attempted to cause Chris distress and to discredit him with his line manager, this in breach of Network Rail’s Harassment policy.b. That in your conversations with Kevin Hammet you were disrespectful about Chris McGowan’s ability to manage his team and workplaces, and you were also disrespectful about the trainee signallers. By making these comments about colleagues you have created a hostile working environment in breach of Network Rail’s Harassment policy.c. That you were aware that there was a strained working relationship between Wayne Dixon and Chris McNaughton. On or around 9 March 2021, you have made comments to Wayne to upset him, about what Chris would say or do in a situation, and by saying this you have attempted to make their working relationship more uncomfortable for both parties. As a result, you have created a hostile working relationship between them.d. That you were disrespectful to Craig Russon and made inappropriate comments about his ability to manage and or do his job. Craig found this very upsetting and did challenge your behaviour, however you still continued to upset him, this is in breach of the Harassment Policy.e. That you have deliberately undermined Craig Russon’s authority by not consulting with him or gaining his approval as required, for some work activities, and or being told not to do something and doing it anyway. This is considered to be a serious breach of trust and confidence.f. That on 13 October 2021 you were abusive toward Jenna Thomas and Anthony Dawson by shouting at them after they had used the toilet, despite them having permission to do so. This led to Ms Thomas becoming so upset that she went home early, and the scheduled work activities were not completed. This is in breach of Network Rail’s Harassment policy.g. That your behaviour towards one of your direct reports [Ms X], was unacceptable and intimidating and this constitutes bullying and harassment in breach of the Harassment policy.”[98]The Claimant was invited to a disciplinary meeting on 9 July 2021. The letter referred to enclosing the findings of the disciplinary investigation as well as a copy of the evidence gathered, but did not enclose any documents. This exacerbated the Claimant’s feelings of anxiety and depression as he was not able to see the evidence against him.[99]The Claimant had submitted 19 formal grievances to the Respondent within four days at the beginning of June 2021, submitting a further six at the end of June. In total the Claimant submitted 45 formal grievances (pages 106 to 160). The Claimant labelled these with numbers to identify them. The letter dated 22 June 2021 (page 465) set out that Mr Allison would also consider the Claimant’s grievances regarding the disciplinary investigation as part of the disciplinary process.[100]On 1 July 2021, the Claimant received a call from Mr Allison and it was discussed that the evidence had not being included. The Claimant requested that the evidence be sent by email to his trade union representative, Mr Pym, which Mr Allison said that he would action. However Mr Allison stated that it would be too difficult to send it to the Claimant in the post as it was too large. No such email was received by Mr Pym. For this reason, the Claimant informed his welfare manager, Ms Connor, on 2 July 2021 that the hearing could not go ahead. On 9 July 2021, Ms Connor informed the Claimant that Mr Allison had stepped down because he had been incorrectly told it was an “open and shut” case. After this, the Claimant received no further communication about the disciplinary process for over a year.[101]On 26 July 2021, the Claimant wrote an email directly to Mike Gallop (Western Route Director). In that email, the Claimant wrote to challenge his suspension (page 475). In addition, the Claimant stated that he understood that Mr Allison had stepped down as disciplinary manager, but he had not been informed of this officially or formally. Duncan Lovatt Grievance Investigation[102]Duncan Lovatt was appointed to hear those of the Claimant’s grievances that related to the disciplinary investigation, grievances 001 to 008, 013, 014 and 015 (at pages 106-115, 121, 122, 123). Darren Bullock was appointed to hear the grievances which were not related to the disciplinary investigation. Complaints that related to the behaviour of a trade union representative were assigned to Paul Smith (Seasonal and Operations Manager, Bristol).[103]Mr Lovatt wrote the Claimant a letter dated 26 July 2021, which was received by the Claimant on 28 July 2021. The letter invited the Claimant to a grievance meeting on 19 August 2021. On the same day, the Claimant had received a letter from Mr Bullock inviting him to grievance meetings on 17 and 18 August 2021 (see below). The Claimant was asked to inform Mr Lovatt of any witnesses and the identity of his trade union representative by 28 July 2021, the same day as the Claimant received the letter. This exacerbated the Claimant’s feelings of anxiety and depression as it was insufficient time for him to arrange for witnesses to be called.[104]The Claimant emailed Mr Lovatt on 28 July 2021 (page 479) saying that he was scheduled to attend grievance hearings on 17 and 18 August with Mr Bullock (see below), and that due to his “current acute mental health issues” he would not be up to attending a third consecutive day particularly as all of these meetings involved travelling over one and half hours each way. Mr Lovatt responded by letter dated 9 August 2021 to reschedule the meeting (page 482), inviting the Claimant to a meeting on 7 September 2021. The letter stated “If your representative is another employee, however, please let me know by 19 August 2021 so they may be released from duty to attend the hearing”. The Claimant emailed Mr Lovatt on 11 August 2021 saying “I wish for Rob to attend the meeting on seventh September, with me.” (Page 484). However the Claimant discovered that Mr Pym had not been released, and he wrote to Mr Lovatt on 6 September 2021 (page 510), saying that the meeting could not therefore go ahead.[105]On 15 September 2021 Mr Lovatt emailed a further invitation to the Claimant (page 537) for a meeting on 27 September 2021. On 22 September 2021 Mr Lovatt sent an email saying that the meeting date was wrong and should have said 28 September 2021 (page 536). The Claimant felt this change was short notice and it caused him further stress and anxiety, and he took extra medication as a result (page 535). The Claimant could not attend due to childcare issues. A further meeting invitation invited the Claimant to meetings on 12 and 13 October 2021 (page 556). Mr Lovatt’s father contracted COVID on 11 October 2021. Mr Lovatt was unsure as to whether he was affected and did not cancel the meetings until the morning of 12 October 2021, by which time the Claimant was already on the train to the meeting. Once again this caused the Claimant stress and anxiety. Eventually the grievance meeting took place on 19 November 2021.[106]Mr Lovatt sent the grievance outcome letter to the Claimant on 11 January 2022 (page 669) including the grievance report. Mr Lovatt did not uphold any of the Claimant’s grievances. Grievance Investigation: Darren Bullock[107]In July 2021 Mr Bullock was assigned to hear the Claimant’s grievances which were unrelated to the disciplinary procedure.[108]Mr Bullock wrote to the Claimant by email on 22 July 2021, inviting the Claimant to three grievance meetings on 4 August 2021, 17 and 18 August 2021 (page 531). However the Claimant’s trade union representative, Rob Pym, could not be released on 4 August 2021. Mr Bullock wrote a further letter to the Claimant dated 26 July 2021, which the Claimant received on 28 July 2021, inviting the Claimant to two grievance meetings on 17 and 18 August 2021 only (page 477). The letter stated that the Claimant should provide any further evidence that should be considered and advised Mr Bullock of any required adjustments by 28 July 2021, the same day he had received the letter. The grievance meeting took place as planned on 17 and 18 August 2021.[109]Mr Bullock interviewed Mr Russon on 15 September 2021 as well as Mr Rosewell, Mr Kelly and Mr Hammett on 28 September 2021.[110]A further grievance meeting between Mr Bullock in the Claimant was scheduled for 22 November 2021. As the Claimant entered reception he met Mr Dixon who was just leaving the same office and they passed each other without comment. Mr Dixon had been attending a meeting with Mr Smith (see below). In arranging the meeting with the Claimant Mr Bullock was not aware that Mr Dixon was likely to be in the vicinity. Meeting Mr Dixon caused the Claimant distress and he was not able to continue with the meeting.[111]Mr Bullock conducted a further grievance meeting with the Claimant on 29 November 2021.[112]Mr Bullock sent the Claimant his grievance outcome report on 1 March 2022 (page 741). He did not send the Claimant the minutes of the grievance meeting which took place on 17 and 18 August 2021 until 15 March 2022 (page 866). Grievance Investigation: Paul Smith[113]As set out above, complaints that related to the behaviour of a trade union representative were assigned to Paul Smith (Seasonal and Operations Manager, Bristol).[114]It is unclear when the event itself happened, but in a grievance investigation interview between Mr Smith and Mr Dixon on 22 November 2021, Mr Dixon stated that he “was in the car with Kathryn Connor one says [sic], she said she had a welfare meeting with Daryl Milford, I said to her that she needs to be careful, and that Daryl Milford is very manipulative. I am aware that Kathryn Connor is a welfare manager for Daryl Milford” (page 628). Grievance Appeals[115]On 13 January 2022, the Claimant appealed the outcome of the grievances dealt with by Mr Lovatt. Daniel Recchia (Senior Programme Engineering Manager, Swindon) heard the appeal and held appeal meetings with the Claimant on 8 and 29 April 2022. Mr Recchia delivered the outcome in writing on 6 July 2022 (page 1006). Mr Recchia upheld one ground of appeal and partially upheld five grounds of appeal. As a result two of the allegations raised in the disciplinary investigation were not taken forward because it was found that they had already been dealt with in the DAP. The two allegations which were not taken forward are those set out above at paragraphs 97.d and 97.e.[116]The Claimant appealed the outcome of grievances dealt with by Mr Bullock on 10 March 2021. Mr Terry (Head of Continuous Improvement, Southwestern Basingstoke) was appointed as the grievance appeal manager. He held meetings with the Claimant on 28 April 2022 and 13 May 2022. Mr Terry issued the appeal outcome on 12 August 2022 (page 1063). Mr Terry did not uphold any of the appeal points. Continuation of Disciplinary Procedure[117]On 17 August 2022 Mr Lovatt wrote to the Claimant (page 1149) requiring him to attend a disciplinary hearing to take place on 16 September 2022. This letter enclosed the disciplinary investigation report and evidence. The allegations which remained were as follows.a. That by sending an email to Craig Russon and John Kelly dated 12 March 2021, detailing false statements about Chris McGowan, you have attempted to cause Chris distress and to discredit him with his line manager, this in breach of Network Rail’s Harassment policy.b. That in your conversations with Kevin Hammet you were disrespectful about Chris McGowan’s ability to manage his team and workplaces, and you were also disrespectful about the trainee signallers. By making these comments about colleagues you have created a hostile working environment in breach of Network Rail’s Harassment policy.c. That you were aware that there was a strained working relationship between Wayne Dixon and Chris McNaughton. On or around 9 March 2021, you have made comments to Wayne to upset him, about what Chris would say or do in a situation, and by saying this you have attempted to make their working relationship more uncomfortable for both parties. As a result, you have created a hostile working relationship between them.d. That on 13 October 2021 you were abusive toward Jenna Thomas and Anthony Dawson by shouting at them after they had used the toilet, despite them having permission to do so. This led to Ms Thomas becoming so upset that she went home early, and the scheduled work activities were not completed. This is in breach of Network Rail’s Harassment policy.e. That your behaviour towards one of your direct reports [Ms X], was unacceptable and intimidating and this constitutes bullying and harassment in breach of the Harassment policy.”[118]On 23 August 2022 the Claimant became aware that his job was being advertised as a permanent position. When the Claimant raised this with the Respondent the position was immediately removed. This gave the Claimant reason to think that the disciplinary procedure was prejudged, causing him further stress and anxiety. The Respondent did not put forward a positive case as to who had put the advertisement online, why they had done so or how it had come about. Ms Carribine denied any knowledge even of the systems in place at the Respondent and was not able to assist the Tribunal with the process of how adverts would be placed, although she described systems at other workplaces that she had been aware of.[119]The disciplinary meeting took place on 30 September 2022 (page 1192). During this meeting the Claimant raised that an error had been made in relation to the date of the allegation in relation to Ms Thomas and Mr Dawson given he was suspended from work on 13 October 2021. Mr Lovatt decided to remove this allegation from the allegations being pursued against the Claimant as part of the disciplinary procedure.[120]Later on 30 September 2022, Mr Lovatt received an email from Ms X’s new line manager (page 1249), which he took into account in making his decision without giving the Claimant an opportunity to comment on it.[121]In a letter dated 19 October 2022 Mr Lovatt set out the outcome of the disciplinary procedure (page 1259). He decided to summarily dismiss the Claimant with effect from 19 October 2022. This was received by the Claimant on 21 October 2022.[122]Mr Lovatt did not uphold the original allegation regarding vexatious complaints about Mr McGowan on 12 March 2021. He upheld three allegations as follows:a. the allegation that the Claimant was disrespectful about Mr McGowan’s management ability in about trainee signallers in a conversation with Mr Hammet was upheld. This finding was based partly on concessions by the Claimant as well as on being consistent with the evidence of other witnesses regarding the Claimant’s behaviour;b. the allegation that the Claimant deliberately made a strained relationship between Mr Dixon and Mr McNaughton worse. Although the Claimant had denied making the comments, Mr Lovatt found that he had made them since Mr Lovatt considered that statements from Mr McGowan, Mr Russon and Mr Hammett indicated that the Claimant was making a strained relationship worse;c. the allegation that the Claimant’s behaviour towards Ms X was unacceptable and intimidating and constituted bullying and harassment in breach of the harassment policy was upheld.[123]The final allegation, the Claimant’s behaviour towards Ms X, was considered by Mr Lovatt to be the most serious of the allegations and was the basis for the summary dismissal decision. Mr Lovatt denied in cross examination that the primary driver for the summary dismissal decision was the allegation regarding Ms X in oral evidence, however the Tribunal did not find this evidence credible and preferred the contemporaneous language of the dismissal letter at page 1261, which stated in relation to this allegation “This was such a serious breach of your obligations that it calls for dismissal without notice and without any further warnings.” (emphasis added).[124]The interviews contained within the disciplinary investigation made it clear that despite a number of managers being aware of the effect on Ms X, neither they nor Ms X raised this with the Claimant. The Claimant also stated clearly that he had not been aware of the effect on Ms X. The Claimant’s explained in his interview that his motivation for some comments to Ms X was that he was concerned about the risk of COVID being brought to the signal boxes.[125]The disciplinary outcome letter does not refer to awareness, motivation or intention in considering blameworthiness, based on this and Mr Lovatt’s responses in cross examination, the Tribunal consider these were not considered by Mr Lovatt. Mr Lovatt’s focus was the effect of the alleged conduct on Ms X.[126]The Claimant’s occupational health report of 2016 (page 1061) was included in the evidence appended to the Investigation Report (at appendix 20, see page 1081), and was referred to in the disciplinary hearing by the Claimant (page 1230). The Claimant explained that as a result of stress he could come across as being more emotional and that the Occupational Health report had stated that the Respondent should provide him with support which the Claimant had never received. When questioned about the document, Mr Lovatt recalled to seeing it as part of the grievance process but did not refer to considering it as part of the disciplinary process. There was no mention of the 2016 Occupational Health report, or indeed the updated report in the disciplinary outcome letter. The Tribunal finds that Mr Lovatt did not take into account the report or the fact that the Claimant had not received the recommended support in terms of training and mentoring recommended by Occupational Health in making his disciplinary decision.[127]The Tribunal finds that Mr Lovatt did not consider the grievance investigation report critically based on his answers given during cross examination. For example, despite being aware that the Claimant’s position was that Mr Dixon had sought to obtain negative evidence about the Claimant, and despite being aware that Ms Carribine had received 14 to 15 calls to “report” the Claimant’s behaviour, Mr Lovatt did not seek to question the decision to exclude that information from the investigation report, or question how it might affect the veracity of the evidence.[128]Mr Lovatt made clear in oral evidence that he did considered the Claimant’s 31 years of service was “not particularly relevant” to the disciplinary process. Neither the length of service nor lack of other disciplinary sanctions during his career was referred to in Mr Lovatt’s decision letter. The Tribunal finds that Mr Lovatt did not take them into account in deciding the appropriate sanction.[129]Mr Lovatt was aware of the DAP addressing similar behaviour through the grievance procedure. Mr Lovatt did not request the DAP in order to consider the likelihood that the Claimant’s behaviour could improve (as it had done during the DAP). Mr Lovatt’s evidence was that he considered it was for the Claimant to raise this, rather than for Mr Lovatt to seek out. Mr Lovatt did not take into account other roles which the Claimant had successfully undertaken during his long career with the Respondent. The Tribunal find that Mr Lovatt did not turn his mind to the possibilities of alternatives to dismissal at all. Although Mr Lovatt gave evidence that he had considered alternatives to dismissal, the Tribunal did not find his evidence on this to be credible. The Tribunal was of the view that if this had been considered, given its importance, Mr Lovatt would have referred to it in the disciplinary outcome letter. Dismissal appeal[130]The Claimant appealed his dismissal on 21 October 2022 (page 1263). The key points in his appeal were as follows:a. the disciplinary meeting had not been reconvened;b. the disciplinary sanction was not explained in a meeting;c. the decision wasn’t confirmed within 8 calendar days;d. there were other delays in the process;e. that the allegations were one persons word against another, but Mr Hammett had been believed and that the Claimant “presented extensive evidence to you on my mental health situation and how I had not been given adequate support” ;f. there was no conclusive evidence regarding the Wayne Dixon and Chris McNaughton allegation and the relevant hostile environment already existed;g. Ms X had been believed over the Claimant, and it didn’t make any sense that she had asked for a transfer for safety reasons as the request was after the Claimant’s suspension. That it had been ignored that several managers were aware of Ms X’s concerns but took no action;h. further evidence had been sought in relation to Ms X which was a breach of policy;i. that the Claimant had been assured that only evidence in the evidence pack had been relied on, and that Ms X’s own statement that she was not afraid of him had not been taken into account;j. closed disciplinary matters had been taken into account;k. that the severity of the punishment was too severe and that demotion/transfer should have been considered.[131]Martin Robinson (Programme Director for the Respondent), an independent manager, was appointed to be the disciplinary appeal manager. The Claimant was invited to attend a disciplinary appeal meeting on 10 November 2022 (page 1268). The Claimant attended the meeting accompanied by a trade union representative.[132]During the meeting the Claimant read from the 2016 Occupational Health report and stated that it had recommended support by way of counselling, reflective learning and regular support from a trusted mentor. “I do get emotive when rules and procedures aren’t being followed. Network Rail has not supported me, known since 2016…. No mentor– that was the main part.” (page 1302). Mr Northey said that the “key point is the business has that report, identified a number of key points… There was something missing to support that… Failing of the organisation” (page 1302). Later in the discussions regarding occupational health, Mr Robinson stated “to confirm nothing we talked about is new evidence, correct?” (page 1303).[133]The Claimant emailed Mr Robinson various further items of evidence following the meeting. This included the occupational health reports of 20 September 2016 (page 1061) (for relevant content see paragraph 51 above), 5 May 2021 (page 441), 22 July 2021 (page 470) (for relevant content see paragraph 92 above) and 3 October 2022 (page 1256). The latter two dealt primarily with whether the Claimant was fit to work, and did not address matters relevant to the disciplinary allegations.[134]The appeal hearing was reconvened to 9 December 2022. The Claimant’s trade union representative was not able to attend the reconvened disciplinary appeal meeting, but wrote an email to Mr Robinson on the morning of that day (9 December 2022) making some representations, in particular saying the following. “The occupational health reports in 2016/17 identified that Daryl’s mental health was in concern and he need help and support (reasonable adjustments) but these weren’t forthcoming at the time and the latter report more recently also identified the same points. This is crucial in this case in that, if some form of intervention which might have lead to reasonable adjustments been put in place, would we be here today?” (page 1341)[135]Mr Robinson was clear in oral evidence that the Claimant’s behaviour towards Ms X, was considered by Mr Robinson to be the most serious of the allegations. He was unwilling to answer the question as to whether there would have been a summary dismissal decision without that allegation, but the Tribunal considered that the totality of the evidence indicated that there would not have been.[136]In cross examination, Mr Robinson seemed to summarise his decision as “no new evidence that changed the outcome”. It was clear from his answers in cross examination that he had not turned his mind to the Claimant’s knowledge of wrongdoing. Mr Robinson said that he did not know “for a fact” that the Claimant had not been told about the effect he was having on the Claimant. Mr Robinson agreed that it was important to know if anyone had fed that back to the Claimant, and that there were individuals who could have been asked about whether they had done so. However Mr Robinson had not asked them these questions. In this exchange he also commented that “you have to take responsibility for your actions”.[137]It was also clear Mr Robinson had not considered the Claimant’s motives. When challenged as to how it was fair to dismiss someone who does not know they have done something wrong, his response was “I don’t know that they didn’t know they’d done wrong. I don’t know that there was no opportunity to change behaviour. Nothing new that he provided which changed what they had done before.”.[138]The notes of the meeting in which Mr Robinson communicated the outcome to the Claimant include an exchange in relation to Occupational Health reports: “MR – Item E – Occupational Health report, dated 3rd October 2022. Within this report it mentions work related stress, that may be considered a disability. Goes on to say that support has been provided. DM – sorry? No it doesn’t. MR – it says support has been provided in the OH report – 3rd October (see OH report). “He informed me he had received some support”. DM – support by who? Doesn’t say. That has nothing to do with what I have sent. MR – the point I am trying to make is this report does not change the fact and does [not] mitigate for your behaviour towards your colleagues. DM – other reports read? MR – they are very similar. There is nothing in these reports that mitigates your behaviour to colleagues, including [Ms X]. Nothing changes my view on this case.” (p1336 and 1337)[139]Mr Robinson did not uphold the Claimant’s dismissal appeal. There is no reference to the Occupational Health report or the suggested support in the appeal outcome letter (page 1331). Suspension[140]The Claimant was suspended pending investigation on 14 March 2021 (page 190). The Claimant’s suspension was reviewed by Mr Kelly on 23 April 2021 who continued it on the basis that there was “reason to suspect that further offences may occur” (page 264). Derek Buist acting Operations Manager sent another suspension review letter in near identical terms on 17 May 2021 (page 449), 14 June 2021 (page 457), 15 July 2021 (page 468), 13 August 2021 (page 485), 13 September 2021 (page 513), 18 October 2021 (page 572), 19 November 2021 (page 625), 13 December 2021 (page 667), 13 January 2022 (page 696), 16 February 2022 (page 729), 16 March 2022 (page 876), 19 April 2022 (page 899), 19 May 2022 (page 963), 20 June 2022 (page 993), and 21 July 2022 (page 1016).[141]On 26 July 2021, the Claimant emailed Mr Gallop to challenging his continued suspension on numerous grounds, requesting to be returned to alternative roles. He stated: “I have been suspended from duty for over 4 months. I feel increasingly isolated. My mental health has suffered considerably and has continued to deteriorate, to such an extent that my GP has diagnosed me with severe depression and anxiety. I have been prescribed anti-depressants and a course of CBT has been arranged. My mental health continues to suffer” (page 476).[142]The Occupational Health report dated 26 May 2022 also reported the Claimant is saying “delays in bringing a conclusions the matter is further impacting upon his mental well-being… remaining off work any longer is likely to exacerbate his symptoms of anxiety and depression” (page 966).[143]The letter of 9 June 2022 (page 969) was in a different format to the ones referred to at paragraph 136 above. It set out that Mr Buist had considered opportunities for returning to a different role, saying that this was “due to the reasons for your original suspension”. This also stated “I fully appreciate that by returning to work could help your current health, I am also very happy that the doctor has advised you that you are fit to work, however, as stated above, there is [sic] currently no options to do this at the moment.”[144]Simon Ponter (Training and Competency Manager Regions) was appointed as temporary suspension manager as Mr Buist was off work with illness. He stated that he had done a more in-depth review of the suspension as the Claimant had now “been suspended for a significant time”. His letter dated 5 September 2022 (page 1125), referred to a disciplinary hearing taking place on 9 September 2022. It gave similar reasons as previous letters for considering that the suspension should remain in place. He also stated: “I note that your suspension has continued for a very lengthy period, and I am advised that you have raised over 40 grievances, covering a wide range of issues. These have taken a considerable amount of time to be investigated and concluded at appeal stage, before it was appropriate to invite you to the disciplinary hearing. Dealing with these grievances has directly led to the duration of your suspension.” (Page 1126)[145]Mr Ponter’s wrote to the Claimant again on 28 September 2022 saying his previous deep review and the terms remained the same (page 1182). The format of the letter was repeated in another letter from Mr Ponter on 3 October 2022 (page 1250). The Law Unfair dismissal
The Law
[146]The reason for the dismissal was conduct which is a potentially fair reason for dismissal under section 98 (2) (b) of the Employment Rights Act 1996 (“the Act”).[147]The Tribunal must then determine whether the dismissal was fair or unfair pursuant to section 98 (4) of the Act which provides that: “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”.[148]The Tribunal must apply the range of reasonable responses which was summarised by Mr Justice Browne-Wilkinson test in Iceland Frozen Foods Ltd v Jones 1983 ICR 17, EAT,: “We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”[149]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. Applying British Home Stores Limited v Burchell 1980 ICR 303, EAT, a helpful approach in most cases of conduct dismissal is to identify three elements (as to the first of which the burden of proof is on the employer; as to the second and third, the burden is neutral):(i) that the employer did believe the employee to have been guilty of misconduct;(ii) that the employer had in mind reasonable grounds on which to sustain that belief; and(iii) that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. Applying Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588, the band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.[150]When considering whether a dismissal on the grounds of conduct is fair, it is important to consider only matters which the employer was aware of at the time of the dismissal; the question is whether the employer reasonably concluded that the misconduct occurred at the time of dismissal, not whether the misconduct actually happened (Devis (W) & Sons Ltd v Atkins [1977] HL).[151]Whilst there can be conduct so serious that dismissal is appropriate irrespective of length of service, however in other cases it will be a relevant factor in considering whether dismissal is an appropriate response to the conduct in question Strouthos v London Underground Ltd 2004 IRLR 636, CA.[152]Brito-Babapulle v Ealing Hospital NHS Trust 2013 IRLR 854, EAT, even where there has been gross misconduct, the Tribunal must consider whether mitigating factors rendered the dismissal unfair. In that case long service, the consequences of dismissal and having a previously unblemished record should have been considered as mitigating factors.[153]Defects in the original disciplinary procedures may be remedied on appeal as long as the appeal is sufficiently thorough to cure the earlier substantive or procedural shortcomings (Taylor v OCS Group Ltd 2006 ICR 1602, CA and Khan v Stripestar Ltd EATS 0022/15). ACAS Uplift[154]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out that “If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a)the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b)the employer has failed to comply with that Code in relation to that matter, and (c)that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%”. In this case it is the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 (“the ACAS Code”) which is relevant. Contributory fault[155]Compensation for unfair dismissal is dealt with in sections 118 to 126 inclusive of the Act. Section 122(2) of ERA sets out that reductions may be made to the basic award where: “the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”[156]In Steen v ASP Packaging Ltd 2014 ICR 56, EAT, the EAT, summarising the correct approach under section 122(2), held that: “The application of those sections to any question of compensation arising from a finding of unfair dismissal requires a Tribunal to address the following:(1) it must identify the conduct which is said to give rise to possible contributory fault,(2) having identified that it must ask whether that conduct is blameworthy... the Tribunal has to ask whether it is just and equitable to reduce the amount of the basic award to any extent”[157]The focus for this assessment is on what the employee actually did or failed to do, not on the employer’s assessment of how wrongful that act was. It is a matter of fact for the Employment Tribunal to establish and, if established, it is for the Employment Tribunal to evaluate.[158]As to the question of whether the conduct is blameworthy, the Court of Appeal in Nelson v BBC (No.2) 1980 ICR 110, CA gave the following guidance “The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use the colloquialism, bloody-minded. It may also include action which, though not meriting any of those more pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend on the degree of unreasonableness involved.”[159]The compensatory award is governed by sections 123 and 124 ERA. In particular section 123 says, where relevant:(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable and in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.(2) The loss referred to in subsection (1) shall be taken to include – (a) Any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) Subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. … (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales… (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.[160]Steen also dealt with section 123(6) of ERA, and noted that the same considerations are relevant as to 122(2) save that “The Tribunal must ask for the purposes of section 123(6) if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did not do so to any extent there can be no reduction on the footing of section 123(6), no matter how blameworthy in other respects the Tribunal might think the conduct to have been. If it did cause or contribute to the dismissal to any extent then the Tribunal moves to the next question, (4). 14. This, (4) is to what extent the award should be reduced and to what extent it is just and equitable to reduce it.” Polkey[161]Polkey v A E Dayton Services Ltd [1988] ICR 142 HL laid down the concept that if a finding of unfair dismissal is made as a result of an unfair procedure, then the tribunal should consider the likelihood that the employee would have been dismissed in any case had a fair procedure been followed. Considering and applying Software 2000 Ltd v Andrews and ors 2007 ICR 825, EAT the Tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal. O’Donoghue v Redcar and Cleveland Borough Council 2001 IRLR 615, CA, confirmed that the principles established in Polkey also apply in cases where there is substantive rather than procedural unfairness: “If the facts are such that an [employment] tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis.” Failure to make reasonable adjustments[162]This is also a claim alleging discrimination because of the Claimant's disability under the provisions of the Equality Act 2010 (“the EqA”). The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges a failure by the Respondent to comply with its duty to make adjustments and harassment related to disability.[163]The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person. In this case, it was determined at a previous Preliminary Hearing on 3 November 2023 that the Claimant was disabled by reason of anxiety and depression from May 2021 until his dismissal in October 2022 (page 77).[164]The provisions relating to the duty to make reasonable adjustments are to be found in sections 20 and 21 of the EqA. The duty comprises of three requirements, of which the first is relevant in this case, namely that 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, there is a requirement to take such steps as it is reasonable to have to take to avoid that disadvantage. A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. A discriminates against a disabled person if A fails to comply with that duty in relation to that person. However, under paragraph 20(1)(b) of Schedule 8 of the EqA A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know –(a) in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; or(b) … that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.[165]The constituent elements of claims in respect of an alleged failure to make reasonable adjustments are set out in Environment Agency v Rowan [2008] IRLR 20 EAT. Before considering whether any proposed adjustment is reasonable, the Tribunal must identify:(i) the provision, criterion or practice applied by or on behalf of the employer;(ii) the identity of the non-disabled comparators (where appropriate); and(iii) the nature and extent of the substantial disadvantage suffered by the claimant.[166]Rowan has been specifically approved by the Court of Appeal in Newham Sixth Form College v Sanders [2014] EWCA Civ 734 the authorities make it clear that to find a breach of the duty to make reasonable adjustments, Tribunal had first to be satisfied that there was a PCP which placed the disabled person at a substantial disadvantage in comparison with persons who were not disabled. The Tribunal had then to consider the nature and extent of the disadvantage which the PCP created by comparison with those who were not disabled, the employer's knowledge of the disadvantage, and the reasonableness of proposed adjustments.[167]As per HHJ Richardson at para 37 of General Dynamics Information Technology Ltd v Carranza UKEAT/0107/14 KN: “The general approach to the duty to make adjustments under section 20(3) is now very well-known. The Employment Tribunal should identify(1) the employer's PCP at issue;(2) the identity of the persons who are not disabled with whom comparison is made; and(3) the nature and extent of the substantial disadvantage suffered by the employee. Without these findings the Employment Tribunal is in no position to find what, if any, step it is reasonable for the employer to have to take to avoid the disadvantage. It is then important to identify the "step". Without identifying the step it is impossible to assess whether it is one which it is reasonable for the employer to have to take”.[168]In Nottinghamshire City Transport Ltd v Harvey [2013] EqLR 4 EAT, the EAT found that the Tribunal had erred by identifying the one off application of a flawed disciplinary process to the Claimant as something falling within a PCP: ““Practice” has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply….19. Given the fact, as it is conceded by Mrs Parkes to be, that there was no evidence here that the employer made a practice of holding disciplinary hearings in a way that eliminated consideration of mitigation or in a way in which there was no reasonable investigation, it seems to us that there was no sufficient evidence to show that the application of the Respondent's disciplinary process in the case of the Claimant was a provision, criterion or practice. It was something that represented unfair treatment of him, as the finding by the Tribunal in respect of unfair dismissal recognises, but not all unfair treatment involves a failure to adjust that which is a provision, criterion or practice.20. … A one-off application of the Respondent's disciplinary process cannot in these circumstances reasonably be regarded as a practice; there would have to be evidence of some more general repetition, in most cases at least.”.[169]In Ishola v Transport for London [2020] EWCA Civ 112, the Court of Appeal confirmed this approach: “37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010 , all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.39. In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to "practice" as having something of the element of repetition about it. In the Nottingham case in contrast to Starmer , the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.”[170]As set out in Thompson v Vale of Glamorgan Council EAT 0065/20 by the EAT: “The Tribunal should identify the nature and extent of the “substantial disadvantage” caused by a PCP before considering whether any proposed step was a reasonable one to have to take… There must obviously be some causative nexus between disabilities relied on and the “substantial disadvantage”; the tribunal should look at the “overall picture” when considering the effects of any disabilities.”[171]The duty to make adjustments only arises in respect of those steps that it is reasonable for the employer to take to avoid the disadvantage experienced by the disabled person. What is a reasonable step for an employer to take will depend on all the circumstances of each individual case. The test of reasonableness in the context of section 20 EqA is an objective one and is for the Tribunal to determine on its own assessment of the relevant factors.[172]Paragraph 20(1) of Schedule 8 to the EqA provides that a person is not subject to the duty to make reasonable adjustments if he or she does not know, and could not reasonably be expected to know…that an interested disabled person has a disability and is likely to be placed at a disadvantage by the employer’s provision, criterion or practice (PCP)[173]Knowledge is not limited to actual knowledge but extends to constructive knowledge (i.e. what the employer ought reasonably to have known). In view of this, the EAT has held that a Tribunal should approach this aspect of a reasonable adjustments claim by considering two questions:a. first, did the employer know both that the employee was disabled and that the disability was liable to disadvantage the employee substantially?b. if not, ought the employer to have known both that the employee was disabled and that the disability was liable to disadvantage the employee substantially? (Secretary of State for Work and Pensions v Alam 2010 ICR 665, EAT, and McCubbin v Perth and Kinross Council EATS 0025/13) Harassment related to disability[174]Turning now to the complaint of harassment under section 26 EqA, a person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, and humiliating or offensive environment for B. The assessment of the purpose of the conduct at issue involves looking at the alleged discriminator’s intentions. In deciding whether the conduct in question has the effect referred to, the tribunal must take into account the perception of B; the other circumstances of the case, and whether it is reasonable for the conduct have that effect (s26(4) EqA).[175]Unwanted conduct means conduct which is ‘unwelcome’ or ‘uninvited’ (Equality and Human Rights Commission (EHRC)’s Code of Practice on Employment (2011) (the “EHRC Employment Code”) paragraph 7.8). Unwanted conduct means conduct that is unwanted by the employee (Thomas Sanderson Blinds Ltd v English EAT 0316/10).[176]Section 26(1) EqA requires that the unwanted conduct in question has the purpose or effect of: violating the Claimant’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The Claimant only has to show one of these two strands, i.e. that the conduct had the purpose or effect either of violating dignity or of creating the proscribed environment. The Court of Appeal gave guidance on determining whether this part of the statutory test has been met in Reverend Canon Pemberton v Right Reverend Inwood, former acting Bishop of Southwell and Nottingham [2018] EWCA Civ 564: “In order to decide whether any conduct falling within subparagraph (1)(a) has either of the proscribed effects under subparagraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all other circumstances - subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.”[177]The intent behind unwanted conduct will not be determinative. However, it will often be relevant, per Underhill P in Richmond Pharmacology v Dhaliwal [2009] ICR 724 EAT at para 17: “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 (or more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.”[178]Whether unwanted conduct has the proscribed effect is question of fact to be determined objectively by the Tribunal. Although the Claimant’s subjective perception is relevant if it is not reasonable for the conduct to have the proscribed effect, that will effectively determine the matter Ahmed v Cardinal Hume Academies EAT 0196/18.[179]Not all unwanted conduct is capable of amounting to a violation of dignity, or being described as creating an intimidating, hostile, degrading, humiliating or offensive environment. This is the case even if it may have caused the recipient to be upset. Grant v HM Land Registry [2011] EWCA Civ 769 “Tribunal’s must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.”[180]Other circumstances of the case must also be taken into account under S.26(4) EqA. These will inevitably vary from case to case, and may assist the Tribunal to determine the Claimant’s perception and the reasonableness of it. The EHRC Employment Code at paragraph 7.18 sets out that such circumstances can include the claimant’s health, including mental health; mental capacity; cultural norms; and previous experience of harassment. It can also include the environment in which the conduct takes place.[181]The unwanted conduct must be “related to” the protected characteristic, here the Claimant’s disability. In Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and anor 2020 IRLR 495, EAT, His Honour Judge Auerbach made clear that the test of whether conduct is related to a protected characteristic is a different test from that of whether conduct is "because of" a protected characteristic, it is a broader, and, therefore, more easily satisfied test. Whether or not the conduct is related to the characteristic in question is a matter to be determined by the Tribunal, making a finding of fact drawing on all the evidence before it and its other findings of fact. Whether the complainant considers that the conduct related to that characteristic is not determinative. Burden of proof in relation to EqA complaints[182]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides in section 136(2) that 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. However by virtue of section 136(3) this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[183]Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC, the Claimant is required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.[184]Igen v Wong [2005] EWCA Civ 142 remains the leading authority in relation to the application of the burden of proof set out in section 136 EqA in relation to discrimination cases. It was not sufficient for the Claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. It is clear that the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent did commit an unlawful act of discrimination it can. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.[185]It is not sufficient to shift the burden of proof for a Claimant to show only a difference in status and a difference in treatment. These are bare facts which 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] EWCA Civ 33). Discussion and conclusions Knowledge of disability[186]The Claimant accepts a lack of knowledge of his disability by the Respondent prior to 24 September 2021, but argues that when the suspension had lasted six months it had to be likely that the depression and anxiety would last another six months (and therefore reach 12 months or more). The Claimant’s submission was that both the fact of and knowledge of disability conditions would have been met by then.[187]The Respondent’s case is that it had knowledge of the Claimant’s disability from 24 January 2022. That is the point at which the Respondent concedes that it knew that the Claimant’s symptoms were likely to last for at least 12 months.[188]The Claimant’s GP had diagnosed depression on 19 May 2021, and he had started antidepressants and was about to start cognitive behavioural therapy. The Occupational Health report of July 2021 (page 470) stated that Mr Ford considered that the Claimant’s severe depression was likely to improve with psychotherapy and antidepressant medication, and also following conclusion of any disciplinary procedures. During cross examination the Claimant accepted that at that time there was no reason to think his depression/anxiety would last for more than a year, because it was hoped that the situation would be resolved.[189]There is no clear event which occurred which would indicate knowledge, or which either party submits provides evidence of a clear moment in time that it would have been obvious that the Claimant’s would last 12 months. The Tribunal takes into account that the Occupational Health advice prior to June 2022 indicated that it was not anticipated that the Claimant’s impairment would last 12 months and there was no indication of reoccurrence. In the summer of 2021, even the Claimant did not consider it to be likely that the impairment would last 12 months if further enquiries had been made of him.[190]The Occupational Health advice was clear that the suspension was connected to how long the Claimant’s impairment would continue. The Tribunal does not consider it would have been clear after six months that the Claimant’s condition would continue for twelve months (as asserted by the Claimant). This would involve an assumption that the suspension and disciplinary procedure would continue to last that long, which the Tribunal consider would not have been evident to either party at that point. The Tribunal prefers the Respondent’s position. By 24 January 2022 (after 10 months), there cannot have been any doubt that the process would not be concluded within 12 months, and consequently that the Claimant’s anxiety and depression would also last that long. The Tribunal finds that the Respondent had constructive knowledge of disability on 24 January 2022. Allegations 9, 10, 11, 12, 13, 14, 16 of a failure to make reasonable adjustments[191]The Tribunal does not deal with these allegations further since on both parties’ submissions, the Respondent did not have knowledge of disability at the time of the relevant events. Therefore, the complaints cannot succeed pursuant to paragraph 20(1) of Schedule 8 to the EqA. This is accepted by the Claimant in submissions. Allegations 17, 18, 19, 20, 22, 23 of a failure to make reasonable adjustments[192]The Tribunal does not deal with these allegations further since on the Tribunal’s findings, the Respondent did not have knowledge of disability at the time of the relevant events. Therefore, the complaints cannot succeed pursuant to paragraph 20(1) of Schedule 8 to the EqA. Allegation 24: on 1 March 2022 the Claimant received the grievance investigation outcome from Mr Bullock. The timescale exceeded that in the policy and the Claimant did not receive any minutes from the meetings.[193]The PCP relied upon is “the Respondent not providing the Claimant with minutes and not complying with the policy timeframes”.[194]Mr Bullock’s evidence was that delay between conducting the final investigation meeting on 29 November 2021 and providing the outcome on 1 March 2022 was because he was conducting his normal work duties at the same time as dealing with the volume and detail of the Claimant’s grievances as well as this being a document heavy case.[195]The Tribunal considers that it had no evidence before it from which it could conclude that the identified PCP would have been applied in future to similarly situated employees. The Tribunal does not consider looking at how other alleged PCPs were applied to the Claimant (as was suggested in submissions) assists with this question, as the point is whether this identified PCP would have been applied in future to other similarly situated employees. This is because, as set out in Ishola, otherwise there is nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way. There was simply no evidence from which this could be inferred. The Tribunal considered that the act/omission complained of was simply a oneoff on the evidence before it. Since the Tribunal could not make a finding of likely repetition, the Tribunal finds that the identified PCP cannot be reasonably regarded as a “practice” for the purposes of section 20 EqA. Therefore the complaint is not well founded because there is no PCP.[196]Whilst it is not a PCP, the Tribunal acknowledges that the impact of the act/omission was that it increased the Claimant’s anxiety. Allegation 25: on 15 March 2022 Mr Bullock sent the Claimant three emails with notes from the previous meetings: none of the notes were complete or a true record of what was said at those meetings.[197]The PCP relied upon is “the Respondent not providing accurate or complete [meeting] notes.”[198]The Claimant’s witness statement simply states there were “many parts of the meeting missing from the written record”, similar is said in the Claimant’s contemporaneous email (page 866). Mr Lovatt’s evidence was that they were accurate although not verbatim. However, without evidence of what was missing or allegedly inaccurate, the Tribunal considered that it did not have sufficient evidence to make a finding that the minutes could be described as inaccurate.[199]The Tribunal did not factually uphold this allegation. Allegation 26: 23 August 2022 the Respondent advertising the Claimant’s role as an internal vacancy before the Claimant’s dismissal[200]The PCP relied upon is “the Respondent’s policy of advertising roles before they were vacant”.[201]The Tribunal does not uphold that the Respondent had a policy of advertising roles that were not vacant, this is inherently unlikely. Further, the Tribunal considers that it had no evidence before it from which it could conclude that the identified PCP would have been applied in future to similarly situated employees. The Tribunal considered that the act/omission complained of was simply a one-off on the evidence before it. Since the Tribunal could not make a finding of likely repetition, the Tribunal finds that the identified PCP cannot be reasonably regarded as a “practice” for the purposes of section 20 EqA. Therefore the complaint is not well founded because there is no PCP.[202]The Tribunal does acknowledge in making this finding that the impact of the advertisement of the role was that it increased the Claimant’s anxiety. Allegation 27: the length of the Claimant’s suspension from work.[203]The PCP relied upon by the Claimant is “the Respondent the suspension lasting longer than laid out in the policy”. The Claimant was suspended for almost 19 months.[204]The Respondent accepted in submissions that it had a policy of “maintaining suspensions where bringing an employee back to any of the Respondent’s workplaces would pose an unacceptable risk”. A PCP is therefore accepted by the Respondent.[205]It was further accepted by the Respondent in submissions that continued suspension would be likely to have a negative impact on the Claimant’s mental health. Therefore substantial disadvantage was conceded.[206]The Respondent accepted that it knew from 24 January 2022 that the Claimant was put to this disadvantage. Therefore knowledge of disadvantage was admitted from 24 January 2022. This is also the time from which the Tribunal have found that the Respondent had knowledge of disability.[207]The Respondent denied that it would have been a reasonable adjustment to end the suspension or to return Claimant to work somewhere else in the country. The Tribunal accepts that in circumstances where there were serious unresolved allegations made against the Claimant involving conduct which the Respondent considered was a potential risk to other colleagues, that it was not reasonable for the Respondent to end the suspension.[208]The alternative reasonable adjustment put forward by the Claimant was in essence that the disciplinary process should have been conducted more quickly.[209]The Tribunal notes that the Occupational Health report dated 5 May 2021 referring to a “grievance process” (this being before the Claimant had raised a grievance, and based on the introductory explanation, is considered by the Tribunal relate to the disciplinary investigation rather than any grievance) states “resolution to this is best completed in a short time frame in order to avoid any long-term detrimental effect on an individual’s mental health and wellbeing” (page 442).[210]The Claimant flagged the effect on his mental health from very early on saying on 26 July 2021: “I have been suspended from duty for over 4 months. I feel increasingly isolated. My mental health has suffered considerably and has continued to deteriorate, to such an extent that my GP has diagnosed me with severe depression and anxiety. I have been prescribed anti-depressants and a course of CBT has been arranged. My mental health continues to suffer” (page 476).[211]The Occupational Health report dated 26 May 2022 also reported the Claimant is saying “delays in bringing a conclusions the matter is further impacting upon his mental well-being… remaining off work any longer is likely to exacerbate his symptoms of anxiety and depression” (page 966).[212]The disciplinary procedure in relation to the Claimant was effectively “on hold” between early July 2021 and August 2022. The Claimant did not even know during this period what the evidence against him was or have any clarity as to the charges which he had to answer. The Tribunal notes that the Respondent seek to explain this lengthy delay by reference to the volume of grievances raised by the Claimant. The Tribunal agrees that the Claimant did raise a very significant volume of grievances.[213]Not all of the Claimant’s grievances were relevant to the disciplinary process. Indeed, the Respondent had allocated three grievance managers by dividing the grievance topics. Only the grievances being heard by Mr Lovatt were determined to be those relevant to the disciplinary process. This greatly reduced the matters which needed to be dealt with before the disciplinary process could continue. However, even with a large volume of detailed grievances, the Tribunal considers that the Respondent took an unreasonable period of time to resolve those grievances, before continuing with the grievance process (over a year).[214]Against a background where the Respondent was told on numerous occasions by the Claimant himself and Occupational Health professionals about the serious effect that the suspension was having on the Claimant’s mental health, it is clear that this matter should have been, and could have been resolved more quickly. Each individual may explain that they could not do this more quickly as they still had to do their day job (as they did in cross examination). However, it was the Respondent’s responsibility to ensure that the individuals nominated to deal with these matters had the time to deal with them in a timely manner, such as by relieving them of some of their normal work duties.[215]Whilst the above are comments on good practice overall, in relation to this complaint, only the time after the date of knowledge of disability and disadvantage is relevant. From the date of knowledge on 24 January 2022, the Tribunal finds that it would have been a reasonable step to prioritise the conclusion of the Claimant’s grievance and disciplinary matters. Mr Lovatt had concluded the grievance process on 11 January 2022, and the Claimant had appealed it on 13 January 2022. The Tribunal finds that given the size and resources of the Respondent, concluding the appeal and disciplinary process within two months of the date of knowledge, by 24 March 2022 would have been a reasonable step for the Respondent to take to alleviate the disadvantage to the Claimant. Instead, the process was not concluded until 19 October 2022.[216]The Tribunal finds the Claimant’s complaint of a failure to make reasonable adjustments is well-founded. Section 26: Harassment related to disability Allegation 20: 22 November 2021 - Mr Dixon admitting to Mr Paul Smith that he had tried to undermine the relationship between the Claimant and the Claimant’s Welfare Manager (Ms. Connor)[217]The Respondent admitted that this conduct was unwanted and had the proscribed effect.[218]The Tribunal finds that the conduct could not be said to be “related to disability”. The Claimant appeared to accept that the conduct was not related to disability in oral evidence. The Tribunal was not pointed to any evidence, prima facie or otherwise, which would indicate that this was the motivation for the conduct. Further, this is before the date of the Respondent having constructive knowledge of disability. Allegation 26: the Respondent advertising the Claimant’s role as an internal vacancy before the Claimant’s dismissal[219]This was conceded by the Respondent to be unwanted conduct and to have had the proscribed effect. The Respondent’s position is that this is unrelated to disability.[220]The Claimant’s position was that a negative inference should be drawn from the failure by the Respondent to put forward a positive case on this point.[221]The Tribunal considers that a negative inference can be drawn from the Respondent’s failure, without explanation, to put forward a positive case, or any witness who had any knowledge of this incident. This was sufficient to shift the burden of proof to the Respondent to prove that it was not related to disability.[222]No witness or evidence was put forward by the Respondent to demonstrate that this was an innocent error as was submitted by the Respondent was the case. No witness could answer cross examination questions on the topic.[223]The mere fact that the advertisement was removed after a complaint by the Claimant is not sufficient to discharge the Respondent’s burden of proof. It does not explain in any way why the advertisement was placed in the first place. The Tribunal do not consider it gives rise to an inference that it was done in error, it may equally have just been that the Respondent realised at this point that there had been wrong-doing. It is impossible for the Tribunal to make a finding on that in the absence of any witness or evidence.[224]The Tribunal considers that the burden to prove that the conduct was for a non-discriminatory reason was not discharged by the Respondent. On that basis, the Tribunal finds that the conduct was related to disability and upholds the allegation. Allegation 27: the length of the Claimant’s suspension from work[225]The Tribunal finds that this was unwanted conduct and did have the proscribed effect. In light of the exceptional length of the suspension, the Tribunal considers that it was reasonable for it to have had this effect.[226]The Tribunal considers that the conduct was not related to disability. The Tribunal does not consider that there was any prima facie evidence to transfer the burden of proof to the Respondent on this point. Unfair or unreasonable treatment alone is not sufficient to transfer the burden of proof. Unfair dismissal[227]The Tribunal finds that the reason for the dismissal was conduct in relation to Ms X. The Respondent genuinely believed the Claimant had committed misconduct. Investigation[228]The Tribunal finds that the investigation was not a reasonable investigation (using the reasonable range of responses test). Ms Carribine did not show a balanced approach.[229]Ms Carribine’s questions indicated negative views regarding the Claimant: accusing him of refusing to answer questions, being untruthful, making insincere apologies, and stating that Ms X was frightened when Ms X herself had said she was not (see paragraph 87 and 89 above). This was also evident in the evidence Ms Carribine gave to the Tribunal, in which at paragraph 1.3 of her witness statement, she said that “[the Claimant] has a clear pattern of behaviour, particularly in the way he is towards female staff. It drained me emotionally and physically…”. The Tribunal found that in cross examination, she was not able to give a satisfactory explanation as to the basis for this comment.[230]Ms Carribine was quick to believe the accounts of others, such as stating that she believed Mr Kelly in relation to the training allegation and the GWR complaint point, simply because he was more senior than the Claimant (see paragraph 85), rather than critically analysing documentation or speaking to witnesses herself.[231]In reporting the findings made by Ms Carribine, the Tribunal considered that the report did not put the position forward in a balanced manner. In relation to the incident regarding Ms X the position regarding the effect on Ms X was put forward in the strongest terms. However, it was not put in context, such as referring to the other reasons Ms X had stated she was feeling suicidal which were unrelated to the actions of the Claimant (see paragraph 82), or setting out comments made by other managers that Ms X could be emotional and burst into tears in relation to other matters (see paragraph 80). The report did not provide any information regarding the Claimant’s account of these events, or his motivations (concerns regarding COVID). The report did not examine whether the Claimant was aware of the effect his conduct was having on Ms X. If it had been recorded, this would have set out that the Claimant had not been told about this, despite other managers being aware of it.[232]The report did not refer to any mitigating factors. Ms Carribine made it clear that she considered the 2016 Occupational Health report to be completely out of date, but she also did not wait for the outcome of her updated referral to complete the report. It was not explained in the report that medical advice received by the Respondent was that the Claimant did not realise how his communication style may seem to others. This is highly relevant to the allegations in question and goes to blameworthiness. The report did not set out that the support recommended in the Occupational Health report to address this issue had not been provided to the Claimant. Again, this is highly relevant to the blameworthiness of the alleged conduct.[233]The report did not refer to the Claimant having 31 years’ service with the Respondent, or that he had no previous disciplinary record for that period of time.[234]The report did not mention that Ms Carribine and had received unsolicited phone calls from a significant number of people. Dismissal as a sanction[235]The Tribunal considers that Mr Lovatt simply did not consider matters related to the Claimant’s culpability such as training, motivation, and intention. These matters are highly relevant to the Claimant’s culpability.[236]Mr Lovatt placed full reliance on the disciplinary investigation report without considering it critically (see paragraph 126). As such the matters for which the investigation has been criticised by the Tribunal flow into the dismissal decision.[237]The Occupational Health reports were highly relevant to the conduct which was the subject of the disciplinary process. Mr Lovatt did not consider either the 2016 or the 2021 Occupational Health report in reaching his decision. Mr Lovatt did not take into account that the support which had been recommended had not been provided by the Respondent.[238]Mr Lovatt did not take into account the Claimant’s very long service and clean disciplinary record in deciding the appropriate sanction. Further the Tribunal found Mr Lovatt did not turn his mind to possibilities other than dismissal, taking into account the Claimant’s long and varied service with the Respondent, and his demonstrated ability (through the DAP) to improve his conduct.[239]The Tribunal considers that dismissal was outside the band of reasonable responses. Any reasonable employer would have considered not just the effect on Ms X, but the Claimant’s motivation and knowledge of wrongdoing (which goes to blameworthiness), which Mr Lovatt did not take into account. Any reasonable employer would have considered mitigating factors in determining the sanction. Highly relevant mitigating factors were simply not taken into account: evidence from medical professionals that the Claimant was not aware of the effect of his manner of communicating; that the Respondent had been advised to put support measures in place in relation to this and had not done so; and that the Claimant was a very long serving employee of 31 years with a clean disciplinary record. Any reasonable employer would have turned its mind to whether a sanction other than dismissal would be appropriate in the circumstances. Appeal[240]The appeal process was carried out by an independent manager, but was superficial and insufficient to rectify the errors in the dismissal process. Mr Robinson appeared to have little knowledge of the relevant facts in cross examination, such as whether the Claimant was aware of the effect of his behaviour or what his motives were. The Tribunal consider that Mr Robinson’s approach was an uncritical “rubber stamping” approach: Mr Robinson appeared to consider that some sort of “new” evidence had to be provided by the Claimant to convince him that the dismissal was unfair. The appeal was certainly not sufficiently thorough to rectify the errors made at investigation and dismissal stage.[241]Accordingly, the Tribunal finds that the dismissal was unfair. Polkey[242]The Tribunal considers that it is not appropriate to make a Polkey reduction in this case. This is always a speculative exercise – particularly in a case like this where there has been substantive and procedural unfairness. The Tribunal considers that if the Respondent had properly taken the relevant mitigating factors into account, the Claimant would not have been dismissed. Contributory Fault[243]The Tribunal considers that the Claimant’s conduct in relation to Ms X could potentially be considered to be contributory conduct. The Tribunal takes into account the factors identified above regarding training, motivation, and intention, the Occupational Health advice regarding the Claimant’s conduct, and the Respondent’s failure to provide appropriate support. In light of those matters the Tribunal did not consider this conduct to be of a blameworthy nature which would make it just and equitable to reduce the basic or compensatory award. Time Limits[244]The earliest date which is automatically in time is 1 August 2022, and the only allegations which would automatically be in time are 26, 27 and 28.[245]The Respondent accepted that allegations 27 and 28 were part of the disciplinary process and so connected as a course of conduct to allegations 9- 12, 14, 17, 18, 19, 22 and 23, which also relate to the disciplinary process (broadly understood to include the grievances heard by Mr Lovatt as disciplinary manager).[246]The remaining allegations (13, 16, 20, 21, 24, 25) relate to the other grievance processes and the Respondent’s case was that those are properly separable from the disciplinary process. The Respondent submitted that the Claimant has had union support at all times and understood that the Tribunal process was available to him, but chose not to bring proceedings in time.[247]The Respondent’s case was that allegation 26 concerned an individual action which was not part of any continuing course of conduct. Allegation 26 is the advertising of the vacancy, which was not done by anyone involved in either the disciplinary or grievance processes.[248]The Respondent has not put forward any evidence of real practical difficulties created by the Claimant’s claim being out of time. The Claimant has not put forward a reason why the claim was not filed within the primary time limit.[249]The Tribunal takes into account:a. the Respondent did not put forward a case regarding evidential difficulty;b. the Claimant had union support and was aware of the Tribunal process;c. the merits of the relevant allegations: 13, 16, 20, 24, 25 were complaints without merit whereas allegation 26 was well founded.[250]The Tribunal considers it is just and equitable to extend time in relation to allegation 26 but not in relation to 13, 16, 20, 24, and 25.