Mr N James v The Venture (Wrexham) Ltd: 1601001/2024

EMPLOYMENT TRIBUNALS

Case No 1601001/2024

Between

Mr N JamesClaimant

The Venture (Wrexham) LtdRespondent

Before

Employment Judge S Jenkins

Mr G Pollitt (instructed by Counsel) for claimant

Mr M Cameron for respondent

Date 19 February 2025

JUDGMENT

[1]The Claimant’s complaint of discrimination arising from disability, pursuant to section 15 of the Equality Act 2010 (“EqA”), succeeds in part.

[2]The Claimant’s complaint of failure to make reasonable adjustments, pursuant to section 21 of the EqA, succeeds in part.

[3]The Claimant’s complaint of harassment related to sexual orientation, pursuant to section 26 EqA, was brought outside the stipulated time limit, and it is not just and equitable to extend time. The complaint is therefore dismissed.

[4]The Claimant’s complaint of harassment related to disability, pursuant to section 26 EqA, succeeds in part.

[5]The Claimant’s complaint of victimisation, pursuant to section 27 EqA, succeeds.

[6]The Claimant’s complaint of unauthorised deductions from wages, pursuant to section 23 of the Employment Rights Act 1996, succeeds. Remedy

[7]In relation to the Claimant’s successful complaints of disability discrimination, the following recommendations are made: 7.1. That the Claimant be reinstated to his Open Access Playworker role, alongside his Inclusion Project Playworker role, with effect from 16 February 2024. 7.2. That the Respondent pay to the Claimant all appropriate salary payments in respect of the period from 16 February 2024, subject to appropriate statutory deductions and deductions in respect of employee pension contributions, which must be paid to the appropriate pension scheme. 7.3. That the Respondent pay to the appropriate pension scheme employer pension contributions in respect of the period from 16 February 2024.

[8]The Respondent is ordered to pay the Claimant the following sums: 8.1. £15,000.00 in respect of injury to feelings in relation to his successful complaints of disability discrimination, together with interest of £1,209.86, making a total of £16,209.86. 8.2. £945.00 gross in respect of unauthorised deductions from wages. In total therefore, the Respondent is ordered to pay the Claimant the sum of £17,154.86 Authorised for issue by JUDGMENT having been sent to the parties on 20 February 2025, and reasons having been requested by the Claimant in accordance with Rule 62(3) of the Rules of Procedure 2013:

REASONS

[1]The hearing was to consider the Claimant’s complaints of; discrimination arising from disability, failure to make reasonable adjustments, harassment related to sexual orientation, harassment related to disability, victimisation, and unauthorised deductions from wages.

[2]On behalf of the Claimant we heard evidence from the Claimant himself, and from Mr Siôn Edwards, his life partner and also an employee of the Respondent. On behalf of the Respondent we heard evidence from the following witnesses: Malcolm King, Chief Officer; Linda Platt, Deputy Chief Officer; Marcien Flakiewicz, Play Worker and Maintenance Worker; Julie Humphreys, Administrator and Financial Officer; and Colin Powell, Project Development Manager.

[3]We considered the documents in a hearing bundle spanning 492 pages to which our attention was drawn, and the content of three short video and CCTV recordings. We also considered the parties’ closing submissions.

Issues

[4]The issues we had to determine had been agreed following a Preliminary Hearing before Judge Lloyd-Lawrie on 18 September 2024 and were as follows: Time limits – Equality Act 2010 claims

Issues

[1]Have the Claimant's claims of disability and/or sexual orientation discrimination been brought within three months of the acts complained of, taking into account the effect of the ‘stop the clock’ provisions in respect of early conciliation? (EqA 2010, ss 123(1)(a) and 140B))

[2]In respect of the Claimant’s complaints which are based on the Respondent’s failure to do something, when is the Respondent to be treated as having decided those things? (EqA 2010, s 123(4))

[3]In respect of any complaints which are out of time, do they form part of a continuing act, taken together with acts which are in time? (EqA 2010, s 123(3)(a))

[4]If the complaints were not submitted in time, would it be just and equitable to extend time? (EqA 2010, s 123(1)(b)) Time limits – Unauthorised deduction from wages

[5]Did the Claimant submit his claim before the end of the period of three months beginning with the date of the deduction, taking into account the effect of the ‘stop the clock’ provisions in respect of early conciliation? (ERA 1996, ss 111(2)(a), 207B)

[6]If not, was it not reasonably practicable for the Claimant to submit the claim in time? (ERA 1996, s 111(2)(b))

[7]If so, did the Claimant submit the claim within such further period as was reasonable? (ERA 1996, s 111(2)(b)) Disability

[8]The Respondent has confirmed that it accepts the Claimant a disabled person for the purposes of the Equality Act 2010 at the relevant time by reason of Autistic Spectrum Condition and anxiety as a cooccurring condition between at least 18 July 2023 to 16 February 2024 (EqA 2010, s 6 and Schedule 1). Discrimination because of something arising from disability (s. 15 Equality Act 2010)

[9]Did the Respondent know or could it have been reasonably expected to know that the Claimant had a disability? (EqA 2010, s 15(2));

[10]Did the Respondent treat the Claimant less favourably because of something arising in consequences of his disability? (EqA 2010, s 15(1)(a)) The Claimant relies on excluding him from public events on 29 July 2023, 31 October 2023, 04 November 2023 & 21 December 2023 as being an act of unfavourable treatment because of the Claimant being unable to attend public events with continuous music being played because artificial background noise, regardless of the volume, increases his stress and anxiety levels which can overwhelm him, in particular when he is performing tasks which arose in consequence of his disability.

[11]Can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? (EqA 2010, s 15(1)(b)) Insofar as may be necessary, the Respondent relies on its aims of: maximising engagement of children, young people and adults attending said public events. Discrimination because of something arising from disability (s. 15 Equality Act 2010)

[12]Did the Respondent know or could it have been reasonably expected to know that the Claimant had a disability? (EqA 2010, s 15(2));

[13]Did the Respondent treat the Claimant less favourably because of something arising in consequences of his disability? (EqA 2010, s 15(1)(a)) The Claimant relies on removing him from his second role from 16 February 2024 onwards as being an act of unfavourable treatment because of the Claimant being unable to return to his second role as a result of the Respondent’s ongoing failure to support this and, in particular, as the Respondent was responsible for the exacerbation of his anxiety and stress levels, which arose in consequence of his disability.

[14]Can the Respondent show that the treatment was a proportionate means of achieving a legitimate aim? (EqA 2010, s 15(1)(b)) Insofar as may be necessary, the Respondent relies on its aims of: The Respondent was unable to make the adjustments the Claimant appears to contend would have enabled him to work open-access shifts, and so the Respondent had no alternative but to allocate that work to other staff. The Respondent had serious safeguarding concerns in relation to both the Claimant and children in his care on such shifts as the Claimant had indicated that working open access shifts had caused him to have thoughts of taking his own life. Failure to comply with duty to make reasonable adjustments – provision, criterion or practice (ss 20-21 Equality Act 2010)

[15]Did the Respondent apply a provision, criterion or practice (PCP) to the Claimant? (EqA 2010, s 20(3)) The Claimant relies upon the following PCP in the form of arranging for continuous music being played at public events on 29 July 2023, 31 October 2023, 04 November 2023 & 21 December 2023.

[16]In respect of each PCP relied upon, did that PCP put the Claimant at a substantial disadvantage because artificial background noise, regardless of volume, increases his stress and anxiety levels which can overwhelm him, in particular, when he is performing tasks in comparison with persons who are not disabled? (EqA 2010, s 20(3))

[17]Did the Respondent know or ought it to have known that the Claimant

[18]Did the Respondent take such steps as were reasonable to avoid that disadvantage? (EqA 2010, s 20(3)) reasonable but were not taken by the Respondent: Allowing for a period of time with no music on. Failure to comply with duty to make reasonable adjustments – physical feature (ss 20-21 Equality Act 2010)

[19]Did the Claimant come into the contact with a physical feature? (EqA 2010, s 20(4)) The Claimant relies upon the following physical feature: light in staff kitchen on 02 December 2023.

[20]In respect of each physical feature relied upon, did that physical put the Claimant at a substantial disadvantage because artificial lighting increases his stress levels and it can feel like his skin is burning when exposed to this in comparison with persons who are not disabled? (EqA 2010, s 20(4))

[21]Did the Respondent know or ought it to have known that the Claimant

[22]Did the Respondent take such steps as were reasonable to avoid that disadvantage? (EqA 2010, s 20(4)) reasonable but were not taken by the Respondent: providing a lamp and/or softer lighting in the staff kitchen. Failure to comply with duty to make reasonable adjustments – physical feature (ss 20-21 Equality Act 2010)

[23]Did the Claimant come into the contact with a physical feature? (EqA 2010, s 20(4)) The Claimant relies upon the following physical feature: radio and/or music being turned on during his open access shifts on: 18, 20 & 25 July 2023 in the Respondent’s adventure playground (LP), 03 August 2023 on the Respondent’s driveway of the adventure playground (LP), 18 August 2023 in the adventure playground (Colin Powell (“CP”)), 24 August 2023 on the driveway (Marcin Flakiewicz (“MF”)), 26 August 2023 on the sandpit on the adventure playground (LP), 21 October 2023 in the firepit hut on the adventure playground (LP) & 02 November 2023 on the driveway (CP). The Claimant also relies upon the following physical feature: power tools being used on during his open access shifts on 03 August 2023 in the driveway (CP) & 24 August 2023 in the driveway (MF & CP).

[24]In respect of each physical feature relied upon, did that physical put the Claimant at a substantial disadvantage because artificial background noise, regardless of the volume, increases his stress and anxiety levels which can overwhelm him, in particular, when he is performing tasks in comparison with persons who are not disabled? (EqA 2010, s 20(4))

[25]Did the Respondent know or ought it to have known that the Claimant

[26]Did the Respondent take such steps as were reasonable to avoid that disadvantage? (EqA 2010, s 20(4)) reasonable but were not taken by the Respondent: Having the radio and/or music turned off during his open access shifts; and Making arrangements for power tools to be used outside of his working hours / open access shifts. Harassment related to a protected characteristic (s 26 Equality Act 2010)

[27]Did the Respondent’s behaviour amount to: 27.1. unwanted conduct; 27.2. related to the Claimant’s disability and sexual orientation; 27.3. which had the purpose or effect of violating the Claimant’s dignity and/or creating an environment that was intimidating, hostile, degrading, humiliating or offensive to the Claimant? (EqA 2010, s 26(1)) The Claimant relies on the following conduct: LP1 – para. 19 On 08 August 2023, LP made comments to the Claimant that religion should be a person’s choice, such as LP choosing the nickname ‘Bronson’ and, the Claimant choosing his sexuality. LP made these comments to the Claimant in the firepit hut on the adventure playground and in the context of being gay was a choice, likened to her choosing a nickname (sexual orientation). LP2 – para. 21 On 22 August 2023, LP informed the Claimant of an encounter with a group of male children during the previous open access session where they had all been ‘kegging’ one another, to which she asked them “what are you trying to see lads?”. LP made these comments to the Claimant in the firepit hut on the adventure playground and in the context of implying that those children might be gay to embarrass them and encourage them to stop doing this (sexual orientation). LP3 – para. 23 On 24 August 2023, LP made comments to the Claimant that the bullying of a child would perhaps stop if “he was not so out and proud”. LP made these comments to the Claimant outside the Youth Container on the adventure playground and in the context of if the child, who self-identifies as gay, was not visibly or audibly perceived to be effeminate or assertive of his sexuality (sexual orientation). LP1 – para. 12 On 18, 20 & 25 July 2023, LP was playing music on her phone, on the adventure playground] (disability). LP2 – para. 24 On 26 August 2023, LP was playing music on her phone, on the sandpit on the adventure playground (disability). LP3 – para. 25 On 21 October 2023, LP was playing music on her phone, in the firepit hut on the Respondent’s adventure playground (disability). LP4 On 02 December 2023, LP held a reflective practice in the staff kitchen with a bright light (disability). MK1 On 30 October 2023, MK sent an email to the Claimant explaining that both he and LP were finding it difficult to find time together to discuss ‘solutions that are practical and don’t jeopardise children’s welfare and enjoyment’ (disability). MK2 On 31 October 2023, MK sent the Claimant an email confirming that he had instead decided it would be quite wrong to prevent having the music on at Halloween and so, he would need to reschedule the Claimant’s hours (disability). MK3 – para. 31 On 02 November 2023, MK told the Claimant that “not to have had any music would have been damaging to the event and it didn’t feel like there was going to be any way around that” and blamed the Claimant for not approaching LP about this. MK made these comments to the Claimant in the meeting room of the Integrated Children’s Centre building and in the context of music as a source of entertainment being more important than the Claimant’s reasonable adjustments and that the responsibility to discuss the matter (beyond his email on 23 October 2023) fell on him (disability). MK4 – para. 35 On 09 November 2023, MK made some ‘jokes’ about the Claimant’s situation and asked him, “We want to find ways of making that work – even though it’s a pain the arse, Nic. Why can’t you be ordinary and perfect like the rest of us? Jokes aside, having always been something of a weirdo myself, I have some sympathy…”. . MK made these comments to the Claimant in a Zoom meeting – MK at his home, LP in her works office, and Claimant and SE in the Respondent’s computer room and in the context of trying to make light of the Claimant’s situation and need for reasonable adjustments (disability). MK5 – para. 40 On 09 November 2023, MK told the Claimant that “other people [who] suffer from neurodevelopmental issues” who do not have an issue with the radio on and, when the Claimant prefers not to use the term ‘suffer’ and he explained that this is instead his experience with his condition, MK insisted that “it’s not a pleasant experience”. MK made these comments to the Claimant in a Zoom meeting – MK at his home, the Claimant and SE at their home and in the context of dismissing the Claimant’s accounts of his experience as an autistic person, asserting that his view was more authoritative, and to be rude about this (disability). MK6 – para. 44 On 20 November 2023, MK told the Claimant that the failure to implement his reasonable adjustments will continue to happen and this was because he and LP “are trying to run an organisation with half of the resources that we need and that stretches people out to beyond breaking point”. MK made these comments to the Claimant in a Zoom meeting – MK at his home, LP at her home, the Claimant and SE at their home and in the context of excusing the lack of priority MK and LP had assigned the implementation of the Claimant’s reasonable adjustments and that the necessity to do so was an inconvenience to them since this was impacting, what they perceived to be, more important matters (disability). MK7 – para. 78 On 09 February 2024, MK questioned the Claimant’s ability to work in open access sessions and, compared that to someone not being able to work after a “good booze up”. MK also questioned whether the Claimant’s mental health would “get in the way” of him being able to pick up on the children’s emotions. MK made these comments to the Claimant in a Zoom meeting – MK at his home, the Claimant and SE at their home and in the context of dismissing the Claimant’s own assessment of mental health and wellbeing, and portraying the Claimant as someone who was impaired and unable to properly fulfil their role of working with children (disability). MK8 – para. 82 On 09 February 2024, MK made comments about the Claimant working open access shifts “makes [him] feel like killing [himself]” and confirmed that he had reached a decision to remove the Claimant from the open access shifts as it was more likely to make him “vulnerable to having suicidal thoughts” and because working with LP again might make him “feel terrible, to the point of feeling suicidal” as he does not “trust her not to enforce the reasonable adjustments”. MK made these comments to the Claimant in a Zoom meeting – MK at his home, the Claimant and SE at their home and in the context of placing the onus of a failure to enforce reasonable adjustment on the Claimant’s perception of LP’s abilities, rather than assessing LP’s compliance with upholding the Claimant’s reasonable adjustments and supporting him appropriately, as his manager (disability). JH1 – para. .37 On 09 November 2023, JH said to the Claimant, “There are certain things that can happen and certain things that cannot [happen]”. JH made these comments to the Claimant in the foyer of the Integrated Children’s Centre building and, in the context of blaming him for struggling with trying to maintain his reasonable adjustments in the workplace (disability). Victimisation (s 27 Equality Act 2010)

[28]Did the Claimant do a protected act within the meaning of section 27(2) of the Equality Act 2010? The Claimant relies on the following: he submitted a formal grievance highlighting serious allegations of discrimination in the workplace on 12 December 2023 in an email sent to JG (Chair of the Board of Trustees).

[29]Did the Respondent subject the Claimant to a detriment because the Claimant had done a protected or the Respondent believed that the Claimant had done, or may do, a protected act? (EqA 2010, s 27(1)) The Claimant relies on the following: The Claimant was removed from his second role and has not been paid his wages for open access shifts from 08 January 2024. Unauthorised deduction from wages (s 13 Employment Rights Act 1996)

[30]Did the Respondent make an unauthorised deduction from the Claimant’s wages (ERA 1996, s 13(1)) The Claimant relies on the following: The Claimant has not been paid wages for open access shifts from 08 January 2024.

[31]What declarations, if any, as to the rights of the Claimant and Respondent would be appropriate? (EqA 2010, s 124(a))

[32]What compensation, if any, should the Respondent be ordered to pay to the Claimant? (EqA 2010, s 124(2)(b)) In particular: 32.1. what financial losses has the Claimant sustained as a result of any acts of discrimination which the Tribunal finds to be made out? 32.2. has the Claimant made reasonable attempts to mitigate his losses? 32.3. what injury to feelings, if any, has the Claimant sustained?

[33]Did the Respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures? If so, would it be just and equitable to increase the award of compensation? If so, by what percentage (up to a maximum of 25%)? (TULR(C)A 1992, s 207A(2))

[34]What interest, if any, should be added to the compensatory award?

[35]Does the compensatory award need to be grossed up to take into account the impact of taxation?

[36]What recommendations, if any, would be appropriate? (EqA 2010, s 124(2)(c)) 5. We discussed at the outset of the hearing that the Claimant’s unauthorised deductions from wages complaint involved payments said to have been due from January 2024 onwards which, bearing in mind that matters going back to 2 November 2023 were in time, had clearly been brought in time. We did not therefore need to address paragraphs 5 to 7 of the List of Issues. 6. We considered all the other issues, i.e. all the liability issues, and, in light of our conclusions on liability, all the remedy issues. Law Time Limits 7. With regard to time limits in discrimination claims, Section 123 of the Equality Act 2010 (“EqA”) provides as follows: “123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.” 8. The three-month period is to be extended by virtue of any time spent pursuing early conciliation with ACAS, which essentially means that a claimant must make contact with ACAS for the purposes of early conciliation during that three months. 9. With regard to conduct extending over a period, the Court of Appeal, in Commissioner of Police of the Metropolis v Hendricks

[2003] ICR 530

, noted that the Tribunal must look at the substance of the complaints in question and determine whether they can be said to be part of one continuing act by the employer and thus linked to each other. 10. A course of conduct where individual acts are linked, either by reference to the application of a policy or practice or in another way, and where the last such connected act falls within time, will mean that all such acts will fall within time. The Employment Appeal Tribunal (“EAT”) confirmed however, in South Western Ambulance Service NHS Trust -v- King

[2020] IRLR 168

, that reliance is not to be placed on “some floating or overarching discriminatory state of affairs without that state of affairs being anchored by specific acts of discrimination occurring over time”. 11. With regard to the potential just and equitable extension of time, the Court of Appeal, in Robertson -v- Bexley Community Centre

[2003] IRLR 434

, noted that there is no presumption in favour of extending time in discrimination claims, and it is for the claimant to convince the Tribunal that it is indeed just and equitable to extend time. 12. The EAT in British Coal Corporation -v- Keeble

[1997] IRLR 336

, noted that the provisions of Section 33 of the Limitation Act 1980, which applies to civil claims, should also be applied in relation to Tribunal claims. That involves an assessment of the prejudice to each party and an assessment of all the circumstances of the case, which includes; the length of and reasons for the delay, the extent to which the cogency of evidence is likely to be affected, the extent to which the party sued has cooperated with the requests for information, the promptness with which the Claimant acted once they knew of the facts, and the steps taken by the Claimant to obtain advice. It is clear however that an assessment of all the circumstances is to be undertaken. 13. Further guidance on this issue was provided by the Court of Appeal in Adedeji -v- University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, that the guidance provided in the Keeble case should not be treated as a checklist, as that would lead to a mechanistic approach to what is meant to be a very broad general discretion. The Court of Appeal guidance was that the best approach for a Tribunal, in considering the exercise of its discretion, is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including, in particular, the length of, and the reasons for, the delay. Discrimination arising from disability 14. Section 15(1) of the EqA, which is headed 'Discrimination arising from disability', provides that, “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.” 15. In Pnaiser v NHS England and anor

[2016] IRLR 170

, the EAT summarised the proper approach to establishing causation under section 15. First, the tribunal must identify whether the claimant was treated unfavourably and by whom. It must then determine what caused that treatment — focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person but keeping in mind that the actual motive of the alleged discriminator in acting as he or she did is irrelevant. The tribunal must then establish whether the reason was ‘something arising in consequence of the claimant’s disability’, which could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. 16. With regard to the justification of any unfavourable treatment that may be considered to have arisen we noted that the EAT provided guidance, in the second case of Department for Work and Pensions -v- Boyers

[2022] IRLR 741

, at para. 22: “When assessing whether unfavourable treatment can be justified as a proportionate means of achieving a legitimate aim, the discriminatory effect of the treatment must be balanced against the reasonable needs of the employer. The treatment must be appropriate and reasonably necessary to achieving the aim. The more serious the impact, the more cogent must be the justification for it. It is for the ET to undertake this task; it must weigh the reasonable needs of the employer against the discriminatory effect of the treatment and make its own assessment of whether the former outweigh the latter.” Reasonable adjustments 17. Section 20 EqA provides as follows: “20 Duty to make adjustments (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. 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…”

(4) The second requirement is a requirement, where a physical feature 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 … (9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to— (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it. (10) A reference in this section, … to a physical feature is a reference to— (a) a feature arising from the design or construction of a building, (b) a feature of an approach to, exit from or access to a building, (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or (d) any other physical element or quality. 18. The “applicable Schedule” is Schedule 8, and that provides, at paragraph 20, that a respondent is “not subject to a duty to make reasonable adjustments if [it] does not know, and could not reasonably be expected to know -… that [the claimant] has a disability and is likely to be placed at the disadvantage…”. 19. Our focus here would be, as identified by the EAT in Environment Agency -v- Rowan

[2008] IRLR 20

, on identifying: (i) The provision criterion or practice applied by or on behalf of an employer, or the physical feature relied upon; (ii) The identity of non-disabled comparators, where appropriate; and (iii) The nature and extent of the substantial disadvantage suffered by the Claimant, in comparison to the non-disabled comparators. 20. In this regard, the Claimant was relying on a hypothetical non-disabled comparator. As noted by the Court of Appeal in Smith v Churchills Stairlifts plc

[2006] ICR 524

, the test is an objective one and it is ultimately the employment tribunal’s view of what is reasonable that matters. The focus is on assessing whether a PCP had indeed been applied, whether the employee was, as a result, placed at a substantial disadvantage, and then whether the employer had taken such steps as were reasonable to avoid any disadvantage caused. 21. A claim of a failure to make reasonable adjustments may therefore require a tribunal to take the unusual step of substituting its own view for that of the employer, in marked contrast to the approach taken in respect of unfair dismissal, where such an approach amounts to an error of law. Harassment 22. Section 26 EqA notes that: “(1) A person (A) harasses another person (B) if – a. A engages in “unwanted conduct related to a relevant protected characteristic, and

b. The conduct has the purpose or effect of – i. violating B’s dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” 23. In assessing whether that had taken place in this case, we would first have to assess whether the matters asserted had taken place, and whether they amounted to "unwanted conduct". 24. If we were satisfied that there had been unwanted conduct, we would then need to consider whether it had related to the Claimant’s disability, "related to" having a broad meaning, certainly wider than "because of" or "on the ground of". 25. Finally, if we were satisfied that there had been unwanted conduct which related to the Claimant’s disability, we would need to consider whether it had had the purpose or effect of violating the Claimant's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. 26. In deciding whether the Respondent's conduct, if it took place, had the effect of violating the Claimant's dignity or of creating an intimidating etc. environment for him, section 26(4) EqA notes that three matters are to be taken into account; the Claimant’s perception, the other circumstances of the case, and whether it was reasonable for the conduct to have had that effect, a test which therefore has both subjective and objective elements. 27. In relation to violating dignity, the EAT, in Richmond Pharmacology v Dhaliwal

[2009] ICR 724

, noted that dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. 28. In a similar vein, the Court of Appeal noted, in Land Registry v Grant

[2011] ICR 1390

at paragraph 47, that, “Tribunals must not cheapen the significance of these words [i.e. the words of section 26(1)(b) – “violating dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment”]. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” Victimisation 29. Section 27(1) EqA provides as follows: "(1) A person (A) victimises another person (B) if A subjects B to a detriment because - B does a protected act,…” 30. Section 27(2) then notes that a protected act includes: “(c) doing any other thing for the purposes of or in connection with this Act, (d) making an allegation (whether or not express) that A or another person has contravened this Act.” 31. With regard to detriment, the House of Lords noted, in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

, that a detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his or her disadvantage; an unjustified sense of grievance cannot amount to a detriment, but the Court did emphasise that whether a Claimant has been disadvantaged is to be viewed subjectively. 32. The Equality and Human Rights Commission Code of Practice on Employment 2020 also gives some guidance on the definition of detriment as follows: "Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage." 33. The test of causation in a victimisation complaint (”because”) is the same as that in relation direct discrimination under section 13 (“because of”). It is whether the relevant decision was materially influenced by the doing of a protected act. This is not a 'but for' test, it is a subjective test. The focus is on the 'reason why' the alleged discriminator acted as he did. In West Yorkshire Police v Khan

[2001] IRLR 830

, the House of Lords noted that a Tribunal must identify "the real reason, the core reason, the causa causans, the motive". Burden of proof 34. Section 136 Equality Act 2010 deals with the burden of proof in discrimination cases and provides as follows: "(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision." 35. A two stage test is therefore usually involved. First, the claimant has to prove facts from which the Tribunal could decide that discrimination had taken place, and secondly, if so, the burden of proof then shifts to the respondent, which would have to prove, on the balance of probability, a nondiscriminatory reason for the treatment in question. 36. We noted that the Court of Appeal, in Madarassy -v- Nomura International PLC

[2007] ICR 867

, confirmed that the statutory provisions dealing with the burden of proof require something more than less favourable treatment compared with someone not possessing the Claimant’s protected characteristic. In that case, Mummery LJ noted, at paragraph 56, that, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.

Law

[37]We also noted that Sedley LJ, in Deman -v- The Commission for Equality and Human Rights

[2010] EWCA Civ 1279

, had confirmed that the “more” needed to create a claim requiring an answer need not be a great deal. In some instances it may be furnished by the context in which the act has allegedly occurred. Unauthorised deductions from wages

[38]Section 13(1) of the Employment Rights Act 1996 (“ERA”) provides that "An employer shall not make a deduction from wages of a worker employed by him unless -(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.".

[39]Section 13(3) ERA then provides that, “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

[40]The Court of Appeal, in New Century Cleaning Co Ltd -v- Church

[2000] IRLR 27

, noted that “properly payable” means that some legal entitlement to the sum in question is required, and that a legal entitlement to wages means a legal entitlement arising from the contract.

[41]The EAT, in Greg May (Carpet Fitters & Contractors) Ltd -v- Dring

[1990] ICR 188

, noted that Employment Tribunals must decide, on the ordinary principles of common law and contract, the total amount of wages that was properly payable to the worker on the relevant occasion.

[42]Section 124 EqA provides as follows: “Remedies: general(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.

(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate. … (6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119.”

[43]In terms of injury to feelings, we noted the direction provided by the EAT in Prison Service and others -v- Johnson

[1997] ICR 275

that:(i) Awards for injury to feelings are designed to compensate the injured party fully, but not to punish the guilty party.

(ii) Awards should not be so low as to diminish respect for the policy of the discrimination legislation, but, on the other hand, should not be so excessive that they may be regarded as untaxed riches.

(iii) Awards should bear some broad general similarity to the range of awards in personal injury cases.

(iv) In exercising their discretion, Tribunals should remind themselves of the value in everyday life of the sum they have in mind.

(v) Tribunals should bear in mind the need for public respect for the level of awards made.

[44]We also bore in mind the seminal Court of Appeal decision of Vento -v- Chief Constable of West Yorkshire Police (No. 2)

[2003] IRLR 102

, in which it set out the three “bands” in which awards should be assessed; the top band (£35,200 to £58,700 in the period relevant for this case) for the “most serious cases, such as where there has been a lengthy campaign of discriminatory harassment”, the middle band (£11,700 to £35,200) for “serious cases which do not merit an award in the highest band”, and the lower band (£1,200 to £11,700) for “less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”.

[45]We also noted that the EAT, in Voith Turbo Ltd -v- Stowe

[2005] IRLR 228

, observed that a discriminatory dismissal is not to be considered as a one-off event, but should fall within the middle Vento band. Findings

Introduction

[46]Our findings of fact, relevant to the issues we had to determine, were as follows. There was, in fact, little dispute over most of the factual matters giving rise to the Claimant’s claim, only over the interpretation of those facts, but where there was any dispute we resolved it on the balance of probability.

[47]In assessing the balance of probability we took into account the guidance of Mr Justice Leggett, as he then was, in the commercial case of Gestmin -v- Credit Suisse UK

[2013] EWHC 3560

, where he warned that memory is especially unreliable when it comes to recalling past beliefs, as memories of past beliefs are revised to make them consistent with present beliefs. The Judge noted that the process of litigation itself subjects the memories of witnesses to powerful biases, where the nature of litigation is such that witnesses often have a powerful stake in their version of events. The outcome of the Judge’s observations was that he felt that the best approach to adopt was to place little, if any, reliance on witnesses recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from documentary evidence and from known or probable facts.

[48]This case was one where the parties had singular views on what had happened, and how what happened should be assessed, to the extent that there was an understandable danger that their evidence had been adapted to reflect their views. We therefore took support from documented contemporaneous accounts which were, in several areas, drawn from covert recordings made at various meetings by the Claimant and/or Mr Edwards. The Claimant

[49]The Claimant was diagnosed with Autism Spectrum Condition (“ASC”) in January 2019. A letter from the local Integrated Autism Service dated 13 February 2020 noted that he, “experiences differences in social and emotional understanding and communication as well as aspects of repetitive restricted fixed interests and sensory issues”. The Claimant also suffers from anxiety as a co-occurring condition, for which he has been prescribed Citalopram on a long term basis.

[50]Having worked in retail and administrative roles, the Claimant initially volunteered in March 2021 as a Play Worker on the Respondent’s inclusion project, which focuses on play work provision for children with neurodevelopmental conditions, primarily ASC. That then developed into an employed position on 20 July 2021, when the Claimant became a Project Worker. His role still focused on the Respondent’s inclusion projects, working on closed access inclusion play work provision or “PIP”, and a similar youth work provision, or “YIP”.

[51]The PIP sessions ran on Saturday mornings, when the Claimant would work four hours, whilst the YIP sessions would run on Wednesday evenings, where the Claimant would also work four hours.

[52]Throughout his employment with the Respondent, the Claimant has undertaken another job alongside his work for the Respondent, initially for the Royal Voluntary Service, and subsequently for the Local Health Board. The Respondent

[53]The Respondent was established in 1978 as an adventure playground on a two-acre site in Caia Park in Wrexham, understood to be the largest council housing estate in Wales, and to have the highest levels of child poverty in Wales. Over the years, it has developed into an organisation providing a range of community-based services, primarily for the benefit of children and young persons.

[54]As well as the inclusion project work for which the Claimant was initially engaged, the Respondent also operates open access sessions on Tuesday to Friday evenings, and on Saturday afternoons, and for longer periods in school holidays.

[55]The open access sessions are available to all, whereas the inclusion project sessions are limited to those with neurodevelopmental conditions. As a result, the attendees at the inclusion project sessions tend to be drawn from a wider geographical area, with attendees usually accompanied by a parent. Attendees at open access sessions tend to come more from the local area, without regular parental accompaniment.

[56]In terms of staffing, the Respondent operates with a small number of employees, Mr King is, and it appears always has been, the Respondent’s Chief Officer, with Mrs Platt having been his Deputy Chief Officer for several years, having the main operational role on site. The Claimant’s initial role

[57]The Claimant was introduced to the Respondent by Mr Edwards, who already worked for the Respondent. The Claimant obtained his Project Worker role in July 2021 without the usual interview, as Mr Edwards had indicated to Mr King that the Claimant would struggle with an interview due to the impact of ASC on him.

[58]In a medical questionnaire completed by the Claimant in August 2021, he noted that he was autistic, which he considered amounted to a disability. The Claimant did not seek any particular adjustments in relation to his work.

[59]It appeared to us that there were two main reasons for that, one was the fact that the sessions were for children and young persons with neurodevelopmental conditions, primarily autism, and therefore the sessions were run with the impact on those attendees, in relation to matters such as noise and light, in mind. The other was that the inclusion project was run by Mr Edwards, the Claimant’s partner, who was well aware of the impact of the Claimant’s condition on him.

[60]No issues ever appeared to have arisen in relation to the Claimant’s work at the project, whether initially or subsequently, and he seems always to have been viewed by the Respondent, in particular by its management, Mr King and Mrs Platt, as a valued member of staff. The Claimant’s second role

[61]By November 2022, one of the Respondent’s other employees, who, amongst other things, had undertaken play worker duties in the open access sessions, had given notice that he was to leave. That led to Mrs Platt, on 14 November 2022, emailing several of the Respondent’s employees, including the Claimant, asking if they would be available to cover the departing employee’s evening sessions on Tuesdays or Thursday evenings from 22 November 2022, until new play workers had been secured.

[62]The Claimant replied the following day, noting that he was more than happy to help out until new recruits were in place. He noted however, that as Mrs Platt knew, he was autistic and that he needed to know if it would be possible to make a couple of reasonable adjustments to the environment to enable him to manage. He noted that he really struggled with background noise and he would not be able to function properly with the radio playing in the background. He also noted that the other issue was bright lights, which was not a problem outside, but that if reflective practices were to be carried out indoors he might need to use a lamp. He noted that there were several on site that he could use.

[63]To put those requests in context, music, in the form of a portable radio, was generally played in the central parts of the playground during open access sessions. Reflective practices, or reviews, of sessions undertaken were generally carried out briefly at the end of each session by way of the play workers on duty discussing and completing a daily monitoring form which recorded opening and closing health and safety checks, and summarised the activities undertaken and any incidents which had arisen.

[64]We further noted that the issue for the Claimant with regard to background music, i.e. music playing when he was working, related to issues impacting on his ability to concentrate on other matters. He does not have a problem with the playing of music generally, and indeed regularly attends gigs.

[65]Mrs Platt replied to the Claimant on 16 November 2022, thanking him for his support whilst the Respondent was going through the recruitment process. With regard to the Claimant’s requests she stated, “Of course, we will make the adjustments to the environment to suit your needs. That’s not a problem at all, I can easily do a session without music and we can sit in your office for reflection and debrief.”.

[66]The play worker vacancy was advertised at the time, in fact two play worker/youth worker roles were advertised for, one for up to 16 hours per week and one for up to 30 hours per week. However, no long-term replacement for the departed employee was appointed.

[67]On 9 January 2023, following concerns that his other role at the Local Health Board might be under threat, the Claimant sent an email to Mr King with the heading, “Application for Permanent Open Access Play Provision Role”. In the email, the Claimant noted that he had been wary of the challenges that open access play provision might present and was mindful that the sessions would also be the first time he had undertaken play work without the support and guidance of Mr Edwards. He commented however, that he was pleased to say that the open access work had been a positive experience so far and he also indicated that he had enjoyed working with Mrs Platt and valued her feedback and support.

[68]The Claimant observed that a replacement for the departed play worker had not yet been found, and concluded by enquiring about the feasibility of taking on a role during the Respondent’s open access provision on a more permanent basis. He proposed initially that he would be available for two to three shifts per week, ideally on Tuesdays and Thursday evenings and on Saturday afternoons.

[69]The Claimant, Mr Edwards and Mr King then met on 27 February 2023 by video to discuss the Claimant undertaking the open access work, and the extracts and recording of the meeting set out in a subsequent grievance brought by the Claimant record Mr King saying to the Claimant “Would you like a job?”, and the Claimant replying, “I would love a job, yes.”.

[70]Mr King, later in 2023 and into 2024, and during the course of this hearing maintained that it was never proposed that the Claimant undertake the open access work on a permanent basis, but that it was always only undertaken on a temporary basis pending the replacement of the play worker who had left in November 2022. He seemed, in that regard, to place great store by the fact that the worker who had left had undertaken a broader range of duties, whereas the Claimant only regularly undertook two play sessions for a total of ten hours per week, occasionally working a third session.

[71]On balance, we did not consider that Mr King’s perspective was accurate. Whilst no contract, or indeed any documentation whatsoever, was issued in relation to the open access work, we noted that it was recorded in the minutes of a staff meeting on 19 April 2023 that Mr King and Mrs Platt were proposing that the Claimant would take on the play worker vacancy.

[72]We further noted that the Respondent did not continue with advertising for another play worker at that time, and only recommenced advertising later in 2023 leading to the recruitment of an additional play worker/youth worker who unfortunately had to leave after only a few months due to her personal circumstances. However, the engagement of that person did not lead to any alteration to the Claimant’s role, or even to any discussion with the Claimant that it might change or cease.

[73]In our view, the discussions between Mr King and the Claimant in February 2023 led to the offer and acceptance of a contract, albeit unwritten, under which the Claimant worked as a play worker on open access sessions on Tuesdays and Thursday evenings each week for a total of ten hours per week.

[74]The Claimant also, on occasions, worked on open access sessions on Saturday afternoons, but the Claimant himself confirmed that that was more of an ad hoc arrangement, which appeared to become more regular during the absence of another colleague on maternity leave. We did not feel that that amounted to an agreed regular arrangement.

[75]The Claimant negotiated with Mr King at that time an hourly rate of £10.50 for his open access work, and also negotiated that he should be paid the same rate for his inclusion project work.

[76]No further discussion of the reasonable adjustments needed for the open access work took place at the time or subsequently. We presumed therefore, that no issue arose in relation to them during the first few months in which the Claimant undertook the open access work on a permanent basis. The Claimant did not complain about any such matters, and nothing in the bundle pointed to any issues having arisen up to the latter part of July 2023. The playing of music in the playground

[77]Then, we noted that, as part of the Claimant’s claim, he contended that, on three occasions in the latter part of July 2023, on 18, 20 and 25 July, which we noted would have been successive shifts, Mrs Platt was playing music on her phone. Mrs Platt, in her evidence to us, noted, unsurprisingly, that she could not recall playing music on her phone on those particular days, but stated that, if she had it, would have been on occasions when she was working with a group of children or on her own, and would have been played at a very low volume.

[78]There was documentary evidence to support the Claimant’s contention that Mrs Platt had been playing music on her phone, as, in an extract from a recording of a video meeting between the Claimant, Mr Edwards and Mr King on 31 July 2023, the Claimant noted that on three of the last four sessions he had worked with Mrs Platt she had had music playing on her phone.

[79]Furthermore, in the Claimant’s grievance brought in December 2023, he had raised a concern that Mrs Platt had played music on her phone. Whilst Mrs Platt herself did not recall the discussion, it appeared that she must have acted upon, it as there was no further indication of music being played on a Tuesday or a Thursday thereafter.

[80]The Claimant further contended that Mrs Platt had played music on her phone on 26 August and 21 October 2023. Again, Mrs Platt confirmed that she had no recollection of that, but observed that if the days were Saturdays, which it transpired in fact they were, then she started work at 1.00pm, at a time when the Claimant was not working, having finished his inclusion project section shortly before and where he did not start his open access work until 2.00pm. We were satisfied that that was a reasonable explanation for those two occasions, when the Claimant raised no complaint and gave no indication as to how long the music had been playing for.

[81]We further noted that the five occasions the Claimant noted were the only occasions on which the Claimant asserted Mrs Platt had played music on her phone, in circumstances where the Claimant and Mrs Platt had worked together for some nine months, typically for two, and possibly, three sessions each week. We also noted that the Claimant and Mrs Platt, as the two play workers covering a site comprising the best part of two acres, would not always have been in close proximity to each other during their work.

[82]With regard to music being played in the adventure playground generally, the Claimant noted four other occasions when the radio was on. On 3 August 2023, 18 August 2023, 24 August 2023 and 2 November 2023. Those involved Mrs Platt on one occasion, Mr Flakiewicz on one occasion, and Mr Powell on two occasions. None of those involved had any recollection of the radio being, on but all observed that it could have been on as the children were in the habit of putting it on, and all indicated that once the situation was realised the radio would have been turned off.

[83]We noted that the Claimant had worked two, and often three, open access sessions each week from February/March 2023, having done one session each week for the previous three months, and that he worked those two or three sessions up to December 2023, thus totaling comfortably in excess of a hundred sessions overall. We noted further that the Claimant complained that music had been played at only nine of those sessions. We also noted that the Claimant himself accepted that music was subsequently turned off, and that none of his complaints were that music had remained on in his presence for any particular length of time. The use of power tools

[84]Also with regard to noise, the Claimant contended that power tools had been used during his open access shifts on two occasions, on 3 August 2023 by Mr Powell, and on 24 August 2023 by both Mr Powell and Mr Flakiewicz.

[85]Mr Powell confirmed that, over the Summer holidays in 2023, the Respondent ran a specific project to work with young people to reduce anti-social behaviour, which involved construction, and that otherwise power tools would generally be used before the playground was open. Mr Flakiewicz confirmed that, on one occasion, when his use of power tools was flagged up as a concern, he had been repairing a door on an outside building which had been broken during an attempted break-in. He confirmed, in unchallenged evidence, that he told the Claimant that fixing the door was urgent, but that if the noise was too much he would stop, and that the Claimant subsequently confirmed that it was not an issue. Public events

[86]Going back in time slightly chronologically, a particular issue of concern of the Claimant’s, which formed the first of his discrimination arising from disability complaints, and the first of his reasonable adjustments complaints, was the playing of music at public events, which impacted on his ability to attend them.

[87]The Respondent runs four public events each year; a Birthday Party to commemorate the anniversary of the playground’s inception in July, Halloween at the end of October, Bonfire Night at the start of November, and Christmas in December. All four events are open to the public generally, with children, young adults, and older adults all free to attend. Music is generally played at these events via the site radio, and there is also the potential for other music to be played, e.g. a band played for 45 minutes during the Birthday Party in July 2023.

[88]The Claimant indicated that he had attended at least one public event as a volunteer previously, and had taken photographs at that event, but he noted that music was not an issue for him then as he did not have particular tasks to fulfil, and also that he would not have been recognised by children as a play worker at that time. His attendance whilst on duty as a play worker was however anticipated to be problematic for him, as he would have tasks on which to focus.

[89]On 28 June 2023, a staff meeting took place, at which the Claimant was not present, where Mr Edwards queried if the birthday event needed to be done differently that year if the Claimant was going to be part of it, as he was not going to be able to tolerate loud, blaring music.

[90]The matter was addressed directly by the Claimant on 12 July 2023, in a WhatsApp discussion with members of the play work team. Mrs Platt initially messaged the group that the band arranged to play had confirmed a 45 minute set between 2.30pm and 3.15pm. The Claimant then noted that he might not be able to fulfil his role during times when music was played. He commented that that was not to say that he disagreed with there being music, but he was purely making others aware that he may need to excuse himself for a bit. Mrs Platt replied, shortly after, commenting that that was ok, and that if there was anything else they could do to support the Claimant’s role in another area he should let them know. She suggested that an activity in a quieter space might be a possibility. The Claimant replied that he would, “have a think”.

[91]Another colleague then put forward another suggestion, which led to the Claimant noting that it was less a case of needing to locate himself a bit further away from the music, and more of an issue of being unable to focus when there was any background noise.

[92]No further discussions took place, and the party went ahead as planned on 29 July 2023. The Claimant attended, and noted initially that music was playing, which was then turned off without prompt. Shortly afterwards, the music was turned back on, and the Claimant asked a colleague if it would be kept on, and she replied that she was unsure.

[93]A parade around the local estate then took place, in which the Claimant participated, and, on return to the playground, he found the music back on. The Claimant asked Mrs Platt if the music would be staying on, and she replied that it would, and that the Claimant could go home if he needed to. The Claimant indicated that he would need to go, and Mrs Platt acknowledged that, thanked the Claimant for helping, and gave him a hug. The Claimant noted in his witness statement that he was left feeling shocked and alienated, and that when he got home he had broken down in tears. Allegations of sexual orientation harassment

[94]In August 2023, the three matters contended by the Claimant to involve harassment related to sexual orientation took place. All involved Mrs Platt and took place during discussions the Claimant and Mrs Platt had in August 2023. Ultimately as we note in our conclusions below, we considered that these complaints had been brought out of time and that it was not just and equitable to extend time, such that the detail of the complaints did not form part of our deliberations. The Claimant’s request for reasonable adjustments

[95]On 23 October 2023, the Claimant emailed Mr King, copying in Mrs Platt. He started the email by noting that, for some time, he had thought that it might be useful to outline in writing his condition, and some of the challenges he faced as a result. It seemed to us that this had been triggered by the forthcoming Halloween public event, and a discussion the Claimant had had with Mrs Platt shortly before about his attendance at that, as it fell on a day he would usually work.

[96]The Claimant noted that he wanted to write for two reasons, first to acknowledge the reasonable adjustments that had been made so far, and secondly to ensure that there was a record of their collective understanding of his needs.

[97]The Claimant identified four aspects of daily life which he found challenging which affected his role at work. They were; bright lights, background noise, phone calls, and unexpected changes. He then set out examples of where he might encounter those challenges whilst working, noting the following.• Bright lights in the building after dark.

• The radio being played in the playground.

• Power tools being used.

• Phone calls to other staff members and/or parents.

• Schedule changes, such as changes to meeting times.

• Unfamiliar staff or visitors to the playground.

[98]The Claimant then noted that some of those had been informally raised, and that mitigations had been put in place, such as the radio not being used when he was on duty, which meant that he could do his job and for which he was very grateful. He noted however, that it had not all been plain sailing, and that he had gone through a difficult period over the Summer, some of which he had raised with Mr King and Mrs Platt. He commented that it had reached a point where it had become so bad that he had questioned his employment with the Respondent.

[99]The Claimant noted further that the Birthday Party had been particularly difficult, and was part of the reason why he was bringing the matter to the fore again. He commented that he had been very upset about it, and with Halloween and Bonfire Night approaching, he was keen to avoid a repeat of what had happened in July. He noted that Mrs Platt had brought up Halloween recently, and had asked him what he was going to do, and that he had said he would go away and think about it. He commented that he had given it a great deal of thought, and the conclusion he had reached was that he was not going to be able to carry out his role if the radio was switched on throughout the session. He stressed that that was not to say that he did not want to be there, but that without the adjustments he would simply be unable to attend.

[100]The Claimant concluded his email by saying that he wanted to explore how he might be included in the upcoming celebrations, and that he hoped that there was time for Mrs Platt and Mr King, or for the three of them as a group, to discuss further and perhaps figure out a compromise.

[101]A week later, on 30 October 2023, not having received a reply, the Claimant emailed Mr King and Mrs Platt again, noting his extreme disappointment at not having had a response to, or even an acknowledgment of, his email. He noted that he still did not know what to expect at the Halloween event the following day, and that he as concerned that he was heading for a repeat of the Birthday Party when he was told that the music would remain on and that he could go home.

[102]It transpired that Mr King and Mrs Platt had had a brief discussion about the Claimant’s initial email, although not in any detail due to other commitments. Mr King then sent an email to the Claimant on the evening of 30 October 2023, apologising for what he was sure must have seemed a long time to reply. He assured the Claimant that that was not because what he had raised was unimportant, but was quite the opposite. He commented that, despite it being late notice, he and Mrs Platt were happy to meet on a video call that evening, assuming that that would be preferable rather than waiting until the following day.

[103]In the event, no such video meeting took place and, at 9.47am on the following day, Mr King sent the Claimant a further email. In that, he noted that, without having been able to speak about the Halloween event, he felt that it was best for everyone concerned that he made a decision based on the knowledge he had of the circumstances, imperfect though that may be. He went on to say, “I have decided that it would be quite wrong to prevent music being used at the event. It seems to me that it is an integral part of creating an enjoyable evening for the children and of course that is by far the overriding goal. I’m sure that will feel quite frustrating, but I nevertheless hope that you will understand that one of the primary purposes of the Venture is to create as many enjoyable experiences for children and young people as we can, as an antidote to the unhappiness that so many of them suffer in other parts of their lives.”.

[104]Mr King noted that he understood that that meant that the Claimant would not be able to take part in the event, and ,as a result his hours would need to be rescheduled. We subsequently understood however that the Claimant was paid for the period even though he could not attend.

[105]Mr King concluded his email by referencing that they needed to consider the other issues raised by the Claimant in some depth, and asked to meet on 2 November 2023 to discuss them more fully.

[106]That meeting took place by video between Mr King, the Claimant and Mr Edwards. Mr King reported that Mrs Platt had told him that a number of teenagers had told her that events were boring without music and stated that, “on Halloween not to have any music on would have been, I think, quite damaging to the event, and it didn’t feel like there was going to be any way around that”. The Claimant replied that he had not asked for music to be off throughout the whole event, only that there be a period of time without music. Ultimately no resolution was reached.

[107]The following day, 3 November 2023, the Claimant sent Mr King an email, thanking him for taking the time to meet with him, and hoping that, through further meetings and discussions, they could resolve some of the issues highlighted, and find a way forward that worked for everyone. He concluded the email by asking for Mr King’s advice about the Bonfire Night event planned for 4 November, and by asking what Mr King proposed that he should do. Mr King replied, on the afternoon of 4 November 2023. noting that he very much looked forward to meeting the following week to continue where they had left off, and also that it had been a shame that Mrs Platt had not been able to attend the earlier meeting due to illness.

[108]With regard to the Bonfire Night event, Mr King noted, “For tonight I think the issue is very similar to the one with Halloween. Whilst we would all very much prefer you to be working, as you are an incredibly valuable member of staff, Bonfire Night has always been an event, inside or outside the Venture, in which music plays an important part. As with Halloween, I don’t think it would be right to stop that, even taking into account the difficulties that causes for you. I’m also aware that there will be much higher incidence of unknown visitors bringing with them the much greater likelihood of unusual occurrences, all of which we need to explore in more depth the various possible mitigations or responses. “With not having time to properly explore these and the other issues you raised in your original email last Monday week, I think the only sensible reply to your question about tonight is that you are not required to work, having not been able to put in place conditions that would significantly reduce the challenges to your welfare.”.

[109]In his witness statement, the Claimant noted that he felt that he was continually disregarded because of his condition, and that he felt accused of wanting to spoil children’s fun and that he was not able to do his job. He observed that that led to him having fleeting thoughts of taking his own life. Meetings in November 2023

[110]A further video meeting took place on 9 November 2023, with the Claimant, Mr Edwards, Mr King and Mrs Platt in attendance. The Claimant and Mr Edwards were present in an office at the Respondent’s site downstairs, Mrs Platt was in her office at the Respondent’s site upstairs, and Mr King was off site.

[111]The notes taken from a recording of the meeting indicate that, after some opening comments which were complimentary about the Claimant’s qualities as a play worker, Mr King noted that for him, at the heart of it, they needed the Claimant’s gifts and they needed to find ways of making that work, “even though it’s a pain in the arse, Nic”. He followed that with what the Claimant described as an ill-timed joke saying, “Why can’t you be ordinary and perfect like the rest of us? But no, jokes aside, having always been something of a weirdo myself, I have some sympathy.”.

[112]The Claimant explained to Mr King that he was struggling trying to maintain reasonable adjustments in the workplace, namely having music turned off, having a lamp or softer lighting in the kitchen (although we observed in passing that the one complaint relating to the kitchen lighting occurred after this meeting), and being excluded from public events. He observed that due to that he had experienced fleeting thoughts of taking his own life. That reference proved to be upsetting to Mrs Platt, as it triggered recollections of her experience of suicide she had encountered in her personal and professional lives, and a break took place.

[113]Mrs Humphreys, who was in a neighbouring office to Mrs Platt, observed that she was upset, and attempted to comfort her. She then went downstairs to make Mrs Platt a cup of tea, and, at the bottom of the stairs, encountered the Claimant and Mr Edwards.

[114]Whilst it was agreed that Mrs Humphries said the words, “cheeky gets” as she was walking down the stairs, there was a difference of opinion as to the background to that. The Claimant and Mr Edwards maintained that it was said to them, whereas Mrs Humphreys maintained that it was a muttered comment that related to the Claimant, Mr Edwards and Mr King, in relation to them holding a meeting which had upset Mrs Platt. She observed that she had not thought that the Claimant and Mr Edwards had even been in the building.

[115]The particular comment did not form part of the Claimant’s complaints, so was not central to our conclusions, but we felt that the comment, even if not made directly to the Claimant and Mr Edwards, was nevertheless made about them for upsetting Mrs Platt. We noted that Mrs Humphreys apologised for the comment.

[116]The discussion between Mrs Humphreys and, principally, the Claimant continued in an ill-tempered manner, leading to Mrs Humphreys making the comment, “There’s certain things that can happen and certain things that can’t”. Mrs Humphries sought to explain in her witness statement that that was from her understanding that there had been some difficulty in implementing some of the adjustments the Claimant had requested, and that it was an observation on her part that there might be some things which simply could not be accommodated.

[117]The meeting between the Claimant, Mr King and Mr Edwards recommenced, although without Mrs Platt who was unable to participate further. The discussion, largely between Mr King and the Claimant, moved to how the role of play worker was impacted by personal perspectives and experiences, with Mr King referencing the Claimant’s personal need not to have the radio on whilst at work, and with the Claimant responding that that was not a personal experience but what he needed to be able to do his job. Mr King noted that that was because that was personally how the Claimant responded to the radio being on, and that there would be other people who suffer from neurodevelopmental issues who do not have an issue with the radio but have with other things. The Claimant responded by saying that he would not say that he “suffered it”, but that it was his experience, and Mr King replied by saying, “Well ok. It’s not a pleasant experience is it?”.

[118]A further meeting was held by video on 20 November 2023 with, again, the Claimant, Mr Edwards, Mr King and Mrs Platt in attendance. During this, Mr King confirmed that it was important to ensure that the radio was off on a regular basis whilst the Claimant was working on open access sessions, and that a lamp, or softer lighting, for the kitchen, would be looked into. He also confirmed that the onus should not be on the Claimant to point out issues but that others, particularly managers, should make sure that adjustments were implemented. Mr King indicated however, that, “things do happen and they will continue to happen because we’re trying to run an organisation with half the resources that we need and that stretches people out to beyond breaking point.”.

[119]The discussion then moved on to public events. Mr King observed that, from his point of view, there were not any special events that were not added to by music, but that the idea that it needed to be constant throughout the event was not necessarily a given. He asked the Claimant for his thoughts, and he suggested that atmospheric sounds could be played instead of music, particularly for Halloween, and that games such as musical statues could be played. He also referenced quieter periods, similar to the ones certain supermarkets operated, and that there could have been a quiet period for half an hour with music on for the rest of it.

[120]During a later part of the discussion the Claimant again referred to having had suicidal thoughts following the previous meetings, and that he had been struggling, but had tried to maintain his professional level at work, which he had when working with Mrs Platt on the previous weekend. Events in December 2023

[121]Following the meeting, the Claimant continued to work his inclusion project and open access shifts. On Friday 1 December however, he emailed Mr King, copying in Mrs Platt, noting that he was not going to be able to work on the playground on the following afternoon, Saturday 2 December 2023. He noted that this was “due to matters I’ve raised not yet being resolved and the ongoing negative impact this is having on my mental health.”.

[122]Mr King replied later that morning, asking if that also meant that the Claimant was not going to be well enough to work on the PIP session the following morning. He commented that if the Claimant intended to work that session he would need to speak to Mr Edwards, his line manager in relation to that work, to be assured that the Claimant was well enough to work in the morning. He concluded by asking if the Claimant had made any progress in seeing his GP, the Claimant having previously mentioned that he was looking to arrange an appointment.

[123]On the morning of 2 December 2023, Mr Edwards replied to Mr King, noting that the Claimant had forwarded his email to him, and that the Claimant felt able to attend the closed inclusion session that morning, and that he, Mr Edwards was confident that would not have a detrimental impact on the Claimant’s mental health.

[124]Mr King replied to Mr Edwards, copying in the Claimant, shortly after, noting that he was still concerned that the Claimant was well enough to work. He indicated that he had sent Mr Edwards a WhatsApp message noting that he wanted to talk by phone or video, but no such ultimately conversation took place. In the event, the Claimant was well enough to work the afternoon session on 2 December 2023, and emailed Mr King to confirm that at 1.44pm having informed Mrs Platt in person.

[125]At the end of that session on 2 December, the Claimant and Mrs Platt were due to hold the usual reflective practice session. The Claimant went to Mrs Platt’s room and waited for her, but Mrs Platt was in the kitchen talking to Mr Edwards. The Claimant then came downstairs as Mr Edwards was leaving, and the Claimant and Mrs Platt then carried out the reflective practice in the kitchen, where no lamp or dimmed lighting had been introduced. Neither party made any comment about the suitability of holding the reflective practice in the kitchen under a bright light, and it appears to have been a short discussion.

[126]On the following Saturday, 9 December 2023, the Claimant emailed Mr King, noting that, in respect of the previous week, he had had further thoughts of taking his own life, due to the situation still not being rectified and the mental anguish he continued to endure. He noted that, as a result of the impact that was having on his mental health, he was not able to work that afternoon shift alongside Mrs Platt. He stated that he was particularly averse to working alongside Mrs Platt alone without an expected level of support, without an assurance that the reasonable adjustments he had requested were being adhered to, and, to be frank, without a witness.

[127]Mr King replied that afternoon, noting his sorrow to hear that the Claimant was unwell again, and that he was obviously extremely concerned about the Claimant again feeling like taking his own life. He indicated that it was of paramount importance that the Claimant do all he could to help get himself better, and for the Respondent’s management to do all they could to help with that.

[128]Mr King went on to say that it was important for the Respondent to be able to understand how to best support the Claimant’s mental health needs within the limits of their professional competence and resources. He asked the Claimant to let him know his doctor’s advice on that, so that they could make better informed decisions about how they could help.

[129]On 12 December 2023 the Claimant then sent a formal written grievance to the Respondent’s then Chair, setting out a number of concerns. These included the matters we have noted, including that reasonable adjustments had not been adhered to, but also covered several other matters.

[130]On 13 December 2023, Mr King sent a further email to the Claimant noting that the Claimant had been unable to work the evening before, and asking if the Claimant had accessed further medical assistance through his GP. He suggested, if the Claimant felt able, that a further meeting could take place to make further progress with the Claimant’s issues of concern. He also noted, with regard to the forthcoming Christmas event, that a notable feature would be the playing of festive music, which might make it difficult for the Claimant to attend, but that he was still willing to consider any ideas the Claimant might have which might enable him to take part.

[131]The Claimant did not reply, but did send an email to Mrs Platt, copied to Mr King, on 14 December 2023, noting that the playground was not going to be open that night due to the Christmas float going out, and that, given the unresolved issues outlined in a grievance he had sent to the Chair, which included reasonable adjustments at public events that exacerbated the Claimant’s adverse mental health issues, he did feel safe going into work that night.

[132]Mr King sent a further email to the Claimant the next morning, 15 December 2023, noting that he had made the decision that it was best to cancel the open access session the following day. He observed that he assumed, because the circumstances were quite different, that the Claimant and Mr Edwards felt able to continue running the PIP project in the morning. He concluded the email by noting that he was still concerned that he had not had a reply regarding the Claimant’s health advice or any suggestions that the Claimant had of adjustments which might enable him to attend the Christmas event.

[133]The Claimant replied to Mr King on the morning of 16 December 2023, noting that there was much that he would like to address within Mr King’s email, but, due to the live grievance, he was responding only in relation to work that day. He confirmed that the inclusion project session was set to go ahead that morning, and that he was also available to work the afternoon’s open access session.

[134]Mr King replied to the Claimant on Sunday 17 December 2023, noting that he would not be rota’d to work on open access sessions that week as there was sufficient cover. The Claimant replied asking if he would be paid his usual hours, and Mr King replied on 21 December 2023.

[135]In that email Mr King said, “Following on from your request not to work on your open access playground sessions due to your current health and other concerns, I am pleased to inform you that I have managed to make alternative cover arrangements to the ones you have been providing. This can be reviewed once your concerns have been heard and the issue of any further support has been considered. “I also confirm that you will not be rota’d for any of the other sessions over the Christmas and New Year period. “However, given the very different circumstances, you will continue to work on the PIP and YIP sessions. “In the meantime, I can confirm that you will continue to be paid for any sessions you might have normally expected to work during this period.”

[136]The Claimant replied later that day noting, for clarification, that the times that he had notified Mr King that he was unable to work due to mental health were in reference only to the specific occasions, and was not an ongoing request not to work, and that he would be available and able to work on any upcoming open access sessions as normal.

[137]The Respondent’s Chair then started to progress consideration of the Claimant’s grievance. She met with the Claimant and Mr Edwards on 20 December 2023, and he subsequently provided a lot of documentation in relation to the issues he had raised to the Chair over the following weeks.

[138]On 19 January 2024, Mr King wrote to the Claimant using the heading “Health review”. He noted that he wished to meet the Claimant to discuss the current position regarding his mental health and that, “despite the extreme seriousness of the situation and my repeated requests for information regarding your accessing your GP for medication and advice, I have received no reply”. He referred to the Claimant’s grievance, but observed that that did not supersede his duty to make operational decisions based on safeguarding the Claimant’s welfare as well as the needs of the organisation and the people who use it. The termination of the Claimant’s second role

[139]On 31 January 2024, a regular staff meeting took place, in which Mr King made a comment that he had not appointed someone to cover the role of the employee who had left in November 2022, and that there was no cover for the Saturday session done by the employee on maternity leave, making no mention of the Claimant’s work on both matters over the previous year. Mr King indicated that an advert would be issued shortly for someone to undertake the open access work.

[140]On 1 February 2024 the Claimant sent Mr King an email asking if he could anticipate being paid for his usual open access hours that month. Mr King replied to that on 6 February 2024. In that, he stated that his understanding was that the Claimant’s employment on the open access sessions had always been on the basis that he was temporary cover whilst the Respondent found a more permanent or longer-term appointment. He noted that he understood that that was not the Claimant’s interpretation of the position, and that that was part of his grievance. He further noted that, until that aspect of the grievance was resolved, or until it was agreed that he could return to the rota, he was not in a position to authorise payment for work undertaken and for which, according to the evidence he was aware of, the Respondent had no contractual obligation.

[141]Mr King noted that he had given the Claimant an assurance, in his email of 21 December 2023, that he would be paid for the Christmas and New Year period despite not being rota’d to work, and that included the first week of January, stating that, whilst he did not believe that the Respondent was obliged to make that payment, given that it was Christmas and short notice it seemed like a reasonable gesture of goodwill. The Claimant was then ultimately not paid for open access sessions beyond 8 January 2024.

[142]The proposed meeting went ahead on 9 February2024, attended by Mr King, the Claimant and Mr Edwards. Mr King raised the fact there had been no feedback from the Claimant’s GP in relation to the Claimant’s mental health, noting that he understood an appointment had been arranged but had been cancelled. He commented that he needed someone else’s opinion on whether the Claimant was well enough to work before he came to a view.

[143]The Claimant raised the point that if Mr King had that concern why was he permitting him to work on the inclusion project. Mr King replied, noting that that was a good question and was quite a big subject, before referencing that the Claimant had said that working on the open access session made him feel ill to the point of feeling suicidal, whereas working in the inclusion project sessions actually made him feel better.

[144]The Claimant responded that he was the same play worker in both sessions, the children were the same children, and it was the exact same experience. He commented that he had previously said that working with the children was like therapy, and that went for the open access sessions as well. Mr King responded by pointing out the reasonable adjustments that the Respondent had requested for the open access sessions, and that there were differences between the inclusion project sessions and the open access sessions. He also pointed out that the Claimant had said that working with Mrs Platt had made him feel worse, and that he had alluded to not trusting her to stick to the agreement about reasonable adjustments.

[145]The Claimant responded to the general points Mr King made, and, with regard to Mrs Platt, he noted that he had stressed from the beginning that he had no personal animosity towards her, and had enjoyed working with her before the Summer when things had become a bit more negative in terms of reasonable adjustments.

[146]Mr King reiterated that the impression he had had was that working with Mrs Platt was a problem for the Claimant, had made him feel worse, and that he did not trust her to enforce the reasonable adjustments. The Claimant replied, noting that there was a bit of nuance to that, that he had not said that working with Mrs Platt was a problem, but had pointed out that not having the reasonable adjustments enforced was a problem.

[147]Mr King then returned to the issue of the Claimant’s GP’s advice, noting that he felt that he needed some sort of meaningful communication that the risk of the Claimant killing himself was not as great as it appeared to be, and that was what he thought he needed in terms of safeguarding the Claimant and everybody else. The Claimant queried what safeguarding everybody else meant, and Mr King replied that the Claimant at work needed to be sensitive to the children and to pick up on issues of concern. He commented that the Claimant needed to be alive to those matters and might not be if unwell. He compared the need to be alert to the children’s needs to staff attending work the morning after a night out saying, “So that if staff come to work on a Sunday and they’ve been out till late on a Saturday night, having a good booze up, it’s like, well, are … and they turn up on the playground on a Sunday to do a Sunday shift and they’re not really in great shape to be able to pick up on those things.”.

[148]Following the meeting on 10 February 2024, the Claimant sent an email to Mr King asking for clarification of the “meaningful communication” Mr King had referenced as being required from the Claimant’s GP. Mr King did not respond.

[149]The Claimant then took it upon himself to attend his GP on 12 February 2024, and the GP provided a standard Fit Note, noting that the Claimant may be fit for work taking into account the previously referenced adjustments regarding background noise and lights. The Claimant sent that to Mr King by email later that day, noting that his GP had confirmed that they would not need to assess his fitness for work again.

[150]Mr King had, without the involvement of the Claimant, produced a risk assessment document which was in the bundle. That noted that the first assessment was undertaken on 13 December 2023 and a second assessment on 9 February 2024, although the document also referred to the Fit Note dated 12 February 2024. At the end of that form, Mr King noted that, “In order to continue to maintain safe practice, it is not currently legitimate for [the Claimant] to return to the Open Access sessions.”.

[151]Mr King then wrote to the Claimant on 16 February 2024, noting that, having reflected carefully on their meeting, and having taken advice, he had come to the firm conclusion that he would not be including the Claimant on the rota to work on open access sessions for the foreseeable future. He noted that he did not think that there was any reasonable prospect of being able to absolutely guarantee that the reasonable adjustments would always be in place, as, by their very nature, they are unpredictable. He commented that he felt that the risks of the Claimant having further thoughts of taking his own life were too great for him to conclude that the Claimant’s employment on open access sessions was sufficiently safe. He contrasted the position on the inclusion project sessions, confirming that he was content, for the time being, for the Claimant to continue with that work.

[152]The Claimant replied to Mr King later that day, pointing out the adjustments that had been previously agreed, and that he thought he had made clear that a failure to adhere to them would be likely to have a negative affect on his mental health, commenting that it was not the music or the bright lights themselves that had a negative impact on his mental health, but the lack of support and adherence to reasonable adjustments by other staff. He commented that it was that behaviour which caused him to feel undermined, excluded, blamed, bullied and gaslit.

[153]The Claimant did not work any open access sessions thereafter, but continued to work the inclusion project sessions. He continued to communicate with the Respondent’s Chair in relation to his grievance, e.g. he forwarded his exchange of emails with Mr King on 16 February, shortly after it was completed, asking the Chair to add their exchange to two elements of his grievance.

[154]Around May 2024 however, the Chair retired due to worsening ill health, and her replacement took over, with the grievance investigation being restarted from scratch. The grievance has still not been concluded.

[155]Also in May 2024, an issue of concern regarding the Claimant’s work and an alleged failure to report an incident was raised. That was discussed at a strategy meeting on 22 May involving officers of the local authority and the police and Mr King. The meeting concluded that no specific further action was required, but recommended that the Respondent consider further disciplinary action. Following that, a risk assessment was carried out by Mr King on 28 May 2024, with the need to suspend the Claimant being identified. That suspension was confirmed in a meeting on 19 June 2024, and the Claimant remains under suspension from his inclusion project role.

[156]The only other further finding to note is that the Claimant provided no specific evidence on the impact of the termination of his open access role on him in terms of injury to feelings, other than to note that his prescription of Citalopram had increased due to the whole ordeal, which appeared to include his subsequent suspension.

Conclusions

[157]Taking into account our findings and the applicable legal principles, our conclusions in relation to the issues we had to determine were as follows. Time limits

[158]As we have noted, we discussed at the outset of the hearing that the time limit issue identified in relation to the Claimant’s unauthorised deductions from wages claim was not an issue for us to determine, the payments at issue having been made from January 2024 onwards when matters going back as far as 2 November 2023 were in time.

[159]With regard to the Claimant’s complaints of disability discrimination we noted that the matters complained of ranged from July 2023 when the allegations of failure to make reasonable adjustments and harassment relating to the playing of music first arose, through to 16 February 2024, when the Claimant’s open access role was brought to an end.

[160]The reasonable adjustments and disability harassment complaints themselves continued from July 2023 through to 2 November 2023 and beyond, and we were satisfied that there was a discriminatory state of affairs anchored by specific acts of discrimination over time. Ultimately, in fact, we concluded that it was only events taking place after 2 November 2023 which amounted to discrimination, and therefore there was no question of the Claimant’s complaints of disability discrimination having been brought out of time.

[161]The position was different with regard to the Claimant’s complaint of harassment related to sexual orientation, where the three matters complained of all took place in August 2023. As discrete complaints of discriminatory treatment they were therefore out of time.

[162]Mr Pollitt, on behalf of the Claimant, urged us to consider that the complaints of harassment related to sexual orientation should be considered alongside the Claimant’s other complaints of discriminatory conduct, i.e. those relating to disability. However, we took into account the guidance of the Court of Appeal in Hendricks, which required us to look at the complaints in question and to determine whether they could be said to be part of one continuing act by the employer and thus linked to each other.

[163]The three specific complaints of harassment related to sexual orientation all involved comments made by Mrs Platt, which the Claimant indicated indirectly called into question his status as a gay man. In our view these were qualitatively different from all of the Claimant’s complaints of disability discrimination, including the complaints of disability related harassment involving Mrs Platt. We were not therefore satisfied that the alleged acts of harassment related to sexual orientation were linked to the other alleged discriminatory acts, and should be assessed in isolation.

[164]We then moved to consider whether it would be just and equitable to extend time for the complaint to be considered. We noted the guidance of the Court of Appeal in Robertson, that there is no presumption in favour of extending time, and that is for the Claimant to convince the Tribunal that it is indeed just and equitable to extend time. We further noted that the guidance provided by Keeble and Adedeji, that an assessment of the prejudice to each party should take account of all the circumstances, in particular the length of and the reasons for the delay.

[165]In that regard, we noted that the last alleged act of harassment relating to sexual orientation took place on 24 August 2023, which would have meant that the Claimant should have made contact with ACAS in relation to those matters by 23 November 2023. He ultimately did not make contact with ACAS until February 2024.

[166]We noted that the Claimant had had assistance from his trade union during the internal processes, and ultimately had the assistance of solicitors, we presumed engaged by the trade union, to submit his claim in April 2024. We also noted that the Claimant had referred to the alleged comments in his grievance submitted in December 2023, albeit we observed that he would already have been out of time to pursue them before the Tribunal at that stage.

[167]In terms of prejudice to the Claimant, we noted that he was always going to be able to proceed with his disability discrimination complaints, and consequently be compensated for any successful complaints, regardless of our decision in relation to the sexual orientation harassment complaints. We further noted that the Claimant did not, in his evidence, indicate any indication of particular hurt that he suffered as a result of the particular comments made by Mrs Platt in August 2023.

[168]Ultimately therefore, we considered that the balance of prejudice lay in not extending time on a just and equitable basis which meant that the Claimant’s claim of harassment related to sexual orientation failed.

[169]We then turned to consider all the Claimant’s other complaints, which had been brought in time. Discrimination arising from disability

[170]The Claimant brought two such complaints, referenced at paragraphs 10 and 13 of the List of Issues. We dealt with each in turn.

[171]First, with regard to issue 10, we noted that the act of unwanted conduct advanced was the exclusion of the Claimant from public events on 29 July, 31 October, 4 November and 21 December 2023. The “something arising” in consequence of the Claimant’s disability was said to be his increased stress and anxiety arising when artificial background noise, in particular music, was played when he was performing tasks.

[172]We applied the Pnaiser test, and were satisfied that an effective exclusion from the four public events involved unfavourable treatment;, the Claimant clearly wanted to be able to attend the events, and not being able to do so was therefore unfavourable.

[173]The cause of that treatment was the decision by the Respondent, initially in the form of Mrs Platt at the event of 29 July 2023, and subsequently by Mr King in relation to the other events, that music would be played at the events for all, or all bar a fairly short period. We were then further satisfied that the unfavourable treatment involved in that decision was because of something arising in consequence of the Claimant’s disability, the something arising being his difficulty in working whilst background noise, in particular music, was playing. We were therefore satisfied that Section 15(1)(a) EqA was made out, and that the Claimant had been treated unfavourably because of something arising in consequence of his disability.

[174]We then moved to consider Section 15(1)(b) EqA, and the issue of justification. In that regard we noted that the aim advanced by the Respondent was that of maximising engagement of children and young people and adults attending the public events. We were satisfied that that was a legitimate aim, bearing in mind the fundamental role of the Respondent in providing social and developmental opportunities for local children and young people, often coming from difficult backgrounds.

[175]With regard to the question of whether the Respondent’s actions were a proportionate means of achieving that aim, we noted the guidance of the EAT in Boyers, that the discriminatory effect of the decision on the Claimant had to be balanced against the reasonable needs of the employer, in reality in this case against the reasonable needs of those using the employer’s services, i.e. those attending the events. We noted that the act must be appropriate and reasonably necessary for the purposes of achieving the aim, and that the more serious the impact the more cogent must be the justification for it.

[176]In that regard we noted that the impact on the Claimant was that he was effectively unable to attend four public events throughout the year. It had no impact on him at any other times, or on him carrying out his core duties of a play worker. Whilst we can understand that the Claimant would have been disappointed in not being able to attend the events, we did not consider that the impact on him was particularly severe.

[177]Whilst the Claimant’s role as an open access play worker would have been likely to have more naturally led to his involvement in these events than his role as an inclusion project play worker, we noted that he had either not attended the events prior to commencing the open access role, or had attended in circumstances where difficulties had not arisen. Even recognising that difficulties would be more likely to arise following the commencement of his open access work, in circumstances where those attending would have been more likely to have known him, we still did not consider that the impact on the Claimant had not been able to attend the four events was particularly severe.

[178]On the other hand, the impact of not playing music or only playing music for limited periods, would have had an impact on those attending. Whilst obviously not being able to listen to music whilst attending is of itself a relatively minor issue, we noted that the Respondent was looking to maximise attendance and engagement at the events, and that all involved a degree of festivity, and that attendance and engagement at the events would be likely to be increased by the playing of music.

[179]We did not consider that any of the possible adjustments suggested by the Claimant, in the form of having quiet periods or playing games such as musical statues, would have materially increased his ability to attend the events, as those matters would only have operated for limited periods of time.

[180]Overall therefore, we were satisfied that the Respondent’s decision that music be played at the events for all, or the majority of the time during which they took place, whilst having an unfavourable impact on the Claimant, was nevertheless a proportionate means of achieving a legitimate aim.

[181]With regard to Issue 13, the unfavourable treatment asserted here was the removal of the Claimant from his second role i.e. his open access role, from 16 February 2024. We again applied the Pnaiser test, and concluded that that was clearly an act of unfavourable treatment. The Claimant wanted to continue in that role and was prevented from doing so, and he had the obvious detrimental impact of losing the salary that he would otherwise have received from undertaking it.

[182]The decision to remove the Claimant from the open access role was undertaken by Mr King, and his reason for doing so was his concern about the impact on the Claimant’s mental health of him carrying out that work. Any such impact therefore arose from those concerns which had arisen from the exacerbation of the Claimant’s anxiety and stress levels whilst carrying out the work in circumstances where music might be played, or when meetings were held in rooms where bright lights might be operating. Those were clearly matters arising from his disability.

[183]Our focus then moved again to the question of justification. In that regard, the Respondent noted that it was unable to make the adjustments that the Claimant appeared to wish to have to enable him to work the open access shifts, and therefore it had no alternative but to allocate that work to other staff. The Respondent contended that it had serious safeguarding concerns in relation to both the Claimant and children in his care on those shifts, as the Claimant had indicated that working open access shifts had caused him to have thoughts of taking his own life.

[184]We distilled from that an aim on the part of the Respondent to maintain the health and safety of the Claimant and the children in his care, which we were satisfied was clearly a legitimate one. We then considered the proportionality test, taking into account the guidance in Boyers. In this case the impact on the Claimant was severe, he was removed from undertaking part of his work, in fact approximately half of it, work which he enjoyed doing, and he then suffered the financial consequences of not being permitted to undertake that work through the loss of his salary.

[185]On the other hand, whilst the Respondent obviously had a requirement, indeed a duty, to maintain the health and safety of both the Claimant, as its employee, and the children attending the site, as service users, that must be undertaken in an appropriate and reasonably necessary manner to achieve that aim, i.e. to maintain that safety.

[186]In that regard, whilst Mr King was understandably disconcerted by the Claimant’s indication, in the meeting on 9 November 2023 and subsequently, that he had had thoughts of suicide, we did not consider that the ultimate decision to remove the Claimant from the open access role in February 2024, was appropriate or reasonably necessary to maintain health and safety.

[187]To start with, whilst the Claimant had indicated that he had had thoughts of suicide, he had mentioned them as being fleeting, and had made no comment to suggest that that was something that he would have been likely to have followed through on. In addition, whenever the matter was raised with him, he contended that it was only when he felt that the adjustments previously agreed for him were not being implemented that those thoughts arose.

[188]The Claimant did indicate, in early December 2023, that he was unfit to undertake the open access work, although he ultimately did so on one of the days when he had anticipated that he would not be fit to do so. A week later he did subsequently make clear that he felt, again, unable to undertake the duties, and did not do so on the particular day, but did, at that point and thereafter, indicate that he felt able to undertake open access duties going forward.

[189]Mr King, whilst indicating on several occasions that he wanted to understand the advice the Claimant had received from his GP about managing his mental health, made no effort to try to get that understanding himself. Indeed, even though he indicated to the Claimant that he was looking for “meaningful communication” from the Claimant’s GP, he did not provide any clarity on what that involved, even when the Claimant asked him a specific question.

[190]Notwithstanding the lack of any response to that question, the Claimant did then take the step of seeing his GP, and of obtaining a Fit Note that confirmed that he was fit to work with the adjustments in place. He also confirmed that the GP did not anticipate needing to see him further.

[191]If Mr King had remained concerned about the lack of medical guidance at that stage, an obvious step for him to have taken would have been to have referred the Claimant to an Occupational Health adviser, but he did not do so.

[192]Mr King’s decision was also undertaken in the context of him being perfectly happy for the Claimant to continue with his inclusion project work. Whilst there were some differences in relation to that work, which meant that the adjustments required in relation to the open access work either were not required or were always fulfilled, the health and safety element of safeguarding children remained and it was difficult to see that the Respondent’s distinction in allowing the Claimant to undertake one type of work but not the other was a valid one.

[193]Ultimately, as urged by Mr Pollitt in his submissions, we took into account the steps that an employer would be expected to have undertaken when dismissing an employer by reason of ill health, that being fundamentally the decision taken by Mr King in relation to the Claimant’s open access role.

[194]In that regard, the EAT in East Lindsay District Council -v- Daubney

[1977] IRLR 181

, confirmed that, in order to dismiss an employee fairly on grounds of ill health, an employer should undertake appropriate steps to understand the true medical position before taking a decision to dismiss. Whilst we were not here dealing with an unfair dismissal claim, we considered the same principles applied in relation to the proportionality of the decision taken to bring the Claimant’s open access role to an end.

[195]In relation to a decision with such a severe impact, the justification needed to be clearly substantiated by reference to medical evidence, but the Respondent took no steps to obtain that evidence, and appeared to disregard the limited evidence provided by the Claimant in the form of his GP’s Fit Note.

[196]As a result, we were satisfied that the Claimant had been treated unfavourably because of something arising in consequence of his disability, and that that unfavourable treatment was not shown by the Respondent to be a proportionate means of achieving a legitimate aim. This element of the Claimant’s complaint of discrimination because of something arising from disability therefore succeeded. Failure to make reasonable adjustments

[197]The Claimant contended that there had been three failures, referenced at paragraphs 15 to 18, 19 to 22 and 23 to 26 of the List of Issues respectively. We dealt with each in turn.

[198]First with regard to Issues 15 to 18, the PCP contended by the Claimant was the arrangement for the continuous playing of music at the four public events we have already referenced. This complaint had many parallels to the Claimant’s first complaint of discrimination arising from disability. We were satisfied that the playing of music was a PCP applied by the Respondent which put the Claimant at a substantial disadvantage compared with nondisabled employees.

[199]We were also satisfied that the Respondent knew that the Claimant was likely to be put at a substantial disadvantage by the PCP. That was apparent to Mrs Platt on the day of the Birthday Party event on 29 July 2023, and was apparent to Mr King in advance of the other events.

[200]Similar to the focus on the justification element of the discrimination arising from disability complaint, our focus here was then on the question of whether the Respondent had taken such steps as were reasonable to avoid that

[201]Our conclusions in relation to the discrimination arising from disability complaint applied equally here. We noted that the adjustment contended for by the Claimant was allowing for a period of time with no music on. He had not specified the particular amount of time beyond making a note in a meeting that half an hour might be appropriate, whilst Mr King, in his evidence to us, suggested that stopping the playing of music for more than a quarter of an hour would have been problematic.

[202]It seemed to us that even allowing for the period of time the Claimant himself had raised i.e. half an hour, as being feasible, that that would not materially have altered the Claimant’s position of having been unable to attend the majority of the event. However, in circumstances where, as we have noted, there was an element of festivity in relation to all events, we doubted that a period of time without music of that length would have been realistically achievable. We also noted that the Claimant’s contention that other activities, e.g. the playing of musical statues, even if it could have been undertaken, would not have materially increased the amount of time the Claimant could have spent at the events.

[203]Ultimately, we were not satisfied that the Respondent had failed to take reasonable steps to avoid the disadvantage. In our view the fundamental position was that it was always going to be extremely difficult for the Claimant to attend the events because of the music that those participating in the events would have expected.

[204]With regard to Issues 19 to 22, we noted that the Claimant was relying on a physical feature, that of a bright light in the staff kitchen, which particularly impacted on him on 2 December 2023. We noted that a physical feature for these purposes includes a fixture or fitting, and were satisfied that the kitchen light fell within that definition. We noted that the bright light put the Claimant at a substantial disadvantage because it increased his stress levels and could potentially cause him to feel as though his skin was burning. We noted that others without his condition would not experience those matters.

[205]The Respondent was aware that the Claimant was likely to be put at a substantial disadvantage by the physical feature, as he had expressly raised it in his initial email in November 2022 when putting himself forward to undertake the open access work. Again therefore, our focus was on whether the Respondent had taken such steps as were reasonable to avoid the

[206]In that regard we were conscious of the actual failure relied upon, i.e. the holding of a reflective practice in the staff kitchen on 2 December 2023, was a relatively minor event, and also arose in circumstances where Mrs Platt, the other party to the discussion, was already in the kitchen and where the Claimant had entered the kitchen. He then had not indicated any reluctance to undertake the reflective practice in that location, although, as we have noted, Mr King had confirmed shortly prior to that that the onus was not on the Claimant himself to identify when adjustments were not being applied.

[207]The reflective practice appeared to be quite brief, and the Claimant did not appear to have indicated any particular difficulties arising from it. Nevertheless, we were satisfied that the Respondent had been under a duty to remove or alter the physical feature in question, by providing a lamp or some form of dimmed lighting, and it not done so. Mr King had confirmed in the discussion shortly prior to the particular incident that the provision of a lamp or adjusted lighting would not be difficult, and therefore it seemed to us that the Respondent had failed to take such steps as were reasonable to avoid the disadvantage to the Claimant caused by the bright light.

[208]With regard to Issues 23 to 26, the Claimant relied, in respect of this element of his complaint, on the playing of music on the radio or on Mrs Platt’s telephone in the playground, and on the use of power tools. We again noted the definition of physical feature and that it can include furniture, furnishings, material, equipment or other chattels in or on premises. We were satisfied that the playing of music on the radio, and the use of power tools, could be said to fall within that definition, although we were not satisfied that the playing of music by Mrs Platt on her telephone would do so.

[209]We were satisfied with regard to the playing of music on the radio and the use of power tools, that they were therefore physical features and, for the reasons we have already identified with regard to the impact on the Claimant of background noise whilst undertaking his work, that those features had put the Claimant at a substantial disadvantage in undertaking his duties in comparison with individuals without his condition.

[210]Again therefore, our focus was on the question of whether the Respondent had taken such steps as were reasonable to avoid the disadvantage. In that regard the Claimant complained of four occasions on which the radio was on in the playground whilst he was undertaking his open access work. Even if the times at which music was playing on Mrs Platt’s telephone were added that only made a total of nine occasions. With regard to the use of power tools, the Claimant raised complaints that that had happened on two occasions.

[211]As we have noted, we concluded that the Claimant worked open access shifts on more than a hundred occasions between first undertaking that work in November 2022 and finally doing so in December 2023. Furthermore, we noted that the occasions when music was played, and when power tools were being used, largely occurred in July and August 2023, the period during which the Respondent, principally in the form of Mr Powell, was undertaking a specific project with children and young persons to reduce anti-social behaviour, where the employees working, Mr Powell and the individuals attending were potentially different to those who would normally be attending open access sessions. We noted that Mr Powell and Mr Flakiewicz were not regular workers in the playground during periods in which the Claimant was undertaking his open access work, apart from this period.

[212]We further noted that the Respondent appeared very largely to have fulfilled the Claimant’s expectations that music or other background noises would not be playing when he undertook his open access work. Indeed the Claimant noted, in his email of 23 October 2023, that mitigations such as the radio not being used when on duty had been put in place, which meant that he could do his job and for which he was very grateful. It seemed to us therefore that, for very much the largest part, the Respondent had complied with its duty to take reasonable steps to avoid the disadvantage by ensuring, insofar as it could, that the radio was not played.

[213]The use of power tools had not been identified by the Claimant as a particular adjustment required when undertaking his role, although we anticipated that that was not something the Claimant would necessarily have appreciated would have happened, and it could potentially be considered to have fallen within the general background noise comment. Nevertheless, it appeared from the evidence that, on the two occasions on which power tools were used in the Claimant’s presence, as soon as the matter was brought to the attention of those using them, that issue was resolved.

[214]Ultimately therefore, we were satisfied that the Respondent had taken such steps as were reasonable to avoid the disadvantage caused to the Claimant by the playing of music on the radio and/or by the use of power tools. Harassment related to disability

[215]We noted that the Claimant raised thirteen acts of unwanted conduct related to disability, some of which we were able to group together. In respect of each of them we focused on whether the act had happened in fact, which we were very largely satisfied had been the case, before moving to consider whether what had happened could be said to have been related to disability and unwanted. We then moved to consider whether the conduct had the purpose or effect of violating the Claimant’s dignity, or of creating the required intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. We dealt with each of the asserted acts of unwanted conducted in turn, allocating a number to each of them for ease of reference. When noting our conclusions on the purpose or effect of the asserted conduct, for convenience we referred throughout to “violating dignity” as a shorthand for the entirety of the wording of Section 26(1)(b) rather than repeat both strands of that sub-section.

[216]First with regard to Allegations 1 to 3, we took all those together as they related to the playing of music by Mrs Platt on her telephone. We were satisfied that the acts took place as asserted, even though Mrs Platt was not able to confirm that she had played music on the phone on those dates. She indicated to us that she did play music on her phone quietly on occasions, and in relation to the last two dates she suggested that she did so when she was on the playground alone prior to the Claimant starting his open access shift on a Saturday afternoon.

[217]In all cases, we were satisfied that the playing of music had been unwanted and had been related to the Claimant’s disability as the Claimant had, prior to commencing the open access work, indicated that he would not be able to function properly with the radio playing in the background. Whilst we felt that there was a distinction to be drawn, not least in terms of possible volume, between the playing of music on the radio and the playing of music on a telephone, we nevertheless felt that, from the Claimant’s perspective, he did not wish any music to be played in the background whilst undertaking his duties.

[218]Our focus then moved on to considering whether the playing of the music by Mrs Platt on her phone had had the purpose or effect of violating the Claimant’s dignity. We were not satisfied that it could be said that there was any purpose behind Mrs Platt playing music on her phone. She appeared to do so on three consecutive sessions in July, but, when the matter was then raised by the Claimant, only subsequently did so on the two Saturday afternoon sessions we had noted. Had there been any purpose behind the playing of music by Mrs Platt to violate the Claimant’s dignity we considered that she would have done so more frequently and would not have taken any representations by the Claimant into account.

[219]With regard to the potential effect of the conduct, and whether that violated the Claimant’s dignity, the Claimant clearly perceived that it did, but we were conscious that we also had to take into account the other circumstances and whether it was reasonable for the conduct to have had that effect, assessing that objectively.

[220]In our view, the playing of music on her telephone by Mrs Platt on isolated occasions could not reasonably be said to have had the effect of violating the Claimant’s dignity. On the three successive occasions Mrs Platt appeared to play the music on her telephone, that was in circumstances where we anticipated that she did not think there was any issue with her playing music on the phone, the previously requested adjustment having focused only on the radio. When the matter was drawn to her attention, she then only played music on two other occasions, both of which, as we have noted, involved circumstances where the Claimant was not initially present. We also observed that, on occasions when the Claimant’s presence was brought to Mrs Platt’s attention, she did not continue to play the music.

[221]We also noted that Mrs Platt and the Claimant would largely work together on the open access sessions for at least two sessions a week, and therefore worked together on many occasions between November 2022 and December 2023. The incidents therefore only amounted to a very small proportion of the occasions on which the two worked together.

[222]Overall therefore, we were not satisfied that it could be said that the playing of music by Mrs Platt had the effect of violating the Claimant’s dignity.

[223]Allegation 4 involved the holding of the reflective practice on 2 December 2023 in the staff kitchen with the bright light, which we have already concluded involved a failure by the Respondent to comply with a duty to make reasonable adjustments. As a matter of fact therefore, the reflective practice was held in the staff kitchen, which had a bright light, and we were satisfied that that amounted to unwanted conduct related to disability, in that the Claimant had previously indicated that carrying out a reflective practice indoors under a bright light would be problematic for him.

[224]We again then moved to assess whether the act had the purpose or effect of violating the Claimant’s dignity. Again, we were not satisfied that we could discern any purpose behind the incident. As we have already noted, Mrs Platt was already in the kitchen talking to Mr Edwards when the Claimant entered and whilst, as we have noted in relation to the reasonable adjustments complaint, the onus was not on the Claimant to identify any difficulties arising from holding the reflective practice in the kitchen, we felt that it was an inadvertent response by Mrs Platt to hold the discussion there rather than to adjourn to a separate office.

[225]With regard to the question of whether holding the reflective practice in the kitchen had the effect of violating the Claimant’s dignity we again noted his perspective that it had. Again, we were conscious that we had to bear in mind the other circumstances and whether it was objectively reasonable to conclude that the conduct had had that effect.

[226]We noted that this appeared to have been the only reflective practice held in the staff kitchen where the bright light potentially created a problem. As we have already noted there did not seem to be any direct intention on Mrs Platt’s part to hold the reflective practice in the kitchen, and it simply arose naturally from the Claimant entering the kitchen following the completion of a conversation Mrs Platt was having with Mr Edwards. We concluded that it was then potentially a natural step for Mrs Platt to undertake the conversation there and then, even though from a reasonable adjustments perspective it would have been expected that she should have suggested that she and the Claimant move to a different room.

[227]Overall, looking at the matter objectively, we were not satisfied that it could reasonably be said that the holding of an isolated reflective practice in the staff kitchen, in circumstances where the Claimant himself attended and raised no point of objection, involved the effect of violating the Claimant’s dignity.

[228]We next took Allegations 5 and 6 together, as they both involved emails sent by Mr King to the Claimant, in which he noted, first, that he and Mrs Platt needed to find time to discuss practical solutions which did not jeopardise children’s welfare and enjoyment, and, second, that he had decided that it would be quite wrong to prevent music being played at a Halloween event.

[229]We were satisfied that the two comments would have been unwanted from the Claimant’s perspective; he wanted to attend the events and the fact that he was told his desire was initially to be balanced with children’s welfare and enjoyment, and that he was subsequently told that his desire would not be granted, would have been unwanted to him.

[230]We again saw nothing to suggest that there had been any purpose behind Mr King’s emails in terms of violating the Claimant’s dignity, and we were also satisfied that there was nothing to indicate objectively that it was reasonable to conclude that the particular comments violated the Claimant’s dignity. They were not of themselves in any sense offensive, and it was not unreasonable for Mr King to identify that the Claimant’s request needed to be balanced with other factors.

[231]Whilst the reference by Mr King in the 31 October 2023 email to it being “quite wrong to prevent music being played” could simply have been said to have been “wrong”, we did not consider that it could reasonably have been said that the particular words used by Mr King violated the Claimant’s dignity.

[232]The comment referenced in Allegation 7 was very similar to the comment referenced at Allegation 7, and, for the same reasons, we did not consider that it could reasonably have been said to have had the effect of violating the Claimant’s dignity. With regard to the second element of this Allegation, whilst Mr King did raise the point that the Claimant could have approached Mrs Platt about attending the event at an early stage, we did not consider that this in any sense amounted to blame as contended by the Claimant. We again therefore did not consider that it could reasonably have been said to have had the effect of violating the Claimant’s dignity.

[233]With regard to Allegation 8, the comments made by Mr King on 9 November 2023 were accepted as having been made by him. He explained that he had made them in an attempt to lighten the discussion he was having with the Claimant, although he accepted during the course of this hearing that his attempts may have been misguided.

[234]We considered that the references to accommodating the Claimant’s requests as being a “pain in the arse”, to questioning why the Claimant could not be “ordinary like the rest of us”, and to the Claimant being a “weirdo”, even though Mr King was classifying himself in the same manner, would clearly have been unwanted to the Claimant. We did not consider that Mr King had any adverse purpose in mind in making those comments, in fact as we have noted, he appeared to be trying to put the Claimant at ease, although his method of doing so was misguided.

[235]The Claimant himself clearly perceived the comments as violating his dignity, and we considered that, objectively, it was reasonable to conclude that the words had the effect of violating the Claimant’s dignity. They were comments from the Respondent’s Chief Officer, the most senior person within the executive structure of the organisation, and were comments which Mr King himself has, on reflection, agreed were inappropriate. In the circumstances, we were satisfied that the comments did involve unwanted conduct which had the effect of violating the Claimant’s dignity.

[236]With regard to Allegation 9, the particular issue raised here by the Claimant was the reference by Mr King to people who “suffer from neurodevelopmental issues” (the underlined emphasis is ours) when he, quite understandably preferred not to use that term. The Claimant pointed out to Mr King that it was not the way he would describe it, i.e. that he would not use the term, “suffer”, which led to Mr King insisting that it was nevertheless not a pleasant experience, i.e. to experience issues arising from the playing of music.

[237]We noted that this discussion took place in circumstances when Mr King was attempting to explain that he felt that the Claimant was drawing on his personal situation, whereas others with neurodevelopmental issues might not have the same experiences. Whilst we entirely understood why the Claimant would perceive that the use of the term “suffer” violated his dignity, we considered that it was an immediate, and largely natural, response of Mr King to the way the conversation had developed. Whilst he could, and perhaps with hindsight would agree that he should, have simply said, “other people who have neurodevelopmental issues”, rather than “other people who suffer from neurodevelopmental issues”, we did not consider that his use of the word “suffer” could reasonably have been said to have violated the Claimant’s dignity in the circumstances in which it was used.

[238]With regard to Allegation 10, the issue here was that Mr King had pointed out to the Claimant that the Respondent did not have significant resources and that making adjustments could therefore be potentially problematic. Whilst we again appreciated that the Claimant himself may have perceived that those words violated his dignity, we did not accept, as contended by the Claimant, that they indicated a lack of priority on the part of Mr King and Mrs Platt to the implementation of the Claimant’s reasonable adjustments, and that having to do so was an inconvenience to them. They were, in our view, matter of fact words, which simply described the circumstances of the organisation and the issues that needed to be taken into account. We did not consider that it could reasonably be said that those words had the effect of violating the Claimant’s dignity.

[239]With regard to Allegation 11, similar to the reference to “weirdo” in Allegation 8, we considered that the reference to the impact on the Claimant’s ability to work due to potential mental health issues, and the comparison of that with someone being impacted by a “good booze up” was unwanted conduct, and, for similar reasons, could reasonably be said to have had the effect of violating the Claimant’s dignity. The discussion involved around Mr King’s own concerns that the Claimant’s work and care for children would be impacted by his mental health situation, and we felt that that concern was trivialised by Mr King’s comparison of that with someone attending work suffering with a hangover. We were again therefore satisfied that this comment did have the effect of violating the Claimant’s dignity.

[240]With regard to allegation 12, Mr King accepted having made the asserted comments and noted that they had arisen in circumstances where he had had concerns about the Claimant’s ability to undertake open access sessions when he had referenced having suicidal thoughts. However, we noted that the Claimant had made clear, both in that meeting and previously, that his concerns were not over undertaking the sessions themselves, but over the potential of having to undertake the sessions in circumstances in which the requested adjustments were not provided.

[241]We have already noted that those circumstances were, in reality, quite few and far between, but nevertheless we felt that the references by Mr King, effectively to the Claimant being at fault, rather than to any failure to apply the reasonable adjustments having been the responsibility of the Respondent, involved unwanted conduct. It was clearly perceived by the Claimant to have had the effect of violating his dignity, and we felt again that it could reasonably be said that the conduct would have had that effect. That was particularly in circumstances where the Claimant was at pains to explain his perspective, and then was faced with comments by Mr King that he had said that he was unable to work with Mrs Platt. Whilst the Claimant had done so in one email, he had nevertheless consistently indicated that he was willing to work with Mrs Platt. In our view, that did involve the effect of violating the Claimant’s dignity.

[242]Finally with regard to Allegation 13, similar to the comments made by Mr King in relation to Allegation 10, we felt that the words used by Mrs Humphreys on 9 November 2023 were straightforward, matter of fact, comments. They were made in the middle of quite a heated discussion between Mrs Humphreys and the Claimant, which became quite personal, but the reference by Mrs Humphreys to the fact that certain things, i.e. adjustments, might be able to be accommodated, and certain things might not, was a straightforward summary of the reality of the circumstances, which could not reasonably be said to have involved a violation of the Claimant’s dignity. Victimisation

[243]We were satisfied that the Claimant’s grievance issued on 12 December 2023 was a protected act. In the grievance, the first numbered paragraph had noted that, “Since the Summer of 2023 reasonable adjustments I had been afforded during open access play work provision since my appointment in December 2022 have not been adhered to by various staff nor enforced by my Line Manager, Linda Platt or the Chief Officer, Malcolm King.”. That clearly involved an allegation that the Respondent had contravened the Equality Act.

[244]The detriments that were said to have taken place, were the removal of the Claimant from his second role, and the failure to pay the Claimant wages for his open access shifts from 8 January 2024. We noted the guidance of the House of Lords in the Shamoon case that a detriment exists if a reasonable worker might take the view that the treatment was in his circumstances to his or her disadvantage.

[245]There was little doubt in our mind that being dismissed from a particular role, with the consequent lack of payment of wages in respect of that role, would be considered to be detrimental. Our focus then was on causation; did the Respondent subject the Claimant to those detriments because the Claimant had done a protected act? In that regard we noted that the question was whether the decision was materially influenced by the doing of the protected act.

[246]We noted that matters had become rather contested by the start of December 2023, when the Claimant initially indicated that he would not work the Saturday afternoon open access session on 2 December, although he did in fact do so. He then also indicated that he was unable to work that shift the following week on 9 December. However, at that point there was no indication from the Respondent that there were any deeper issues, even though the Claimant had identified having had fleeting suicidal thoughts at a meeting over a month earlier.

[247]On 15 December 2023, Mr King noted that the open access session the following day was to be cancelled, but did not raise any concerns regarding the Claimant’s ability to undertake future sessions. The Claimant then noted, in reply the following day, that he was available to work the open access sessions the following week, but was told on 21 December 2023 that he would not be rota’d for any other sessions over the Christmas and New Year period. That then developed into Mr King’s decision on 16 February 2024 that the Claimant should not undertake any further open access work.

[248]We noted that Mr King’s decision regarding the Claimant not doing the open access work first arose very soon after the Claimant issued his grievance, in circumstances where, notwithstanding, the Claimant had been unable to work the previous week, the Claimant was making clear that he was able to undertake the work moving forward.

[249]We considered that those matters were sufficient to switch the burden of proof to the Respondent, and to require it to demonstrate a nondiscriminatory reason for the decisions that were taken. As we have already noted, we did not think that the Respondent undertook a sufficient investigation of the medical situation before taking the particular decision, in circumstances where there were straightforward steps, notably the involvement of Occupational Health, which could have been taken.

[250]In the circumstances, we were not satisfied that the Respondent had established a non-discriminatory reason for the treatment in question, which led us to conclude that Mr King, by the decisions he took from 15 December 2023 onwards culminating in his decision that the Claimant should cease to work on the open access project on 16 February 2024, had been materially influenced by the Claimant’s grievance. His complaint of victimisation was therefore made out. Unauthorised deductions from wages

[251]With regard to the Claimant’s unauthorised deductions from wages complaint, we were satisfied that the Claimant had been formally and, subject to any possible termination on notice, permanently, engaged in the open access role from February 2023, alongside his inclusion project role. The Claimant was then ready, willing and able to undertake his duties in that role in January and February 2024, but was prevented from doing so by the Respondent. The total amount of wages therefore paid by the Respondent to the Claimant in respect of the period between 8 January and 16 February 2024, when the Claimant’s open access work was brought to an end, was therefore less than the total amount of wages properly payable by the Respondent to the worker in respect of that period, and there had therefore been an unauthorised deduction from the Claimant’s wages in respect of sums due to him during that period.

[252]Turning finally to remedy matters, we considered the remedy issues at paragraphs 31 to 36 of the List of Issues and our decisions were as follows. Declarations

[253]First, with regard to declarations, for the record we made the following declarations:(i) The Claimant was treated unfavourably by the Respondent because of something arising from disability by being removed from his second role on 2 February 2024.

(ii) The Respondent did fail to comply with its duty to make reasonable adjustments by the holding of a reflective practice in the staff kitchen under a bright light on 2 December 2023.

(iii) The Respondent did subject the Claimant to harassment related to disability by comments made on 9 November 2023 and 9 February 2024.

(iv) The Respondent did victimise the Claimant by removing him from his second role on 16 February 2024, and by not paying him for his open access shifts from 8 January 2024 because of the grievance he had raised. Recommendations

[254]With regard to recommendations, we noted that the Claimant sought four recommendations, dependent upon which of his complaints were successful. They were: a recommendation for an apology, and for some sort of training relating to the harassment complaints; a recommendation for some sort of mediation, or for the outstanding grievance to be expedited; a recommendation that reasonable adjustments be put in place; and a recommendation that the Claimant be reinstated to his open access role.

[255]We noted that Section 124(3) of the Equality Act provides that an appropriate recommendation is one that, within a specified period, the Respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the Claimant of any matter to which the proceedings relate.

[256]We were satisfied that it was appropriate to make the recommendation sought by the Claimant that he be reinstated. We considered parallel appellate decisions in relation to reinstatement as a specific remedy in unfair dismissal cases, where the most important factor is practicability. In this case, the Claimant had always been keen to undertake the open access sessions, and had confirmed that, subject to the implementation of adjustments, he had no issue in doing so. We also noted that, whilst there had been issues in the Claimant’s relationship with Mrs Platt, he had also confirmed that he had no difficulty in working with her.

[257]On the Respondent’s part, both Mr King and Mrs Platt were very complimentary about the Claimant’s abilities as a play worker, and Mrs Platt confirmed that she was able to work with the Claimant. It seemed to us therefore that it was clearly practicable for the Claimant to resume his open access role, and we felt that that would be a step which would obviate the adverse effect of the discriminatory treatment which arose in the context of the Claimant’s successful discrimination arising from disability and victimisation complaints.

[258]We therefore made a recommendation that the Claimant be reinstated to his open access role alongside his inclusion project role, with effect from 16 February 2024, and that he be paid all appropriate salary payments, subject to statutory deductions and the deduction of employee pension contributions, and also that the Respondent pays all appropriate employer pension contributions into the relevant scheme from that date onwards.

[259]For the avoidance of doubt, our recommendation does not mean that the Claimant will necessarily physically return to the open access work, as the Respondent may consider that his suspension from that work will be appropriate alongside his suspension from the inclusion project work. He will however need to be paid in respect of that role. We did not consider that the other recommendations sought by the Claimant would be appropriate as they lacked specificity.

Compensation

[260]With regard to compensation, our recommendation regarding reinstatement addressed the Claimant’s compensatory losses arising from the discriminatory termination of his open access role on 16 February 2024. There therefore remained only the calculation of compensation in relation to the Claimant’s unauthorised deductions from wages complaint between 18 January and 16 February 2024. That involved a period of six weeks, during which we anticipated that the Claimant would have worked three sessions, the two evening sessions and the one Saturday afternoon session, where the employee on maternity leave was still absent. That totalled 15 hours each week, which led to a calculation of 6 x 15 x the hourly rate of £10.50, making a total of £945.00 gross.

[261]With regard to injury to feelings we noted the guidance in Johnson and in Vento itself, and the particular guidance in Stowe that a discriminatory dismissal is not to be considered as a one-off event and should fall within the middle Vento band. In this case as we have been discussing, we were dealing with a discriminatory dismissal, albeit a dismissal from only one of two roles held by the Claimant. We considered therefore that we were bound by Stowe to place the injury to feelings award in the middle Vento band i.e. somewhere between £11,700 and £35,200.

[262]With regard to where to fix the award within that band, as we have noted the Claimant provided very little evidence on the impact of the dismissal decision on him. Even the Claimant’s evidence from earlier periods, fundamentally his fleeting thoughts of suicide, focused on the reasonable adjustments complaint which we had not decided in his favour. We took into account the guidance of the EAT, in the very recent case of Eddie Stobart Limited -v- Graham

[2025] EAT 14

, that it can properly be borne in mind that in every kind of discrimination case a Claimant will usually suffer some injury to feelings, and we had no doubt that the Claimant’s feelings were hurt by his dismissal from the open access role.

[263]Ultimately, assessing matters as best we could, and taking into account the limited evidence provided by the Claimant of significant injury arising from the dismissal decision, we put the injury to feelings award at the lower end of the middle band, and put it at the sum of £15,000.00. Interest

[264]With regard to interest, interest on injury to feelings awards runs from the date of the act of discrimination complained of up to the date of the calculation. Whilst we did consider discrimination occurred in November and December 2023 we considered that the core of the Claimant’s successful complaint revolved around his dismissal from the open access role on 16 February 2024, and we felt therefore that interest should run from that day up to the date on which the calculation was made, 18 February 2025. That involved a total of 368 days, and a total amount of interest of £1,209.86.

[265]As we had addressed the Claimant’s financial losses by way of our reengagement recommendation, we did not consider it appropriate to award further interest. Uplift

[266]Finally, we noted that we were urged to apply an uplift to our awards because of an unreasonable failure to comply with a provision of the ACAS Code. The core of the Claimant’s contention in that regard related to what was said to have been the Respondent’s failure to deal with the Claimant’s grievance, which, as we have noted, remains outstanding notwithstanding that it was raised in December 2023. However, we noted that no complaint was raised around any failure to deal with the grievance, and the Claimant has not subsequently sought to amend his claim to add such a complaint.

[267]We considered therefore that it would not be just and equitable to order an uplift for a failure which was not part of the Claimant’s pleaded case, and therefore applied no uplift. Authorised for issue by