Mr R Paul v Roke Manor Research Ltd: 1405660/2023 Mr R Paul v Roke Manor Research Ltd: 1405660/2023
EMPLOYMENT TRIBUNALS
Case No 1405660/2023
Between
Mr R PaulClaimantRoke Manor Research LimitedRespondent
Before
Employment Judge GrayIn person for claimantMr J Arnold (instructed by Counsel) for respondentDate 29 January 2025
JUDGMENT
It is the unanimous judgment of the Tribunal that the Claimant’s complaints of discrimination arising from disability and a failure in the duty to make reasonable adjustments, all fail and are dismissed.
REASONS
[2]This is a complaint of disability discrimination by Mr Paul against Roke Manor Research Limited.[3]By a claim form presented on 28 August 2023 the Claimant brought complaints of discrimination on the grounds of disability pursuant to sections 15, 20 and 21 of the Equality Act 2010. THIS HEARING[5]For reference at this final hearing, we were provided with:a. A hearing bundle of 370 pages.b. An agreed chronology and cast list.c. Witness statement from the Claimant.d. Witness statements on behalf of the Respondent from: i. Nick Dyer (ND) – Head of Engineering ii. Thomas Eskriett (TE) – Assistant Director[6]At the commencement of the final hearing the Claimant applied for a restricted reporting order in respect of his medical history which was granted for the oral reasons given at the time and is subject to a separate order.[7]On discussing the submitted hearing documentation, the Claimant confirmed that he had been using a previous version of the hearing bundle so the page references in his witness statement were not correct. It was agreed that as reference to such documents became necessary during the hearing the correct page references would be identified by the parties.[8]It was also confirmed that the Claimant had not submitted a disability impact statement as previously ordered (it was due on the 26 January 2024), so the question of disability remained in dispute.[9]Then, on discussing the medical evidence that the Claimant was presenting the Tribunal on matters of disability (pages 305 to 366 of the hearing bundle), it was identified the documents were in the main illegible as 4 pages of notes had been copied per one page of the hearing bundle. The Claimant was tasked with providing copies of those documents referred to in his witness statement in a readable format. The hearing was adjourned from 11:30 to 12:30 on day one while the Panel read, and the Claimant sorted the documents.[10]Unfortunately, upon resuming, the Claimant had only been able to email the Tribunal Clerk a copy of all his medical notes, which could not be printed and were not limited to those he refers to in his witness statement. What was needed was explained to the Claimant again. As this would take more time it was also ordered by consent that the Claimant provide a disability impact statement and that both things be provided on or before 7PM that evening. It was agreed the hearing would resume at 9:30 am on day two so that evidence could commence. In the interim the Panel would continue to read into the hearing papers.[11]Due to the loss of hearing time, it was agreed that this final hearing would determine matters of liability only.[12]Evidence then took most of the remaining two days. At the start of the second day of evidence the Claimant requested as a reasonable adjustment more time to complete his closing submissions. Case management directions were therefore agreed by consent for the presentation of written closing submissions and are referred to in a separate case management order.[13]The Claimant also confirmed that he would be seeking a full written reasons judgment so it was agreed that the Judgment would be reserved.[14]A subsequent deliberation day was then listed for the Panel to determine matters following receipt of the parties written closing submissions.[15]A unanimous Reserved Judgment was then reached as is now set out in these written reasons.[16]THE ISSUES[17]At the Case Management hearing before Employment Judge Roper on the 30 November 2023 the issues were agreed. A copy of those agreed issues is below at Annex A.[18]During the course of the final hearing the agreed issues were confirmed noting the following:a. Based on the disability discrimination complaints focusing on the termination of employment it was agreed and accepted that no time limit jurisdictional issues arose in this claim. The issues under paragraph 1 no longer required determination.b. Following the production of legible medical notes and further disclosure, as well as a disability impact statement, the Respondent conceded that the Claimant was disabled at the material times due to post-traumatic stress disorder and co-morbid depression and anxiety. The Tribunal accepted this.c. The Respondent continued to dispute that the Claimant was disabled by reason of Asperger’s Syndrome at times material to this claim, so this required determination.d. At a further case management hearing before Employment Judge Dawson on the 20 June 2024, which determined a specific disclosure application, it was noted: “7. In an amended Grounds of Resistance the respondent set out its why it said its treatment was a proportionate means of achieving a legitimate aim and stated[23]The legitimate aims in dismissing the Claimant were to:23.1 ensure that only a competent and/or qualified employee, with a sufficient level of technical ability expected by the Respondent for a Grade 6 Engineer acting as a Technical Lead/Solution Architect, occupied that role;23.2 maintain a proper and/or effective probation system; and/or23.3 ensure and maintain a competent and/or professional workforce.” e. The Claimant confirmed that he did not dispute the legitimate aims but did challenge proportionality. f. The Respondent accepted that it had the asserted PCP of requiring employees to achieve and maintain a certain standard of performance. g. The Respondent having knowledge of the asserted substantial disadvantage in that the Claimant suffered from intrusion, and was unable to concentrate fully on his work, remained in dispute. 19. THE FACTS 20. We found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after considering the factual and legal submissions made by and on behalf of the respective parties. We also had the benefit of an agreed chronology. 21. It is not in dispute that the Claimant is disabled by reason of post-traumatic stress disorder and co-morbid depression and anxiety at times material to this claim. 22. The Claimant asserts that he also has a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about, by reason of Asperger’s Syndrome. 23. Within his 8-page disability impact statement the Claimant says about Asperger’s Syndrome particular to him… “Richard’s experience of Asperger’s is mainly hyper-focus and also obsessions with particular areas of interest. I also experience some social difficulties and also recognizing social queues. This is a neurodevelopmental condition which has no remedy. There are management strategies which involve masking behaviours, and trying to “compute” responses to situations. I find these exhausting.”.[24]Paragraph redacted Pursuant to section 12 of the Employment Tribunals Act 1996 and rules 50(1) and (3)(d) of the Employment Tribunals Rules of Procedure 2013[25]As part of the Claimant’s written closing submissions, he had included a copy of a letter dated 13 January 2014 from Name redacted Pursuant to section 12 of the Employment Tribunals Act 1996 and rules 50(1) and (3)(d) of the Employment Tribunals Rules of Procedure 2013. The Respondent in its reply to the Claimant’s written closing submissions objected to the late inclusion of this document. However, we would observe that this letter is dated the same as the entries we were referred to in the Claimant’s GP records so would appear to be a relevant document. It is unfortunate the Claimant did not produce such material earlier, particularly as he was directed to produce such material by January 2024, so it has been submitted nearly a year later than it should be and after the final hearing has taken place.[26]Paragraph redacted Pursuant to section 12 of the Employment Tribunals Act 1996 and rules 50(1) and (3)(d) of the Employment Tribunals Rules of Procedure 2013[27]Paragraph redacted Pursuant to section 12 of the Employment Tribunals Act 1996 and rules 50(1) and (3)(d) of the Employment Tribunals Rules of Procedure 2013[28]The Respondent disputes having knowledge of the asserted substantial disadvantage, being the Claimant suffered from intrusion (being intrusive thoughts) and was unable to concentrate fully on his work. No evidence was presented to us to support that the Respondent did have any direct or indirect knowledge of such matters.[29]On the 11 February 2022 the Claimant had a first interview with the Respondent for the role of Machine Learning Engineer and was unsuccessful in obtaining the role (pages 76 to 81).[30]ND explains (paragraph 4 of his witness statement) … “At the conclusion of the interview, we did not believe the Claimant had enough experience for the advertised role. During the interview the Claimant expressed an interest in technical architecture and strategy, so we suggested the Claimant be considered against for another role, Sales Solution Architect, in the Systems Engineering & Consultancy profession.”.[31]The Interview Assessment form (page 76) notes the Claimant’s strengths as being: “Broad range of experiences Open to working in lots of different roles, but primarily SSA/proposal writing/customer facing/architect/BA space.” And his weaknesses as being: “Sees himself as an architect more than a dev team member. Needs to acquire more cloud knowledge.”[32]On the 7 March 2022 the Claimant had a second interview this time for the role of Sales Solution Architect. The Claimant was successful, and it was recommended he be appointed at Grade 6 (pages 82 to 84).[33]The Interview Assessment form (page 82) notes the Claimant’s strengths as being: “Diverse range of relevant skills and knowledge (telecoms, architectures, modelling frameworks, DS, Al ML etc.)• Personable - engagement skills• Careful well thought-out responses to questions - good consultancy approach• Would be confident to put him in front of the client” And his weaknesses as being: “Less forthcoming on the latest/most interesting technologies. Maybe more of an architect than a technologist”[34]The Clamant then completes an Employment Offer - Acceptance form on the 29 April 2022 (pages 88 to 91). The Claimant does not declare as having any disabilities (pages 89 and 90).[35]In an Occupational Health report dated 6 October 2022 it records that the Claimant disclosed a long-term mental health condition, for which he had treatment and strategies in place. It advised for management to be flexible with his working hours if that can be accommodated (page 93).[36]The Claimant asserted in his oral evidence that he had not seen the OH report, requesting a copy via HR three months after it was produced which was not then provided. He did not follow up his request. The Report does note that a copy was sent to the Claimant at the same time as the Respondent (6 October 2022 12:44). Following a subsequent question about an email dated 15 October 2022 (page 96) where the Claimant refers to reasonable adjustments the Claimant confirmed that he was aware of the content of the OH report at that time, as he had been told about it by OH over the telephone.[37]In the email dated 15 October 2022 (page 96) the Claimant writes: “I recently spoke to an occupational therapist who Roke commissioned There was a discussion of reasonable adjustments In particular flexible working hours In respect of this I would like to request an arrangement to work either 4 days in 3, or 5 days in 4.”[38]At this stage (October 2022) the Respondent has knowledge the Claimant has a long-term mental health condition. Flexible working is recommended by OH and that is all the Claimant seeks from the Respondent.[39]On the 19 October 2022 flexible working is offered to the Claimant to do 4 days a week with Wednesdays as a non-working day (pages 95 to 97).[40]By letter dated 23 November 2022 the Claimant is made an offer of employment (pages 118 to 122).[41]On the 28 November 2022 the Claimant commences employment subject to a 6-month probation (page 118 and 67).[42]By email dated 6 December 2022 ND provides the Claimant with a number of training materials including on AWS, following a request from the Claimant.[43]In December 2022 the Claimant commences work on Project 1 (Marshlands).[44]As ND details in paragraph 17 of his witness statement … “The Marshlands project mobilised soon after the Claimant joined and he worked with the technical lead Diane Golbourn and James Haynes, Project Manager. He was on this project between December 2022 and early March 2023.”.[45]Then at paragraph 18 … “After the Claimant had been mobilised about a month, I spoke to Diane and checked whether the Claimant had been settling in. Diane indicated he was not performing well on the project. She had concerns about his software delivery ability. I asked that the project team should give that feedback directly to the Claimant.”.[46]In late February 2023 the Claimant is removed from Project 1. As ND explains (paragraph 19 of his witness statement) … “In late February 2023, given these concerns and as the team were under significant delivery pressure, James decided it would be necessary to rotate the Claimant out of the project. I asked them to communicate this to the Claimant.”.[47]By email dated 15 February 2023 the Claimant communicates to James Haynes (copying in ND), in reply to an email confirming other opportunities at the Respondent would be explored, that he is happy to wear any number of hats according to what is required. Be it software engineer, technical architect, technical consultant, technology researcher or a machine learning specialist. There is no indication from what is communicated that the Claimant considers that he is struggling to deliver in any role.[48]By email dated 27 February 2023 Diane Golbourn (DG) provides feedback to ND on the Claimant (page 150). DG communicates that she thinks the Claimant is in the wrong role. DG writes … “Throughout the few months we have now worked together he has not demonstrated a proficiency with software – either architectural, development or process. He has yet to deliver tangible software of any value, and indeed he leans on the more junior members of the team who he relies upon to get anything done.”. DG then provides a few examples of that. Further, … “Essentially, I feel he is completely out of his depth with regards to software development and practical software architecture. There is sadly not a day that goes by where I don’t have a member of team coming to me in a panic or with concerns about Richard’s performance.”. DG concludes the email … “I do not think Richard has demonstrated engineering competency sufficient to pass his probation. Perhaps he should move on to a project more suitable to his skills outside of software development to give him a second chance with an extended probation?”.[49]It is clear from this feedback that DG has concerns about the Claimant’s software development and engineering competency.[50]On the 1 March 2023 there is a catch-up between the Claimant and ND. At paragraph 21 of ND’s statement … “Later on 1 March 2023 in the afternoon, I had a catchup with the Claimant during which we went over the concerns which had been raised [151]. The Claimant said he had done a lot of complex software development before. He was working hard to backfill his knowledge gap around AWS. I felt that the Claimant did not appear to have taken on board our concerns – by his account he had been delivering well and the project manager had overreacted.”[51]The notes from the catch-up record (page 152): “How have things gone on Marshlands?• "bit of an overreaction from JH"• Done lots of complex sw dev before• Tends to try and adopt multiple perspectives, considering the technical issue that the project is confronting currently, and thinking ahead, drawing on experiences with architect.• Worked hard to backfill knowledge on AWS.• Was trying to adopt a pair programming approach.• Thinks he works well with Diane, but she may need support in a different way• Client uses libraries for their software - a bit of a dilemma as to whether we pick them up for ease of integration.”[52]As is consistent with the Claimant’s evidence to this Tribunal, his view was he was performing well and that the feedback about him was wrong. We would observe that this is also consistent with what the Claimant submits in paragraph 30 of his closing written submissions and paragraph 33 of his reply to the Respondent’s closing written submissions.[53]Later that day (1 March 2023) the Claimant deletes the Marshlands server (page 153). ND refers to this is paragraph 22 of his witness statement … “During the evening on that day, the Claimant deleted the Marshlands development server. No work could be done by the team until it was rebuilt, which caused significant disruption. We investigated what had happened. I briefly considered whether there could be a malicious intent, and therefore asked for records to be kept. James Haynes discussed what had happened with the Claimant. The Claimant was apologetic and said it was a mistake [151- 155].”.[54]On the 8 March 2023 the Claimant is proposed for Project 2 – PBS214. As ND refers in paragraph 23 of his witness statement … “On 8th March 2023 I was informed that the resource team had proposed the Claimant for a short customer funded project PBS214 in the SECTORED programme. The project manager was Maria Maxwell-Long. Another engineer on this work was Joshua Harris.”.[55]Project 2 – PBS214 commences on the 21 March 2023. Prior to this starting the Claimant was given Innovation Task 1559 in the interim which related to the customer project. The Claimant worked on that before starting project 2.[56]On the 28 March 2023 the Claimant requested holiday for the 3 to 14 April 2023 which he then takes on those dates. ND refers to this in paragraph 28 of his statement … “I was informed that Maria had met with resourcing on 31st March 2023, and agreed to accommodate the Claimant’s leave request, replanning the project not to require him. The Claimant was therefore not required for the external customer kick-off meeting on 31st March 2023.”.[57]By an email dated 17 April 2023 feedback is provided on the Claimant by Joshua Harris (page 157): “My experience in working with Richard so far hasn't been great. As much as I'm aware of the importance and benefits of providing some constructive criticism, Richard's lack of contribution to the project we were assigned to has made this almost impossible. We were due to start a SECTORED project (PBS214 Advancing Large Language Models), in mid-late March, with Richard and I working on the project together. The day before this project was due to kick-off, Richard took on a Kew task … which, while related to the project, significantly delayed his contributions to this project. In itself, I was alright with this task helped provide background for the rest of the report, but then this Kew task overran (he mentioned that he should have finished it by CoP on Monday 27th March, but by Friday 31st, it was still in progress). I then found out (from Maria, the PM) later in that week that he was about to go on annual leave from 3rd April for two weeks, but hadn't informed me of this. This SECTORED project is due to finish with a report delivered to the customer by the end of April, and so far he has not contributed to the project in any capacity, and I believe has since been taken off the project. It didn't seem to me that his amendments to the brief based on the customer requirements lined up with what they had specified; he included unrelated and vague concepts, which didn't show the sort of expertise that I'd expect from his seniority and claimed experience in NLP. Additionally, on a personal level, I have found that Richard's manner comes across as quite rude and blunt, but I'm aware this could be a style of working.”[58]The main focus of the concerns is on the Claimant’s level of contribution to the project and his level of expertise. The Claimant hadn’t shown the sort of expertise expected at his seniority and as claimed by him.[59]On the 20 April 2023 there is a meeting between the Claimant and ND (pages 164, and 159 to 160). ND at paragraph 32 of his witness statement … “I wanted to make sure that the Claimant’s third deployment started to show an improvement. On 20th April 2023, I had a long meeting with the Claimant where I set this out, reiterating our concerns and offering support”.[60]The notes of the meeting (page 159) record under the heading “General concerns – organisational” that they agreed to part time working during on boarding and how the Claimant could manage his diary better to reflect that. There is no indication from the notes that any other adjustment is sought or is needed.[61]At the end of April 2023 - Project 3 – internal commences. ND refers to this in paragraph 33 of his witness statement … “The third project was again internally funded and led by Andy Nicholson, Project Manager and Leigh Chase, Chief Technology Officer. I regularly met with them to see how the Claimant was progressing.”. Then at paragraph 34 … “Andy’s feedback was the Claimant has demonstrated behaviours under pressure that were not appropriate for someone at Grade 6 at Roke. This was supported by detailed commentary from the team. He said there were ongoing challenges with time management. Andy advised that the Claimant should be removed from the project.”. And paragraph 35 … “As a compromise, we agreed the Claimant would step back from the team lead role and continue to deliver architectural elements, with close support from Leigh. Leigh reported that the delivered architecture work was both not delivered in a timely way and didn’t cover the agreed scope. It also did not demonstrate technical understanding at the level required.”. Then at paragraph 36 … “Once completed on 20th April 2023, I reviewed the Innovation Task 1559 work. I was concerned that a substantial portion had been copied from another copyrighted work. This was over 700 words and two diagrams [252-256]. I reported this to Angharad Pitty who was the sponsor of the task.”.[62]We were presented with a copy of the Claimant’s probationary review form (pages 171 to 172). It is signed off by ND on the 19 May 2023. It notes: “There’s a clear pattern of:• Technical skills not up to date with modern practices in software delivery – although 50h training was undertaken in AWS and any other skills required for Marshland on onboarding.• Pattern of poor time booking (suspense, booking to codes without approval) and basic administration (now marking NWD in outlook, lack of notice in booking hire cars despite flagging this), and time wasted due to errors (deleted Marshlands dev server by mistake)• In addition, concerns have been raised over approach to team working and leadership not in line with Roke’s behaviours (all taskings)”.[63]ND confirmed in his oral evidence that the reference to the “In addition” concerns were what he saw as secondary considerations. ND explained that the Respondent takes behaviours seriously but there are lots of styles, and the primary thing to show a pass for probation is well received tech delivery. If the Claimant had shown that they could then have looked at correcting and accommodating any behavioural issues.[64]It is then on the 25 May 2023 that the Probation review meeting takes place with the Claimant, and he is then dismissed by ND as of that date (pages 188 to 189).[65]As ND states in his witness statement at paragraph 38 … “During the probation review, we went through the various concerns that had surfaced during the probation period, where the Claimant had not demonstrated performance at the required level for his grade and role. We ensured that the Claimant had an opportunity to comment around each specific concern [183-186].”. Then at paragraph 39 … “The Claimant disclosed during the probation review that he has Aspergers [183-186]. I had not been aware of his condition prior to the probation meeting. We carefully considered this when coming to a decision, discussing whether it would make a difference. We concluded that Roke had complied with the OH recommendations and had shown considerable flexibility around working hours and leave.”. And, paragraph 40 … “Even if we discounted all the concerns regarding behaviours, it was my view supported by feedback from multiple sources that the Claimant had not delivered technical output of a sufficient quality and consistency to pass probation [183-186].”.[66]Considering the notes from the Probation review meeting (pages 183 to 186), we note at page 184 what the Claimant is recorded as saying about not meeting the standards on Technical Ability: “What are your views on this? RP stated he took an architectural view - looking at long term requirements not just the immediate software being delivered on the sprint. He tried to steer the team away from technical cul de sacs and looked to the future as it was harder to make changes further down the line. He felt there was a mismatch of perspectives. ND said concerns were raised re his development of product RP it was a normal agile process where they had 2 weeks sprints and accepted tasks for the sprint to work on individually or collaboratively. They reported back at stand ups and at the end of the sprint. RP said he raised concerns re overarching architecture which needed to be borne on mind. On the project he was working on at the moment with Leigh Chase on Intelligence as a service they took a different hybrid approach where software was developed iteratively and was therefore resilient, flexible and scalable. RP said Marshlands was pure Agile and all about what could be delivered in a 2 weeks sprint and his motivation was to make it more hybrid and prevent decisions that would be hard to change at a later date using a lambda process that prevent deadends. ND confirmed he understood his view.”[67]As to Quality and Accuracy of Work it records … “RP said he spent a week on Kew task on ChatGPT as discussed with ND. He was looking at Neural networks which would form part of the introduction section. RP then took some time off and then spent a week looking at a report JH had produced and emailed his comments back to MML. RP had detected some issues in that JH had described the process but not explore the issues with tuning methods. MML had confirmed others were working on the White paper so I collated my information and left it with her.”[68]As to Efficiency (page 185) it records: “RP stated that the Kew task was 5 days but overlapped with the project and he discussed this with JH. He did both the sectored task and Kew task together. RP apologised for taking holiday at short notice which was due to an unexpected personal situation but he would follow the procedure in future.”[69]Then as to Interpersonal skills … “RP said he did not intend to be to be rude but he suffers from Aspergers so can be blunt and not always aware of this. He said he can get focused on the detail so be abrupt but he always tried to say thanks in emails for example but he accepted the feedback and said it was something he could work on.”[70]Then finally on Team Working: “RP said that this would have been about stand-ups and recently he had backed off but at the start of the project he needed to make sure there was open architecture which is something Leigh chase advocates as well. ND asked if this was where he disagreed with the rest of the team? RP said it was possible and that Roke didn't have an architecture profession so needed to strengthen this as projects like Marshlands do have components in them. Once the "golden rules" were set up then he felt he could leave it with others and he was now a more passive member of the team. He said this was his motivation but perhaps the communication could have been better.”[71]ND then asks the Claimant if there is anything else to raise before they adjourn to decide and the Claimant is recorded as responding … “RP said he would respond to the comments made and take them on board and would collaborate with Leigh chase on ways of working.”.[72]The meeting then adjourns from 11:45 to 12:05 and ND then confirms: “ND said that in carrying out these reviews they looked at past behaviour and delivery performance as being and indicator of future performance. He had considered RPs performance across three separate projects and there were some patterns of behaviour common to all three which we have discussed. We have listened to your views to explain your performance and behaviour and taken this into account. The conclusion is that you have currently not demonstrated the performance required to pass probation at this point. We have then considered the decision as to whether to extend the probation period or not. Given that the performance and behaviours over the three projects have shown no demonstrable change in approach the conclusion is that it is unlikely there would be a fundamental change in the way you work in future. For that reason we have decided not to extend the probation period further.”[73]ND explains in paragraph 41 of his witness statement … “Although we had provided three separate environments for the Claimant to display the performance required to pass probation, there had been no demonstrable improvement, so there was no likelihood that an extension to probation would be worthwhile. Therefore, I declined to extend the Claimant’s probation period and regrettably dismissed him from the Company [188-191].”.[74]It is then by letter dated 25 May 2023 (pages 188 to 189) that it is confirmed: “As you are aware, your employment at Roke was subject to successful completion of a probation period. Following a final review of your performance, it was determined that you had failed to perform to the standards required of the role and therefore had not successfully completed the probationary period. As a result, unfortunately, the Company has decided to dismiss you with effect from 25 May 2023. During the timeframe of your probation, we monitored your behaviour and performance and this evidenced in the following concerns which were raised with you:• Technical Ability• Quality and Accuracy of Work• Efficiency• Interpersonal skills• Team working At today's meeting we discussed the feedback I have been given in each area and your views on this. My conclusion is that you have not met the requirements of the role sufficiently to pass probation at this point. I considered the feedback across the three main projects on which you have worked and there was no demonstrable change regarding your ways of working and therefore I feel it is likely that this will continue so do not feel this would warrant an extension.”[75]ND was asked in oral evidence about the Claimant’s Aspergers and why the dismissal letter refers to all five performance metrics if technical output was the reason for the Claimant failing the probation (as ND states in paragraph 40 of his witness statement).[76]ND confirmed that he did not consider Aspergers to be a disability and that the Respondent has numerous members of staff with neurodiversity. They have reasonable practices in place for spotting it and giving training to learn how to interact with colleagues who are. ND noted that when they looked through notes of a TEAMS conversation on the 31 March 2023 (at page 156) they suspected the Claimant may have neurodiversity at that point. The TEAMS notes record: “Maxwell-Long, Maria 07:43 Hi Nick, I am not aware about any holiday issues. The project has just started, customer kick off meeting today. We had an internal kick off on Tuesday (there is only Rich and Josh Harris on the project). I thought that Rich's behaviour at the internal kick off meeting was over bearing (but I am trying to be cognisant of diversity at Roke). I have spoken to Josh Harris since and he said he can handle it (but I have said to him that I will keep an eye on it). The project is only set to run for 3-4 weeks.”[77]ND explained that his view was neurodiversity was really common and ultimately it changed very little as they would provide support whether it was there or not. The reason for dismissal ND said was purely based on the Claimant’s technical ability, despite the letter referring to all five metrics and this was clarified in the appeal process. We accept what ND says about this as it is consistent with the content of the feedback about the Claimant from the various projects.[78]The Claimant then appeals against his dismissal and sets out his grounds of appeal on the 28 May 2023 (page 192) and further grounds of appeal on the 30 May 2023 (page 194).[79]In the grounds of appeal, the Claimant writes that when he joined the Respondent he declared he was disabled. He writes … “I have a number of mental health conditions (Anxiety, depression, complex PTSD and Aspergers)”.[80]The Claimant writes that he believes he has been discriminated against on the grounds of his disability: “One of the reasons for my dismissal was my manor and awkward interpersonal skills This is due to my disability which was disclosed to Roke in the expectation that reasonable adjustments were made in respect of this condition. My conduct and performance under conditions of stress was due to my disability. As such I would have expected Roke to implement reasonable adjustments. No such discussion was done during the projects I was staffed on. A piece of relevant case law can be found in "McQueen vs general optical council" Additional criticisms levelled at me were to do with the technical work I did do on the projects. I explained in my review meeting before I was dismissed that there were very good reasons why I took the technical approaches to the problems I was presented with. I am willing to elaborate in a separate conversation, but do not think it is appropriate to expand here due to the security classification of the projects in question. Suffice it to say that I was trying to steer the projects away from a number of pitfalls that I have witnessed in my 27 years of conducting IT projects. I cared very deeply about the technical work, and the delivery of value to the respective customers. On the last project I was staffed on I did discuss my approach with one of Roke's directors who was in agreement, and appreciative of the work I was doing.”[81]Then in the further grounds of appeal the Claimant writes that he did disclose his disabilities (aspergers, complex PTSD, anxiety and depression) to the Respondent both before and during his time employed there. He writes that … “The effect of aspergers in my case is that I become focused on the technical detail of the problem at hand, and less focused on the social setting in which the work is taking place. This is mitigated against by holding technical discussions over email and/or clearly setting expectations before meetings.”.[82]Further, he writes: “My other mental health conditions mean that under stress my awareness of the social situation is also compromised in favour of focus on consideration of the technical/engineering challenge. I did mention this to the disability assessor Had adjustments been made the projects and colleagues at Roke would have been able to take advantage of clear analysis of technical issues to consider. Concerns about my manor not been raised until the 25th May at the dismissal meeting Assumptions were made that skewed the perspective and understanding of the situation I would have disclosed aspergers, and must state that my condition means I read people differently How could I have addressed these concerns? However, on the last project I was on I presented some complex analysis I had done to a technical director The discussion was productive and we agreed a way forward and the technical director was appreciative of the work i had done and future work i undertook to complete I presented the same material and the technical direction agreed with the director in the same way to the more junior people on the project. The junior people had a problem with this and accused me of being dictatorial I believe the junior people were being unreasonably sensitive I would add that in subsequent meetings I completely backed off on making passing comments for clarification, prioritisation, and assistance I suggested someone else chair team meeting Again I can only explain my point of view in general terms due to the security classification of the subject matter I would be willing to elaborate on the situation and material to you in due course in an appropriate forum”[83]We note that the Claimant did not disclose his disabilities in the Employment Offer - Acceptance form completed on the 29 April 2022 (pages 88 to 91). The Claimant does not declare having any disabilities when asked for that information in the form (pages 89 and 90).[84]Also, the OH report refers to a mental health condition and recommends flexible working. The Claimant does not request any other adjustments. The Claimant is first documented as mentioning Aspergers at his Probationary review meeting.[85]In the appeal, and which is consistent with what is recorded in the probation meeting notes, the Claimant does not attribute a disability or something arising from disability to the technical issues … “I explained in my review meeting before I was dismissed that there were very good reasons why I took the technical approaches to the problems I was presented with. … Suffice it to say that I was trying to steer the projects away from a number of pitfalls that I have witnessed in my 27 years of conducting IT projects.”.[86]The further grounds of appeal attribute to his asserted disabilities difficulties in a social context. They do not assert that his technical ability or capability was compromised in any way. He focuses within the further ground of appeal on highlighting how he believed his technical ability was appreciated by the technical director. This is consistent with the way the Claimant presented his case and responded to cross examination at this hearing. Where criticism of his technical ability or capability was raised, his position was that they were wrong or lying.[87]An appeal hearing takes place before TE on the 20 June 2023 (pages 198 to 231).[88]By letter dated 14 July 2023 the appeal outcome is provided. The Claimant’s appeal is not upheld (pages 242 to 243): “During the appeal, you raised a number of points for which I needed to carry out further investigations. I have now done so and I have interviewed your former colleagues and line manager (whose names you provided to SJ Richardson by email on 21 June 2023). It was clear the grounds for you failing your probation and thereby the termination of your employment, were of a technical nature and not attributed to any behavioural factors arising from your disability. The following assessment hopefully provides you with some clarification as to the rationale behind you not meeting the standard required at Roke:• Project 1 - this role required hands on software leadership with experience of modern architectures, development techniques and processes. Unfortunately, on this project most of your experience was on legacy techniques and technologies and came across as academic.• Project 2 - on this project you missed the initiation meeting with the customer and subsequently provided information that was no longer relevant to the project. You continued to book to this project despite the Project Manager requesting you stop.• Project 3 - this was an internal project which you initially grasped quickly. However, the project needed much more technical direction from yourself in the early phases to help drive the project team. Most of the thoughts provided were using dated techniques and conceptual in outlook. During my investigation I also asked all parties referenced above whether they were aware of any declared mental health issues or whether you required any reasonable adjustments to accommodate you in those projects, to which they all advised they were not aware of any. In addition, the occupational health report that the Company received prior to you joining advised that we only needed to provide flexible working arrangements to support you. There is clear evidence that this was the case and in fact we made adjustments over and above which were reasonable to accommodate flexible working which it transpired you were using to perform another role with an academic institute. I appreciate that the disability was disclosed to our occupational health provider. However, as I have set out above, the disability did not cause or contribute to your dismissal and were for reasons unconnected to the same; it was because you did not demonstrate a sufficient level of technical ability that we expect for a Grade 6 Engineer acting as a Technical Lead/Solution Architect.”[89]TE in reply to Panel questions confirmed that the reason for what happened was that that Claimant did not demonstrate a sufficient level of technical ability. TE confirmed that it was entirely a technical issue.[90]The conclusions that TE reaches are supported by the recorded feedback at the time from multiple sources. We therefore accept what TE tells us.[91]THE LAW[92]Discrimination on the grounds of disability[93]The Claimant is alleging discrimination on the grounds of a protected characteristic under the provisions of the Equality Act 2010 (“the EqA”).[94]The Claimant complains that the Respondent has contravened a provision of part 5 (work) of the EqA. The Claimant alleges something arising from disability and a failure in the duty to make reasonable adjustments.[95]The protected characteristic relied upon is disability as set out in sections 4 and 6 of the EqA.[96]Disability[97]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 longterm 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.[98]It is not in dispute in this claim that the Claimant is a disabled person at times material to the matters complained about in respect of PTSD and co-morbid depression and anxiety. Aspergers as a disability for the Claimant at the material times is in dispute and the Respondent does not accept that it knew of the asserted disadvantage.[99]An individual has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities: s.6(1) EqA.[100]The burden of proof is upon the Claimant to prove he is disabled within the meaning of the statutory definition on the balance of probabilities. We are referred to Morgan v Staffordshire University [2002] IRLR 190, EAT.[101]We were also referred by Respondent’s Counsel to Underhill P in Royal Bank of Scotland v Morris UKEAT/0436/10/MAA … “[55] The burden of proving disability lies on the Claimant. There is no rule of law that that burden can only be discharged by adducing first-hand expert evidence, but difficult questions frequently arise in relation to mental impairment, and in Morgan v Staffordshire University [2002] IRLR 190, [2002] ICR 475 this tribunal, Lindsay P presiding, observed that “the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion” (see para 20(5), at p 485A-B); and it was held in that case that reference to the Applicant's GP notes was insufficient to establish that she was suffering from a disabling depression (see in particular paras 18-20, at pp 482-4).”[102]The definition of disability poses four essential questions:(1) Does the person have a physical or mental impairment?(2) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?(3) Is that effect substantial?(4) Is that effect long-term? These questions may overlap to a certain degree; however, the Tribunal should ensure that each step is considered separately and sequentially: Goodwin v Patent Office [1999] IRLR 4.[103]The activities affected must be “normal”. The EqA Guidance states (paragraph D3): “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.”.[104]The effect of an impairment can be more than ‘trivial’, yet still be ‘minor’ as opposed to ‘substantial’ - Anwar v Tower Hamlets College UKEAT/0091/1.[105]The EqA Guidance (paragraph B7) suggests that if a person can reasonably be expected to modify their behaviour to reduce the effects of an impairment on their normal day-today activities, they might not be considered disabled. In some cases, a coping or avoidance strategy might alter the effects of an impairment to the extent that they are no longer substantial.[106]Para. 5(1), Sch. 1, EqA states that an impairment will be treated as having a substantial adverse effect if measures are being taken to treat it or correct it and, but for those measures, the impairment would be likely to have that effect.[107]Para. 2(1), Sch. 1, EqA states that an impairment will have a long-term effect if:(1) it has lasted at least 12 months;(2) the period for which it lasts is likely to be 12 months; or(3) it is likely to last for the rest of the life of the person affected. In respect of the meaning of the word ‘likely’ as used in the above context, this means whether something “could well happen”: SCA Packaging Ltd v Boyle [2009] UKHL 37.[108]The Claimant referred us to Hewett v Motorola Ltd 2004 IRLR 545, EAT, in which the EAT held that an employment tribunal erred in holding that an employee diagnosed with Asperger syndrome was not disabled within the meaning of the DDA because the difficulties in relation to communication and social interaction that his impairment caused were not specifically included in the ‘capacities’ listed in paragraph 4(1) of Schedule 1 to the EqA. According to the EAT, the concept of ‘understanding’, which was included in paragraph 4(1), was not limited simply to an ability to understand information, knowledge or instructions, and a person who has difficulty in understanding normal social interaction among people and/or the subtleties of human non-factual communication can be regarded as having his or her understanding affected.[109]As to knowledge of disability, we note what the Court of Appeal held in Gallop v Newport City Council [2013] EWCA Civ 1358, [2014] IRLR 211 that … “For that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in section 1(1) of the DDA. Those facts can be regarded as having three elements to them, namely(a) a physical or mental impairment, which has(b) a substantial and long-term adverse effect on(c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Schedule 1.”.[110]The provisions relating to the burden of proof in discrimination cases are to be found in section 136 of the EqA, which provides 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, 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.[111]In respect of the burden of proof, there is a two-stage process for analysing the complaint. At the first stage, the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent had committed an unlawful act of discrimination against the Claimant. At the second stage, if the Claimant is able to raise a prima facie case of discrimination following an assessment of all the evidence, the burden shifts to the Respondent to show the reasons for the alleged discriminatory treatment and to satisfy the tribunal that the protected characteristic played no part in those reasons (Igen -v- Wong [2005] EWCA Civ 142 as affirmed in Ayodele -v- CityLink Ltd [2018] ICR 748).[112]We also note the recent decision of Efobi v Royal Mail Group Ltd (2021) ICR 1263 which confirmed that the reverse burden of proof remains good law under the EqA.[113]Also, considering Madarassy v Nomura International Plc [2007] ICR 867, Mummery LJ stated: “The Court in Igen v Wong expressly rejected the argument that it was 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. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination”.[114]The burden of proof does not shift to the Respondent simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that the Respondent had committed an unlawful act of discrimination (Madarassy). “Could conclude” must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of discrimination. It would also include evidence adduced by the Respondent contesting the complaint.[115]In Igen the Court of Appeal cautioned tribunals ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’ but made it clear that a finding of ‘unexplained unreasonable conduct’ is a primary fact from which an inference can properly be drawn to shift the burden.[116]Discrimination arising from disability (section 15 Equality Act 2010)[117]Section 15 of the Equality Act states: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[118]We remind ourselves that the correct approach to the operation of section 15 was set out at paragraph 31 by Simler P in the case of Pnaiser v NHS England [2016] IRLR 170. In essence, as summarised by Harvey at Q [1468], the position is:(1) Was there unfavourable treatment and by whom?(2) What caused the impugned treatment, or what was the reason for it?(3) Motive is irrelevant.(4) Was the cause/reason 'something' arising in consequence of the claimant's disability?(5) The more links in the chain of causation, the harder it will be to establish the necessary connection.(6) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.(7) The knowledge requirement is as to the disability itself, not extending to the 'something' that led to unfavourable treatment.(8) It does not matter in which order these matters are considered by the tribunal.[119]At paragraph 31(b) of Pnaiser, Simler P emphasised the focus of the analysis to be on the state of mind of the alleged discriminator as to the underlying reason for the allegedly unfavourable treatment. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but it must have at least a significant (or more than trivial) influence on the mind of the person alleged to have caused the unfavourable treatment.[120]We were also referred to Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, EAT by Respondent’s Counsel, per Langstaff P … “26 The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The tribunal has first to focus on the words "because of something", and therefore has to identify "something"--and second on the fact that that "something" must be "something arising in consequence of B's disability", which constitutes a second causative (consequential) link. These are two separate stages.”.[121]As to the knowledge question for the purposes of section 15 we were referred by Respondent’s Counsel to HHJ Eady QC (as she then was) in A Ltd v Z [2019] IRLR 952, [2020] ICR 199, EAT, who summarised the authorities as follows (at [23]): “(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR 746, [2018] ICR 1492 CA at para 39. (2) The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of s 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to his physical or mental health, or(b) that that impairment had a substantial and(c) long-term effect, see Donelien v Liberata UK Ltd (2014) UKEAT/0297/14, [2014] All ER(d) (D) 253 (Dec) at para 5, per Langstaff P, and also see Pnaiser v NHS England (2016) (2016) UKEAT/0137/15/LA, [2016] IRLR 170 EAT at para 69 per Simler J. (3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] EWCA Civ 129, [2018] IRLR 535 CA at para [27]; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant. (4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council (2016) UKEAT/0100/16, [2017] ICR 610, per His Honour Judge Richardson, citing J v DLA Piper UK LLP (2010) UKEAT/0263/09, [2010] IRLR 936, [2010] ICR 1052), and (ii) because, without knowing the likely cause of a given impairment, “it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]” [sic], per Langstaff P in Donelien EAT at para 31. (5) The approach adopted to answering the question thus posed by s 15(2) is to be informed by the Code, which (relevantly) provides as follows: “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.” (6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v T C Group (1998) EAT/137/97, [1998] IRLR 628; Alam v Secretary of State for the Department for Work and Pensions (2009) UKEAT/0242/09, [2010] IRLR 283, [2010] ICR 665). (7) Reasonableness, for the purposes of s 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.”[122]As to matters of causation we were referred to City of York Council v Grosset [2018] IRLR 746, CA per Lord Justice Sales: “36 On its proper construction, s 15(1)(a) requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) 'something'? and(ii) did that 'something' arise in consequence of B's disability. 37 The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant 'something'. In this case, it is clear that the respondent dis-missed the claimant because he showed the film. That is the relevant 'something' for the purposes of analysis. This is to be contrasted with a case like Charlesworth v Dransfields Engineering Services Ltd, EAT (Simler J), UKEAT/0197/16/JOJ, unreported, 12 January 2017, in which the reason the claimant was dismissed was redundancy, so that no liability arose under s 15 EqA, even though the redundancy of the claimant's job happened to be brought into focus by the ability of the defendant employer to carry on its business in periods when he was absent from work due to a disability. In that case, therefore, the relevant 'something' relied upon by the claimant was the claimant's absence from work due to sickness, but he was not 38 The second issue is an objective matter, whether there is a causal link between B's disability and the relevant 'some-thing'. In this case, on the findings of the ET there was such a causal link. The claimant showed the film as a result of the exceptionally high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work in the autumn term of 2013.”[123]Then as to a proportionate means of achieving a legitimate aim, that the legitimate aim being relied upon must in fact be pursued by the measure in question; however, as confirmed by the Supreme Court in Seldon v Clarkson Wright and Jakes [2012] IRLR 590, it is not necessary that the aim was either articulated or even realised at the time; ex post facto rationalisation is permissible.[124]The classic test was set out in Bilka-Kaufhaus GmbH v Weber Von Harz (Case 170/84) [1984] IRLR 317, ECJ in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (para 36).[125]It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board [1987] ICR 129, HL per Lord Keith of Kinkel at pp 142-143.[126]We were also referred to Homer v Chief Constable of West Yorkshire Police [2012] IRLR 600, SC. Further, that the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60. It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context. Reference was also made to Hensman v Ministry of Defence UKEAT/0067/14/DM, noting that … “the Employment Tribunal must reach its own judgment upon a fair and detailed analysis of the working practices and business considerations involved. In particular, it must have regard to the business needs of the employer.”.[127]Reasonable adjustments (sections 20 and 21 of the Equality Act 2010)[128]Section 20 of the Equality Act states:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[129]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 a disabled person has a disability and is likely to be placed at a disadvantage by the employer’s PCP, the physical features of the workplace, or a failure to provide an auxiliary aid — paragraph 20(1)(b).[130]Knowledge, in this regard, 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 said 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 his or her disability was liable to disadvantage him or her substantially?b. if not, ought the employer to have known both that the employee was disabled and that his or her disability was liable to disadvantage him or her substantially? Secretary of State for Work and Pensions v Alam 2010 ICR 665, EAT.[131]It is only if the answer to the second question is ‘no’ that the employer avoids the duty to make reasonable adjustments.[132]There is guidance in the case authority of Environment Agency v Rowan [2008] IRLR 20, [2008] ICR 218 as to what needs to be found in such claims, namely that in order to make a finding of failure to make reasonable adjustments there must be identification of:a. the provision, criteria or practice applied by or on behalf of an employer; orb. the physical feature of premises occupied by the employer;c. the identity of non-disabled comparators (where appropriate); andd. the nature and extent of the substantial disadvantage suffered by the claimant.[133]Also, as referred by Respondent’s Counsel, that it was noted by the EAT in Latif v Project Management Institute [2007] IRLR 579, EAT that:a. It was doubtful whether the burden shifts at all in respect of establishing the provision, criterion or practice, or demonstrating the substantial disadvantage, as they were simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant. These are not issues where the employer has information or beliefs within his own knowledge which the claimant cannot be expected to prove. To talk of the burden shifting in such cases is confusing and inaccurate; para 45b. By the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made; para 53c. The respondent is in the best position to say whether any apparently reasonable adjustment is in fact reasonable given his own particular circumstances. Therefore, the burden is reversed once a potentially reasonable adjustment has been identified; para 53[134]The scope of Tribunal’s enquiries[135]We note the case authorities referred to us by Respondent’s Counsel as to the scope of our enquiry in this case. These are relevant as we have been presented with written closing submissions, which on the part of the Claimant include material not referred to at the hearing. The authorities remind us that the Tribunal’s jurisdiction is limited to adjudication upon the claim as presented, Chapman v Simon [1994] IRLR 124, CA.[136]Further, Chandhok v Tirkey [2015] IRLR 195, EAT, paragraph 16 … “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013 (SI 2013/1237), the claim as set out in the ET1.”.[137]Also, Employment tribunals are constantly presented with irrelevant evidence; but most often it is better to make no fuss and simply disregard it, HSBC Asia Holdings BV v Gillespie [2011] IRLR 209, EAT, per Underhill P, as he then was.[138]THE DECISION[139]It is not in dispute that the Claimant is disabled by reason of posttraumatic stress disorder and co-morbid depression and anxiety at times material to this claim. We accept the Claimant is a disabled person for these reasons.[140]The Claimant also asserts that he has a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about, by reason of Asperger’s Syndrome. The evidence we were presented about this by the Claimant is extremely limited, based on what he included about it in his 8-page disability impact statement, the disclosed GP notes, and the letter dated 13 January 2014 disclosed as part of his written closing submissions.[141]It is for the Claimant to prove that the asserted Asperger’s syndrome has a substantial adverse effect on his ability to carry out day-to-day activities. If not, then did he have medical treatment, including medication, or take other measures to treat or correct the impairment, without which there would be such an impact. Further, that the effects of the asserted impairment were long-term, lasting at least 12 months, or likely to last at least 12 months, and if not, they were likely to recur.[142]Based on the evidence the Claimant has presented this Tribunal, even including his late disclosure, he has not proven all of those matters on the balance of probability in respect of his asserted disability of Asperger’s syndrome.[143]The Claimant’s complaint of discrimination arising from disability (section 15 of the Equality Act 2010) is limited to the act of dismissal. The Respondent accepts that it dismissed the Claimant, and it accepts that this amounts to unfavourable treatment.[144]The Claimant asserts that his disabilities mean that he has limited social skills with a very direct communication style, and he becomes very engrossed in his work. Further, that he was also prevented from being engaged in an architectural overview of the complex software on which he was required to work.[145]The Respondent asserts that the Claimant has not proven on the balance of probability that it had knowledge of all the ingredients of disability within the meaning of the Equality Act 2010. In particular, that a mental impairment had a substantial adverse effect on his day-to-day activities.[146]The Occupational Health report dated 6 October 2022 records that the Claimant disclosed a long-term mental health condition, for which he had treatment and strategies in place. It advised for management to be flexible with his working hours if that can be accommodated.[147]In the email dated 15 October 2022 the Claimant confirms as to reasonable adjustments being in particular flexible working hours. He suggests the hours he would like. Flexible hours are then agreed between the Claimant and the Respondent.[148]As of October 2022, the Respondent has knowledge the Claimant has a long-term mental health condition. Flexible hours are recommended by OH and that is all the Claimant seeks from the Respondent.[149]At the Probation Review Meeting on the 25 May 2023 the Claimant is recorded as referring to Aspergers when interpersonal skills are considered, it being noted that … “RP said he did not intend to be to be rude but he suffers from Aspergers so can be blunt and not always aware of this. He said he can get focused on the detail so be abrupt but he always tried to say thanks in emails for example but he accepted the feedback and said it was something he could work on.”.[150]This is the extent of the information it is documented as being known by the Respondent prior to the Claimant’s dismissal. It is not in dispute that the Claimant did not communicate to the Respondent that he suffered from intrusion and was unable to concentrate fully on his work.[151]We do not find that the Claimant has proven that the Respondent had the requisite knowledge of all the ingredients of disability, in particular that the mental impairment has a substantial adverse effect, so accept as asserted by the Respondent that the claim should fail for that reason. Further, we agree with the Respondent’s submissions that the Claimant has not proven on the balance of probability that he has limited social skills with a very direct communication style, and he becomes very engrossed in his work. Nor that he was prevented from being engaged in an architectural overview of the complex software on which he was required to work.[152]If though we are wrong in that regard, and we accept that the asserted things arose as a consequence of the Claimant’s disabilities, we have gone on to consider whether the unfavourable treatment (the dismissal) was because of any of those things. We have considered this with reference to the case authority of Pnaiser:a. Was there unfavourable treatment and by whom? Yes, and this is not in dispute, the Claimant was dismissed (the unfavourable treatment) by ND.b. What caused the impugned treatment, or what was the reason for it? The reason for the Claimant’s dismissal was his failing of the probation. By letter dated 25 May 2023 to the Claimant it is confirmed … “As you are aware, your employment at Roke was subject to successful completion of a probation period. Following a final review of your performance, it was determined that you had failed to perform to the standards required of the role and therefore had not successfully completed the probationary period. As a result, unfortunately, the Company has decided to dismiss you with effect from 25 May 2023.”. The reason the Claimant failed his probation was because of his technical ability. This has been demonstrated to us by the evidence presented by the Respondent, referring to the assessment of the Claimant on each of the projects he undertook, the probation review meeting and the appeal.c. Was the cause/reason 'something' arising in consequence of the Claimant's disability? No, the Claimant has maintained throughout that there is no issue with his technical ability. As the Claimant is recorded as stating in his appeal document … “I explained in my review meeting before I was dismissed that there were very good reasons why I took the technical approaches to the problems I was presented with. … Suffice it to say that I was trying to steer the projects away from a number of pitfalls that I have witnessed in my 27 years of conducting IT projects.”. The Claimant’s further grounds of appeal attribute to his asserted disabilities difficulties in a social context. They do not assert that his technical ability or capability was compromised in any way. He focuses in the further grounds on highlighting how he believed his technical ability was appreciated by the technical director. This is consistent with the way the Claimant presented his case to the Employment Tribunal and responded to cross examination at this hearing. Where criticism of his technical ability or capability was raised, his position was that they were wrong or lying. This is also consistent with the closing written submissions the Claimant makes.[153]We therefore find that the unfavourable treatment (the dismissal) was not because of any of the asserted things said to arise as a consequence of the Claimant’s disabilities.[154]We would also observe that in relation to the issue of whether the treatment was a proportionate means of achieving a legitimate aim, the Respondent’s pleaded legitimate aims are not in dispute. They are to:a. ensure that only a competent and/or qualified employee, with a sufficient level of technical ability expected by the Respondent for a Grade 6 Engineer acting as a Technical Lead/Solution Architect, occupied that role;b. maintain a proper and/or effective probation system; and/orc. ensure and maintain a competent and/or professional workforce[155]Considering whether:a. The treatment was an appropriate and reasonably necessary way to achieve those aims;b. Could something less discriminatory have been done instead;c. How should the needs of the Claimant and the Respondent be balanced?[156]About this we would observe that the Claimant was working under a probation period. A probation process was followed which included the Claimant trying different projects, being given feedback along the way, and then having a probation review meeting. He was also given a right of appeal which he exercised. The Claimant’s technical abilities were found by the Respondent to be insufficient, and the Claimant did not agree with the Respondent’s assessment. The Claimant failed his probation as a result and under the circumstances we would accept that dismissal is an appropriate and reasonably necessary way to achieve the Respondent’s legitimate aims.[157]Considering then the complaint of a failure in the duty to make reasonable adjustments (sections 20 and 21 of the Equality Act 2010).[158]The asserted PCP of requiring employees to achieve and maintain a certain standard of performance is not in dispute.[159]The Claimant claims that the PCP put him at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant suffered from intrusion, and was unable to concentrate fully on his work.[160]What the Respondent knew about the Claimant’s disabilities is in dispute and is a key element for this complaint. We need to determine whether the Respondent knew, or whether it could be reasonably expected to know that the Claimant had the disability, and if so from what date. Further, whether the Respondent knew, or whether it could be reasonably expected to know that the Claimant was likely to be placed at the asserted disadvantage?[161]The Respondent knew that the Claimant had a long-term mental health condition and needed an adjustment to his working hours based on the OH report and what the Claimant told the Respondent at the time in respect of the adjustments he expected. At the probation review the Claimant informed ND that he had Aspergers. However, the Claimant at no point asserts either directly or indirectly that that condition or any other type of disability or condition meant he suffered from intrusion and was unable to concentrate. The Claimant has not proven that the Respondent had the requisite knowledge of disability and in particular the substantial disadvantage. This complaint therefore fails for this reason and there is no need for us to go on and consider the proposed reasonable adjustments.[162]It is therefore the unanimous judgment of the Tribunal that the Claimant’s complaints of discrimination arising from disability and a failure in the duty to make reasonable adjustments, all fail and are dismissed. Employment Judge Gray Dated 29 January 202513 February 2025 By Mr J McCormick Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ ANNEX A[1]Time limits1.1 The claim form was presented on 28 August 2023. The claimant commenced the Early Conciliation process with ACAS on 8 June 2023 (Day A). The Early Conciliation Certificate was issued on 20 July 2023 (Day B). Accordingly, any act or omission which took place before 18 April 2023 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint.1.2 Were the discrimination complaints made within the time limit in section123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus the Early Conciliation extension) of the act or omission to which the complaint relates?1.2.2 If not, was there conduct extending over a period?1.2.3 If so, was the claim made to the Tribunal within three months (plus the Early Conciliation extension) of the end of that period?1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time?[2]Disability 2.1 Did the Claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide:2.1.1 Whether the Claimant had a physical or mental impairment. The claimant relies on a combination of Asperger’s Syndrome, Complex PTSD, and Anxiety and Depression for the purposes of these proceedings.2.1.2 Did it have a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities?2.1.3 If not, did the Claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?2.1.4 Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures?2.1.5 Were the effects of the impairment long-term? The Tribunal will decide:2.1.5.1 did they last at least 12 months, or were they likely to last at least 12 months?2.1.5.2 if not, were they likely to recur?[3]Discrimination Arising From Disability (s 15 Equality Act 2010)3.1 The claimant’s claim is limited to the act of dismissal. The respondent accepts that it dismissed the claimant, and it accepts that this amounted to less favourable treatment.3.2 Did the following things arise in consequence of the claimant’s disability? The claimant’s case is that his disabilities mean that he has limited social skills with a very direct communication style, and he becomes very engrossed in his work. He was also prevented from being engaged in an architectural overview of the complex software on which he was required to work. These aspects fed into his probation review and unjustified criticism.3.3 Was the unfavourable treatment because of any of these things which are said to have arisen from the claimant’s disability?3.4 Was the treatment a proportionate means of achieving a legitimate aim? The respondent will set out its defence of justification in full in its Amended Response.3.5 The Tribunal will decide in particular:3.5.1 Was the treatment an appropriate and reasonably necessary way to achieve those aims;3.5.2 Could something less discriminatory have been done instead;3.5.3 How should the needs of the claimant and the respondent be balanced?3.6 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? If so, from what date?[4]Reasonable Adjustments (ss 20 and 21 Equality Act 2010)4.1 Did the respondent know or could it reasonably have been expected to know that the claimant had the disability? If so from what date?4.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP, namely requiring employees to achieve and maintain a certain standard of performance.4.3 Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the claimant suffered from intrusion, and was unable to concentrate fully on his work?4.4 Did the respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?4.5 What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The claimant suggests:4.5.1 allowing him time to concentrate; and4.5.2 allowing lengthier training, particularly on the Amazon Web service platform; and4.5.3 making allowances for the claimant’s disability during the probationary process.4.6 Was it reasonable for the respondent to have to take those steps and when?4.7 Did the respondent fail to take those steps?[5]Remedy - Discrimination5.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?5.2 What financial losses has the discrimination caused the claimant?5.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?5.4 If not, for what period of loss should the claimant be compensated for?5.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?5.6 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?5.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the claimant and, if so, by what proportion up to 25%?5.8 Should interest be awarded? If so, how much?