[1]I have undertaken a preliminary consideration of the claimant’s application for reconsideration of my judgment on preliminary issues where I struck out part of the claimant’s case on the basis it had no reasonable prospect of success and I refused permission for some amendments to the claim (some other amendments had been allowed by consent). The claimant made his application on 6 July and added some further information on 8 July.
The law
[2]An application for reconsideration is an exception to the general principle that (subject to an appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Under Rule 71 an application for reconsideration has to be made within 14 days of the date on which the written reasons were sent.[4]Under Rule 72(1) I may refuse an application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[5]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 where it was said: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review.”[6]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the Employment Appeal Tribunal said: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[7]The reasons for my decision are as follows. Strike out of the claimant’s complaint of direct disability discrimination about loss of entitlement to TBR in 2015[8]I struck out this complaint on the basis that I was satisfied, taking the claimant’s case at its highest, he had no reasonable prospect of establishing it was part of a continuing act of discrimination or (if out of time) should be granted an extension of time on a just and equitable basis.[9]In his reconsideration application the claimant says that Mr Colclough made another decision within the 6 year period as Mr Colclough advised Ms Maunder to reinstate the claimant’s TBR on the alleged basis that it was 15 minutes a day and not worth the management time in dealing with the dispute. The claimant alleges that in doing so Mr Colclough was seeking, in effect, to both hide and correct, what he says Mr Colclough knew was an earlier breach of the Equality Act when he originally withdrew the claimant’s TBR. He considers that Mr Colclough was anticipating that legal action was coming. The claimant refers to paragraph 5 of the respondent’s grounds of resistance which state “His manager, Abigail Maunder contacted Andrew Colclough in or around June 2021 in relation to TBR. Mr Colclough had previously been the Claimant’s manager, but no longer worked at the Mail Centre at the time Ms Maunder contacted him. It is believed Mr Colclough advised Ms Maunder to commence payments of TBR to the Claimant, on the basis that the payment related to 15 minutes per day and did not justify the management time that would be involved in dealing with any dispute over entitlement to TBR...”[10]This is not, however, how the claimant presented his case at the preliminary hearing. In fact it is the opposite. The point arose in cross examination of the claimant and he referred to the ET3 response form and was then taken to the extract in question. The claimant then said, words to the effect: “why would she (Ms Maunder) contact Mr Colclough about TBR, he’s not HR, and I think she went to HR; I don’t think she went to Mr Colclough about it.” Mr Hoare then said the respondent disputed the claimant’s version of events.[11]It is therefore not the case that I was unaware of what the respondent said in their ET3 response form. I was aware of it and it was specifically referred to at the preliminary hearing. However, I had to reach my decision on the basis of what the claimant’s case was, not the respondent’s case. The claimant’s case that he presented to me was that he did not accept that Ms Maunder had spoken to Mr Colclough when deciding to reinstate his TBR, only to HR.[12]On that basis I do not consider that there are reasonable prospects of my decision on this point being revoked. There has to be structure and finality in litigation and I have to be able to proceed on the basis of assessing the case that the claimant puts before me. It is not in the interests of justice for parties to change their case to put it a different way once there has been a decision that is not in their favour.[13]In reaching this decision I have taken into account what the claimant says about fairness and the suggestion that he felt ambushed at the preliminary hearing. He says that before the preliminary hearing he had not seen the email sent at my direction on 26 May explaining what the preliminary hearing was about, and that it was not just about amendment and case management but was also about time limit issues. The claimant emailed the Tribunal on 28 May to say he had only found the email after the hearing on the 27 May when looking at his spam email folder. He says he feels he was disadvantaged in not being able to put forward his relevant evidence.[14]I should be clear that when I drafted and promulgated my reserved judgment on preliminary issues I was not aware that the claimant had not received the email of 26 May. His emails to the Tribunal had not been referred to me and I only became aware of them when the claimant made his reconsideration application. I also was not aware at the hearing itself that the claimant had not received that email. I believe I did refer to it at the start of the hearing, but I will readily accept that it is the type of point where it would be easy to be at cross purposes and for there to be a misunderstanding.[15]I do not, consider, however, that this means it is in the interests of justice for there to be a reconsideration hearing. This is for the following reasons:(a) I do not consider it was reasonable for the claimant to have been under the misapprehension that time limits were not going to be considered at the preliminary hearing. The “out of time” issue was clearly set out in the notice of preliminary hearing of 5 May 2022 as the first issue that was going to be addressed;(b) At the start of the hearing itself I explained again what needed to be decided at that hearing, including what was relevant to the time limit issues;(c) During the course of the hearing on two other occasions I again explained to the claimant why it was necessary for him to give evidence under oath;(d) The claimant was ultimately being asked to explain what he was saying amounted to discrimination and why, and what he was saying the linkage was between these things so as to arguable making them a continuing act/state of discriminatory affairs. In essence, that is being asked to set out what the basics of your case is. A litigant, including a litigant in person, should be in a position to explain those things at a hearing. A Judge is entitled to ask and the other party entitled to know the basic ways in which a case is put;(e) This is even more the case in the circumstances in which there had been opportunities for the claimant to consider and set out his case. These include: his claim form; his further and better particulars of his victimisation claim; his application to amend; the case management hearing with EJ Ryan;(f) There was also the hearing before me where the claimant had multiple opportunities to set out what he wanted to say. I went through the different types of complaint he was seeking to bring at the start of the hearing; he then gave evidence where he had opportunity say what he wanted to in answers to questions from me, cross examination by the respondent and anything else he wanted to clarify; he then had the opportunity to make final observations after the respondent set out how they put their case on the preliminary hearing issues;(g) The claimant refers to not being able to put his documents forward. There was no formal direction for exchanging documents and preparation of a preliminary hearing bundle. However, he does not dispute that the respondent had asked him if he wanted to add any documents to the bundle they had voluntarily prepared and he did have access to it. I was also fully content to take into account, and take at face value, what the claimant told me about what ever documents he said existed. For example, he wanted to refresh his memory from a grievance document prepared by Ms Maunder that he had on his phone and he did so and read parts out. There was no issue with him doing that. Moreover, I was ultimately deciding the point on the case that the claimant set out and explained to me; not about what documents said.[16]The other observation I make is that the claimant has not until now set out his claim as being about the actions of Mr Colclough in 2021. His complaint about discrimination in 2021, with regard to TBR, was about the actions of Ms Maunder; not Mr Colclough. He identified the act of discrimination as being Ms Maunder re-stating that he was not entitled to TBR. In his ET1 claim form the claimant complained about the actions of Ms Maunder in redelivering paperwork saying he was not entitled to TBR. In the claimant’s application to amend (incident 4) he said “On or around June 2021 the late shift manager Abigail Maunder continued the direct discrimination course of conduct of her predecessor late shift manager Andrew Colclough by the continuing act of revoking my TBR…during the alignment exercise.” He said that when she was given the opportunity to correct the discrimination about his TBR she confidently asserted he had no entitlement to TBR. The claimant referred to Ms Maunder later “repenting” and reinstating his TBR but said that the act of direct disability discrimination had occurred for a further 2 weeks as a result of her initial decision. At the preliminary hearing before me the claimant continued to put forward his case in the same way; in particular that the discriminatory act was the action by Ms Maunder in her letter of 24 June saying he had no right to TBR. As part of my consideration of the issue of time limits, it was therefore the link between that action by Ms Maunder and the original actions of Mr Colclough that I was considering as part of my decision making; because that is the way in which the claimant had consistently presented his case.[17]The claimant therefore did not present his case as being about Mr Colclough committing further acts of discrimination in advice or direction given to Ms Maunder. As already stated, the claimant at the preliminary hearing specifically rejected the notion that there had been contact between Ms Maunder and Mr Colclough in that way. Again, here my viewpoint is that I was entitled to expect the claimant to set out his case to me and to proceed on that basis of what he told me.[18]The claimant now says that Ms Maunder did not make a fresh new decision (or not until later on after he raised a fresh discrimination complaint). Again that is simply the opposite of how he described it at the preliminary hearing.[19]The claimant says there is conduct extending over a period because there is linkage to other more recent detriments that are within time. He gives as examples the creation of what he terms the fictitious document. But again that is simply not how he presented the case at the preliminary hearing. I very carefully asked him about what he accepted were isolated acts and what he was saying was linked to what and why. I then proceeded on that basis in my decision making.[20]The claimant also seeks to make a link with earlier events such as theft allegations in 2010 and Mr Colclough seeking ill health retirement for him in 2012/2013. They would not serve to bring the complaint about TBR in time. But in any event, again that is not how he presented his case at the preliminary hearing.[21]The claimant refers to case law such as Pugh v National Assembly about the need not to focus upon terminology such as whether there is a rule, regime or practice but on the substance of the complaint of discrimination. I directly set out the authorities on this very point in my reserved judgment and reminded myself of the principles in my decision making. At the end of the day you have to use some terminology to explain your reasoning when giving a decision. The case law such as Coutts is a helpful tool to structured decision making to make sure the various ways in which time limit points may be put forward have been fully considered. But it is and was to me in my decision making no more than that. I focused on the substance of what the claimant told me he was complaining about and what he said was linked to what.[22]In summary, I am satisfied on the basis of what is before me that there is no reasonable prospect of my original decision being varied or revoked. The application for reconsideration is therefore refused.
The legal principles
[23]The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) 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.”[24]Consequently, it is for a claimant to establish facts from which the tribunal can reasonably conclude that there has been a contravention of the Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.[25]In Hewage v Grampian Health Board [2012] IRLR 870 the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provisions should apply. That guidance appears in Igen Limited v Wong [2005] ICR 931 as supplemented in Madarassy v Nomura International Plc [2007] ICR 867. Although the concept of the shifting burden of proof involves a two-stage process, that analysis should only be conducted once the Tribunal has heard all the evidence. Furthermore, in practice if the tribunal is able to make a firm finding as to the reason why a decision or action was taken, the burden of proof provision is unlikely to be material.
Findings of fact
[26]We do not have to make findings on every point in dispute between the parties; only those that we need to determine to answer the Issues in the case. Where there is a dispute we make our findings applying the balance of probabilities.[27]The claimant has been employed by the respondence since 2003 as an Operational Postal Grade. In December 2008 the claimant was suspended facing allegations of theft and was exonerated in January 2009. Whilst on suspension the claimant was the victim of a hit and run car accident which left him with a long term impairment to his right wrist and arm. He had a significant period of time off work receiving treatment for this and also for his mental health. In December 2020 the claimant faced a further investigation for alleged theft, which was conducted by the then late shift manager, Mr Colclough. The claimant was again exonerated. The claimant was regularly reviewed by occupational health who prepared a series of reports, including about modifications to the claimant’s duties. 28. [226] is a document signed off by Mr Colclough as Late Shift Manager and Mr Miah, the CWU shift representative that is undated but appears to date to around early 2014. It is headed “Time Bonus Supplement – Full Time (Late Shift) and says that there had been a review of the Late Shift Duty set with the full co-operation of the CWU. It says: “One of the entitlements is Time Bonus; this is a 15 minute relief prior to the end of your shift (e.g. 21.45 – 22.00). Time Bonus is applicable to the below criteria: 1. Employment prior to 16th August 2007 – in line with the local agreement between the CWU and Royal Mail The following examples do not attract a Time Bonus supplement: 1. Anyone employed after 16th August 2007 2. If you are sitting in a current duty created after 16th August 2007 (In the event of any reversion to a duty that would attract Time Bonus you would then be entitled) After understanding the above criteria – we have noted that you are not entitled to this relief break. Therefore we will be asking you to meet the contractual obligations of a full duty attendance. This will take affect from Week Commencing 3rd February 2014. If you have any concerns or feel that you are entitled to receiving this Time Bonus supplement then please contact your Work Area Manager and CWU Rep at the earliest opportunity.”[29][226] reads as if it was sent out to individually affected employees but it has not been suggested to us that it was ever individually given to the claimant.[30]On 3 December 2014 the claimant was sent a letter by the then Late Shift Manager, Andrew Colclough [225]. The typed version gives the date of 3rd December 2015 but has been hand amended to 2014. The claimant says he made his hand amendment to correct the date when he received the letter. The letter is addressed to the claimant’s union representative, and is headed “Simon Ali Work Pattern”. It says: “Mo As discussed to reach a resolution which will be beneficial to all parties I can now confirm that I am in a position to align Mr Ali to the correct workload at the correct times in line with his OH Assist Referral. See below the new pattern to commence from Monday 4th January 2015 and will be a permanent role. Monday 13:15 – 20:15 (Reception Cover) Break 17:00 – 18:00 Tuesday – Thursday 12:00 – 13:30 – DSA 13:30 – 14:30 – Reception 14:30 – 17:00 Parcels 17:00 – 17:45 – Break (45 mins) [against this entry is an handwritten comment saying “? 1 hr like everyone else”] 17:45 – 20:00 – Reception Friday 12:00 – 13:00 – DSA 13:00 – 14:00 Friday prayer 14:00 – 17:00 – Parcels 17:00 – 17:45 – Break (45 mins) 17:45 – 20:00 – Reception [against this entry is a handwritten comment with an arrow saying “no time bonus] Total Hours = 39 Hours Please not [presumably note] that as a new duty set this will not attract time Bonus Relief or Late Shift Allowance.”[31]The handwritten annotations about the break of 45 minutes being less than the 1 hour of everyone else, and the reference to no time bonus were made by the claimant at the time. He says he discussed three sets of concerns with his union rep, Mr Miah to take away and discuss with Mr Colclough. These were:(a) the incorrect date(b) the shorter 45 minute lunch breaks Monday to Thursday (which as we understand it was to fund the provision for 1 hour Friday prayer) and(c) the removal of time bonus relief and shift allowance. The claimant says that Mr Miah later came back to him to say that he had managed to get part of the shift allowance reinstated but that was all he heard. The claimant says he carried on at that time in 2015 working the hours outlined in the letter at [225]. The claimant was aggrieved at the time about the removal of his TBR and part of his late shift allowance. He did not pursue a formal grievance or employment tribunal proceedings at the time about the removal of TBR and shift allowance, for reasons explored in the Reserved Judgment of EJ Harfield of 23 June 2022. 32. [227] is a different version of this letter. It is fully typed with a date of 3rd December 2015. It gives a commencement date for the new pattern of Monday 4th January 2016. The pattern for Monday is the same as [225]. There is at [227] no separate entry for Friday. Tuesday to Friday are instead recorded as 12:15 – 13:30 – DSA 13:30 – 14:30 – Reception 14:30 – 17:10 – Parcels 17:10 – 18:10 – Break 18:10 – 20:15 – Reception[33]There is now 1 hour break each day (not 45 minutes). [227] moves the start time Tuesday to Friday back by 15 minutes and likewise the end time back by 15 minutes so that Tuesday to Friday the claimant would be due to finish at 20:15 not 20:00. [227] makes no mention of Friday Prayer. The letter at [227] also has an address header of the Cardiff mail centre, Penarth Road, Cardiff, CF11 8TA. Mr Colclough’s sign off also has under his job title “Cardiff Mail Centre.” Both [225] and [227] say “Please not that as a new duty set this will not attract Time Bonus Relief or Late Shift Allowance.” [227] is the document that the claimant describes as being fictitious and fraudulent. He says it is not genuine and he did not receive it at the time it purports to have been written.[34]The respondent undertakes re-alignment exercises every 12 months or so. This involves reviewing the work pattern over a 12 month period and then aligning staff shifts and hours to match that work pattern. It is done in conjunction with the CWU. There were various realignment exercises over the years between 2015 and 2021 that we do not have details about. The claimant also says that the issue of losing his TBR was discussed with other work managers in the past, but they had refused to help him [254 – the claimant’s version of the minutes of 23 November 2021] but again we do not have any further details of this.[35]The claimant tells us that by the time of the events in question (i.e. before Ms Maunder did the 2021 realignment exercise) he was working Monday to Friday 12 pm to 8pm. By then he was taking his 1 hours break from 7pm to 8pm, meaning he could in effect leave the workplace at 7pm as his break was the last part his shift. He says he was not taking TBR and had not taken it since Mr Colclough revoked it.[36]A further re-alignment process took place in May 2021 to incorporate a shorter working week which meant that frontline staff’s attendance hours were reduced by 1 hour but pay remained the same. As part of this exercise Ms Maunder, now Late Shift Manager, met with individuals who had adjusted duties. This was about 5 individuals including the claimant. The purpose was to discuss their shift patterns and what they could and could not do so that it could be factored into deployment decisions.[37]Ms Maunder met with the claimant on 12 May 2021. There was no discussion of TBR at that time. In the course of their meeting there was a discussion about the claimant’s working hours. The claimant says he told Ms Maunder he would leave his desk at 6:45pm with handover time and time to use the facilities meaning that he finished work and left at 7pm or sometimes after 7 pm, as he took his hour’s break from 7pm to 8pm. Ms Maunder disputes this stating the claimant had just said that he finished for his break at 6:45pm until 8pm. She says that she assumed from this that the claimant was taking TBR of 15 minutes. She says the colleague who covered the claimant’s break also said that he covered for the claimant from 6:45pm to 8pm. We preferred the evidence of Ms Maunder on this point and on the balance of probabilities we do not find it likely that the claimant told Ms Maunder that he was doing a 15 minute handover of duties between 6:45 and 7pm. We do not consider their discussion was likely to have that level of detail. It was also Ms Maunder’s presumption the claimant was taking 15 minutes TBR as she accepts she did not have that direct conversation with him about it at the time.[38]There is a dispute as to what happened next. The claimant in his witness statement says he met with Ms Maunder again on or around 25 May 2021 to clarify matters about the shorter working week and realignment and that at this meeting he said to Ms Maunder “Abbi, what about my TBR?” He says he was highlighting discrimination and unequal treatment. He alleges her response was to say: “you have no entitlement to TBR.” He says he was disheartened because she could at least have investigated it. The claimant says that Ms Maunder’s response was to refer to Mr Colclough’s document that revoked his TBR to confidently assert he had no entitlement to TBR. He says he spoke to the CWU rep who said: “leave it with me.” He says he then received, via the CWU, the letter from Ms Maunder dated 2 June found at [240-341] albeit he did not receive it until 24 June.[39]Ms Maunder disputes this version of events. She says there was no further meeting with the claimant until July 2021. She said in oral evidence that she initially contacted Mr Colclough, not about TBR, but to get a template letter from him. She says that Mr Colclough on 25 May then sent her the letter found at [225] but without the annotations on it. She says she did not open the email attachment at the time. On 27 May Mr Miah from the CWU sent her an email with a proposed new duty structure for the claimant found at [350] to incorporate the shorter working week. This has a proposed finish time of 19:45 to include TBR. Ms Maunder says when she saw that email, she continued to think that the claimant was entitled to TBR and did not know there was an issue about his TBR entitlement at the time.[40]Ms Maunder says that she first appreciated there was an issue when she opened Mr Colclough’s attachment. She says that on 2 June she sent a text message to Mr Miah saying she had just opened Mr Colclough’s letter she had received on 25 May, and it seemed that the claimant’s duty did not attract TBR. She says she said to Mr Miah that she would leave it with him to have a conversation the claimant about it. She says that she therefore took TBR off the claimant’s new duty structure and then sent Mr Miah the letter found at [240-241].[41]The letter at [240-241] is largely a cut and paste of [225] or at least [225] was used as its template. This is clear because it adopts the same typographical error of “not” instead of “note.” It is dated 2 June 2021 and is headed “Simon Ali Work Pattern.” It does not have the address of the Cardiff Mail Centre at the top (like [225] but unlike [227]). There is a very similar opening sentence of “As discussed, to reach a resolution which will be beneficial to all parties, I can now confirm that I am in a position to align Mr Ali to the correct workload at the correct times for his duty.” It goes on to say: “See below the new pattern to commence from Monday 28th June 2021 and will be a permanent role. Monday 12:15 – 13:30 – Parcels 13:30 – 14:00 – Reception 14:00 – 15:00 – Parcels 15:00 – 16:30 – Reception 16:30 – 17:30 – Break 17:30 – 20:00 – Reception Tuesday -Wednesday [there is a handwritten annotation 12:15 – repeated against each day] 12:30 – 13:30 – Parcels 13:30 – 14:00 – Reception 14:00 – 16:30 – Parcels 16:30 – 17:30 Break 17:30 – 20:00 Reception Thursday 12:15 – 13:30 Parcels 13:30 – 14:00 Reception 14:00 – 16:00 Parcels 16:30 – 17:30 Break 17:30 – 20:00 Reception Friday [against this is handwritten 14:00 start] 12:15 – 13:15 Parcels 13:15 – 14:00 (SWW Prayer) 14:00 – 16:00 – Parcels 16:00 – 17:00 – Break 17:00 – 20:00 Reception Total hours = 37 Hours [against this is handwritten a star and 37.5 hrs] Please not that as this was a new duty set created back in 2015. This duty does not attract time Bonus Relief or Late Shift Allowance.”[42]We therefore have a conflict of evidence between the claimant and Ms Maunder. There are discrepancies with both the accounts. The claimant, particularly in his cross examination of Ms Maunder was unclear and confused about the sequence of events. At times he agreed with her there was no second meeting in May. At other times he reverted to what his witness statement said. In relation to Ms Maunder there is a conflict between her oral evidence and her written witness statement. Her written statement says: “I contacted Andrew Colclough about TBR, and on 25 May 2021, he forwarded me the templated letter that Simon was provided with in 2015.” But in her oral evidence she said that her first contact with Mr Colclough was not about TBR. We also have not been given the text message she says she sent to Mr Miah.[43]We looked to see what documents were available to us. This includes the note that Ms Maunder subsequently prepared and gave to the claimant on 17 August 2021. This summary of events does not include a further meeting with the claimant in May 2021 and says that after receiving the templated letter “Abbie informed Mo Miah that it seems Simon isn’t entitled to TBR and hasn’t been since 2015 so the TBR was taken off the new duty structure which was issued to Simon on 02/06/2021.” That is the most contemporaneous document we have and accords with Ms Maunder’s oral evidence to us. Applying the balance of probabilities, we therefore ultimately prefer Ms Maunder’s oral account of events. We find Ms Maunder did not initially think there was an issue about TBR but thought that the claimant was legitimately taking it. She obtained the templated letter from Mr Colclough. We think it likely in doing so she was looking for a template she could re-use to set out the claimant’s work pattern. She said in evidence that the claimant’s duty was different to most people and most people only did one or two tasks whereas the claimant was undertaking a variety of tasks and rotating between them. On opening the email attachment, she then saw that the claimant was not entitled to TBR and so altered the work pattern before sending the letter found at [240- 241]. She also messaged Mr Miah to say it seemed the claimant was not entitled to TBR and had not been since 2015 and she would leave Mr Miah to discuss that with the claimant. Again, that seems the most likely sequence of events given that Mr Miah was in direct contact with Ms Maunder about the claimant’s duties under the shorter working week.[44]Ms Maunder said that around 14 June 2021 she went to work in Swansea for a week and Mr Miah telephoned her and raised concerns about the claimant’s entitlement to TBR saying that the claimant believed his duty was an adjusted duty under the Equality Act and not a new duty such that he should retain his TBR. She says that she was due to take a period of leave so told Mr Miah she would pick it up on her return from leave. She says that some time after her return from leave in the week commencing 28 June 2021, and therefore in late June or early July, she spoke with Mr Colclough to ask him what the conversation was he had with the claimant in 2015. She says Mr Colclough said that if you were signed into a new duty after 2007 you were not entitled to TBR but for the sake of 15 minutes she should just give it back to the claimant. She says that she therefore went back to Mr Miah and told him that. We accept that version of events.[45]The claimant remained concerned about his TBR entitlement. On 15 July 2021 he met with Ms Maunder and Mr Miah. The claimant says he told Ms Maunder he had been a victim of discrimination by Mr Colclough, he was protected by the Equality Act and that she should have sought advice from HR. Ms Maunder accepted the claimant may have mentioned discrimination and that he had said something about Mr Colclough although she did not recall that it was an accusation of discrimination directly against Mr Colclough. She states that she told the claimant and Mr Miah that it appeared to her that the claimant had already been taking TBR before she reinstated it. She based this on the fact she understood the claimant was taking a break of 1 hour 15 minutes which would be a break of 1 hour and 15 minutes TBR. We accept she did say words to that effect as they are recorded in her subsequent note at [242]. The claimant was saying that he had not had TBR. Ms Maunder asked the claimant what he was looking for from the meeting and he stated that any time owed from the TBR he believed he had missed out on from 2015 to July 2021 should be paid to him in monetary terms.[46]Ms Maunder states that after the meeting she spoke again with Mr Miah and again said from what she could she the claimant was already taking TBR. She says that on 19 July 2021 Mr Miah said the claimant no longer wished to pursue it. The claimant says he has no knowledge of this. We accept that Mr Miah, irrespective of whether he had the authority of the claimant to do so, did say that to Ms Maunder. Again, it is included in her note at [242].[47]The claimant then lodged a formal grievance [351-354]. We do not know the exact date this was submitted but it must have been in July or August. The claimant said he was raising a letter of grievance for discrimination and unfair treatment under the Equality Act. He said that in January 2015 it was made exclusively crystal clear to him in writing that he was not entitled to TBR by Mr Colclough. He said that was unfair treatment and direct discrimination. He said that by reinstating his TBR 6.6 years after the fact the respondent must accept there had been a serious mistake made which breached agreements and the Equality Act. He said that the respondent must accept that it was unfair, unfavourable or less favourable treatment to him that could not be objectively justified compared with nondisabled people. He said he was put at a disadvantage compared to the rest of the late shift.[48]The claimant said that by not paying the hours in question, the hours he worked of 1.15 hours a week for 6.6 years the respondent was further directly discriminating against him. He said his TBR should never have been revoked in the beginning, it was direct discrimination, and he should not have to be made to pay for his reasonable adjustment by means of his TBR. He said managers should have sought HR advice.[49]There was then some discussion with HR as to how to take the claimant’s grievance forward. We were told by Ms Maunder that HR said that because Ms Maunder had already had a meeting with the claimant and Mr Miah it could be treated as a stage 1 informal grievance meeting even though it had not been labelled that at the time. HR suggested that Ms Maunder write up a bullet point summary which she did producing the document at [242]. We accept that was the likely sequence of events as it explains how [242] came about and why it was written up about a month after the meeting of 15 July. It was received by the claimant on 17 August 2021, and he handwrote the date on his copy found at [242]. There is an error in Ms Maunder’s witness statement which she identified before she approved her statement under oath. Her witness statement says there was a further meeting on 17 August 2021, but everyone is agreed there was no meeting on that date.[50]The formal stage 2 grievance was allocated to Mr Walker who was on temporary promotion to shift manager. Mr Walker had previously only dealt with informal grievances not formal ones. He was aware of the grievance policy but not familiar with its detail and he did not re-read it. Mr Walker gave evidence, which we accept, that he was under a lot of pressure at the time he took on the claimant’s grievance. He was opening a new site where he had no internet access or access to resources. He was managing the induction of around 200 new casual workers who were working across 3 different shift patterns. It meant Mr Walker himself was working parts of the 3 different shift patterns across morning, afternoon and nights.[51]We accept Mr Walker’s evidence that he noticed the grievance involved Mr Colclough who was a grade 9 that was two levels above a shift manager. He queried this with the Cardiff Mail Centre Manager, Mr Press, but was told he could handle the grievance as he was on temporary promotion to shift manager. Mr Walker says that with hindsight he should have checked that with HR but felt at the time it was appropriate for him to handle it as he had checked it with a more senior manager. We accept his evidence.[52]On 3 September 2021 Mr Walker met with the claimant and Mr Farah from the CWU [243]. In the course of the meeting the claimant referred to other staff who had moved to a twilight shift but had kept their allowances. Mr Walker did not send a meeting note to the claimant to comment on. He says, which we accept, he did not know it was something he should do (not having checked the grievance policy) and that with hindsight he realises it would have been a good idea.[53]Mr Walker met with Mr Colclough on 10 September 2021 [244]. The record records Mr Colclough being asked: “why did you change Simon Ali duty” and Mr Colclough stating: “We didn’t just change his Duty, we Created a duty to support Simon as he was unable to carry out his current duty, and he also had some personal problems at that time.” Mr Colclough was asked whether the union was involved in the decisions, and he is recorded as saying: “Yes Mo Miah was the CWU REP at the time when we created this new duty for Simon. I also provided a letter to Simon Ali with all the new start finish times and location of work.” He was asked “was Simon TBR taken off him in 2015?” and Mr Colclough said: “When Simon signed for this new duty the letter, it stated that it did not attract TBR or late shift Allowance.”[54]Mr Walker interviewed Ms Maunder on 5 October 2021 [245]. She was asked if she recalled reinstating the TBR and said: “on my return from holidays I had a conversation with Andrew Colclough regarding Simons TBR and Was advised to reinstate it by Andrew.” She said she returned from holiday on 28 June 2021. She said Mr Colclough told her to reinstate the TBR as it was only 15 minutes a day. She was asked whether she believed the claimant was entitled to the reinstatement and she said she herself was under the impression the claimant was taking it before she was told to reinstate it. Mr Walker says he believes Ms Maunder was on leave hence the delay in interviewing her, combined with the fact he was working between sites at the time.[55]Mr Walker interviewed Mr Miah and Mr Khan from the CWU on 6 October 2021 [245A]. Mr Walker said in oral evidence there had been delays with the CWU in arranging this meeting, which we accept. The note records Mr Miah stating that there was a change in duty in 2015 to support the claimant. He was asked: “Was Simon happy with the changes made” to which he replied: “yes he was happy with the new changes we had made for him.” He was asked: “Did you support him with the new Schedule of Times that Andrew had made” and he said: “yes I believe I did support Simon.” The note also records Mr Walker showing a copy of the letter he had been given by the claimant. The note does not show Mr Walker asking Mr Miah any direct questions specifically about the removal of TBR and late shift allowance.[56]Mr Walker did not send copies of the interview notes to the claimant. He says, and we accept, that was because he was not aware it was something he should do. He did not think he was allowed to share notes of someone else’s interview. As above, Mr Walker had not re-familiarised himself with the grievance policy. He accepts now with hindsight he should have sent the notes to the claimant for comment.[57]There was also some delay in the grievance process due to a delay in obtaining historic occupational health records. Mr Walker was seeking to obtain a copy from archives albeit the claimant was able to give him a copy the claimant had already obtained, to speed things up.[58]On 22 October 2021 the claimant chased the grievance response saying it was over 30 working days into the process and that the long wait was causing him more stress and anxiety [246]. He acknowledged that some people had been on leave and that Mr Walker had conveyed that to him. On 27 October Mr Walker wrote to the claimant to say that he was currently unable to make a decision, and he apologised for the delay. He said it was because he was currently seeking advice on the case. He referred the claimant to sources of support [248].[59]On a date probably in early to mid November 2021 Mr Walker told the claimant his grievance had not been upheld [249 – 252] (his report is undated). Mr Walker addressed a complaint headed “Simon believes that his TBR should never have been Revoked as his employer was aware that he was disabled from around 2012 and should have Sought HR advice” by saying that the records from 2009 and 2010 show the line manager being supportive in terms of assessments and reasonable adjustments including a phased return plans and adjusted duty. He said: “given all the Referral information that I have been given the business has supported him: I cannot see any evidence that the business has discriminated against Simon under the Equality act.”[60]Mr Walker then dealt with a second point termed “Why was Simon made to pay for this Reasonable adjustment, by means of the Revoke of his TBR.” Mr Walker said the claimant had given him a letter which “advises on 3rd December 2014, a new duty was created to support Simon due to his Condition in line with his OHS Assist Referral. Simons new shift pattern would commence from Monday 4th January 2015.” Mr Walker says it was supported by the CWU and does state on the letter that the new duty will not attract time bonus relief or late shift allowances. He says: “so this was a new duty that Simon had signed for” and that the letter clearly stated the claimant would not be entitled to these and that the claimant was well aware he was going to lose this time/money back in 2015. Mr Walker stated he had checked a pay directive from 16/2002 which refers to “weekly time bonus pay supplement payment criteria” which states “Area Planning and Systems managers for the units concerned will provide a one-off list of employees who meet this criterion at the outset.” He says: “As Simons duty was different add times etc… he was not included on this list and this is why he was advised specifically in the letter sent in 2014.” The pay directive document was not before us as it was disclosed late and the claimant objected to its admission.[61]Mr Walker also said: “I have been made aware that this TBR was reinstated back in August 2021 by a senior manager covering the Mail centre manager role. This should not have taken place and should be removed given that Simon Agreed to these changes with his union Rep back in 2015. This was a mistake by the management team. No admission was given by this manger to state Simon should have been given this bonus from 2015. This manager was not fully aware of all the background of Simons duty.” He went on to say he believed the reinstatement was the wrong thing to do and, in his opinion, should be revoked asap.[62]In essence Mr Walker was saying he believed a new duty had been created for the claimant in 2015 which the claimant had agreed to and that it had been clearly set out to the claimant at the time that it would not attract TBR or shift allowance. He said he believed the respondent had made reasonable adjustments to support the claimant in work, including that new duty, which improved the claimant’s attendance. He thought the claimant’s TBR had been wrongly reinstated and recommended it be revoked again. He said in evidence that the reason given of it only being 15 minutes a day was “flippant” and not a proper management rationale for reinstating it.[63]Mr Walker accepts his outcome letter did not include a right of appeal. He says he used a template letter that was emailed to him by HR, as he was not able to access resources on the new site he was working on. He does not know why the right of appeal is not referenced but accepts he should have checked to ensure that there was one set out. He accepts it was an oversight on his part. We accept his evidence about this.[64]Mr Walker was obviously aware of the claimant’s grievance, as he was dealing with it. Mr Walker accepts he became aware of the claimant going through Acas conciliation on 10 September 2021 when in correspondence with the respondent’s lawyers but says he did not understand what Acas early conciliation was. He says he was not aware of the claimant’s tribunal claim being issued until 10 December 2021 when the solicitors Weightmans contacted him about this. This was after he concluded his grievance report.[65]The claimant contacted HR about the absence of a right of appeal, and they told him he could appeal and set that in train for the claimant. Mr Press appointed Mr Singh to conduct the grievance appeal.[66]The claimant attended a meeting with Mr Singh on 23 November 2021. He was accompanied by Mr Farah from the CWU. There is a dispute about what was said and what happened at that meeting. Mr Singh’s original notes are at [371-372]. The notes were sent to Mr Farah by Mr Singh on 24 November 2021, who forwarded them to the claimant on 25 November. On 29 November the claimant gave Mr Singh his version found at [253-255].[67]The dispute came about because on 26 November 2021 the claimant found the [227] version of the letter in his sick file. Both he and Mr Singh agree that the version of [227] they looked at on 26 November in the claimant’s sick file was a newly printed document, on a crisp white piece of paper.[68]The claimant believes that [227] was in his sick file that was in the room when he met with Mr Singh on 23 November 2021. He believes that [227] was deliberately forged and placed in his file to trap him and that entrapment plan was in place by 23 November. He calls it a fraudulent and fictitious document. In particular, the claimant believes that [227] had a duty finish time of 8:15pm put on it to make it look like he was dishonest and had been claiming TBR throughout (because the claimant was finishing at 7pm which would mean a 1 hour break at the end of his shift plus 15 minutes TBR).[69]At the meeting on 23 November the claimant was asked what his hours of attendance were before the shift change and under the proposed adjusted duty. He said 14:00 to 22:00 with TBR and 12:00 to 20:00 without TBR. The claimant says this series of questions and answers was “entrapment questions before the Fact”; i.e. that Mr Singh was trapping him into saying he finished at 8pm when the letter at [227] would show he was due to work on to 8:15pm. The claimant says that at the start of the meeting on 23 November he was looking through his sick file and he caught a glimpse of [227]. The claimant says that Mr Singh put his hands over the file and said words to the effect “don’t worry about that, its not important, we’ll deal with it later” and that Mr Farah then put the file aside. Mr Singh says that he does not recall that happening. Mr Singh accepts the claimant’s sick file was in the room. Mr Singh says he did not see the crisp white letter that is [227] until the 26 November. Mr Singh says that the version of Mr Colclough’s letter that was in the sick file and that was being referred to on 23 November is [225] and that at some point, after 23 November, someone had swapped [225] with [227] in the sick file. Mr Singh denies setting out to trap the claimant into saying his work hours were different to those at [227]. Mr Singh says there was no plan to set the claimant up whether individually by him or in concert with others such as Mr Colclough, Ms Maunder, and Mr Walker. Mr Singh says [225] was also being referred to and looked at in the meeting on 23 November because it said that the claimant would not be entitled to TBR and late shift allowance. He points out that both [225] and [227] contain this same sentence in any event.[70]Having evaluated the evidence and applying the balance of probabilities we do not find that Mr Singh knew about [227] as at 23 November 2021. We accept his evidence. We find that the version of the letter Mr Singh knew about on 23 November was [225]. [225] was the version that the claimant had given Mr Walker which Mr Singh would have had access to given he was hearing the grievance appeal and indeed on the claimant’s notes of 26 November at [256] Mr Singh talked about the claimant giving the letter to Mr Walker. As at 23 November 2021 we do not find that Mr Singh knew about or had a hand in creating [227]. We accept that the claimant may have been looking at his sick file on 23 November 2021 and that Mr Singh may have made a comment about looking at it later, but that would have been a reference to starting their meeting. It explains why Mr Farah would have then moved the file to one side.[71]On either version of the minutes of 23 November 2021 a comment had just been made that when Mr Colclough had adjusted the claimant’s duty the claimant “did not get removed from shift” and that only the late shift and early shift was entitled to TBR. It was therefore a perfectly logical question for Mr Singh to ask the claimant what his hours of attendance were before the shift change and what the proposed hours were under the adjusted duty. The claimant had changed from a 10pm finish to an 8pm finish. We do not find there was anything sinister in Mr Singh’s questions; they were genuine questions as part of his grievance appeal investigation.[72]The claimant then alleges that Mr Singh inserted two comments into the meeting minutes that he says were not said at all on 23 November. These are: “KS – on the letter that is in Simons file it clearly states that the duty given to Simon is a new duty and does not attract TBR, did you not see this or agree to this? Simon accepts that this was presented to him as new duty you accept that you were told this attracted no TBR.”[73]The claimant asserts that Mr Singh added these comments after the event and are part of the alleged pre-planned entrapment of him, to get him to falsely confirm that Mr Singh had shown him [227] on the 23 November and that the claimant had accepted on 23 November that back in 2014/2015 he had seen and accepted the contents of [227]. I.e. that Mr Singh was underhandedly getting him to confirm he knew he had an 8:15pm finish.[74]We do not find this was the case. As above, we find the version of the letter that Mr Singh knew about and was talking about on 23 November was [225]. Mr Singh was not trying to trap the claimant into saying he had an 8:15pm finish. What Mr Singh was doing was exploring his confusion, as part of his investigation, about why the claimant was complaining about the removal of his TBR some years down the line when the letter from Mr Colclough at [225] said the claimant would not be entitled to TBR and late shift allowance. So Mr Singh was referring to that sentence in the letter at [225] and asking the claimant had he not seen it or agreed to it at the time. We accept that this exchange genuinely happened between the claimant Mr Singh on 23 November and that this was why Mr Singh was asking it. This is supported by the fact that even on the claimant’s version of the notes at [253] Mr Singh proceeded to say: “Then why would you now turn around and say that this was wrong, why?” I.e the claimant had just confirmed to Mr Singh that at the time in 2014/15 he had seen that the letter said it was a new duty and did not attract TBR. Mr Singh was therefore asking, which was a logical next step, why after a number of years the claimant was now complaining about its removal. The claimant then went on to explain his reasoning which included that at the time he felt intimidated and fearful of his job and did not want to question Mr Colclough’s decision.[75]On both version of the minutes the claimant also said that at stage one of the grievance he had been wrongly accused of taking TBR when he had never taken it. This was a reference to Ms Maunder’s note.[76]On 26 November 2021 the claimant found [227] in his sick file. As already stated, he believed he was being set up. He became distressed. At one point the claimant seemed to be suggesting that he had a pre-planned meeting with Mr Singh that day, which Mr Singh denied. We do not find there was a pre-planned formal meeting. Instead, the claimant found the letter and then went to Mr Singh and said there was a fraudulent document in his medical file, which Mr Singh then went to look at.[77]The claimant’s note of their subsequent discussion is at [256]. It shows Mr Singh saying he believed it was the original document, with the claimant saying it did not look like the original, and Mr Singh saying there must be some mistake and saying maybe Mr Walker had put it there as the claimant had given Mr Walker a copy. The claimant said he had but not the copy in question ([227]). Mr Singh said he did not know how it had got in there. The claimant said, according to his note: “Neither am I, and this fraudulent document was not shown to me at the stage 2 meeting with you yet you make clear reference to it.” I.e the claimant had by then formed the belief that Mr Singh in his minutes had been referring to [227] but that [227] had not been shown on 23 November. He records Mr Singh saying: “Yes it was shown and this is the original document you gave to Chris Walker?” and the claimant saying “No it wasn’t. I’m telling you that looks like a fraudulent copy of the original, so how can I agree and accept its content that you made reference to, I think somebodies put that in there and is covering something up.” Mr Singh then said: “No not sure, well you amend, sign and return the notes you have back to me.” He then offered the claimant a copy of [227] which was done.[78]We find that Mr Singh was trying to figure out on 26 November what the claimant was talking about. Mr Singh was confused about the claimant saying there was a fraudulent document in the file. On being shown [227], which Mr Singh accepts was on new, crisp white paper, Mr Singh was saying it looked to him like [225]. That is understandable given their overlap in content and he would not have been looking at them side by side. We find that when the claimant was saying to Mr Singh that [227] had not been shown to him on 23 November, and Mr Singh was saying it was shown and it was the original document the claimant gave to Mr Walker, Mr Singh was at that time thinking that they were one and the same document. We do not find, as already set out above, it was part of some entrapment of the claimant on Mr Singh’s part, albeit the claimant was by then himself subjectively thinking that it was entrapment.[79]The claimant then amended the meeting notes of 23 November and gave them to Mr Singh on 29 November [258]. Part of his amendment included an additional section where he set out his concerns about the finding of [227]. His concerns are at [255]. Mr Singh asked the claimant to attend another meeting. Mr Singh wanted to discuss the amendments the claimant had made and ask some further questions. The claimant said he would meet again to go through some information and for Mr Singh to raise any queries about the amended notes, but he would not be rescinding his amended notes. The claimant said he would not agree to an interview [257].[80]Mr Singh initiated some investigations as to what had happened regarding the insertion of [227] into the claimant’s sick file. The file was kept within a locked room. Only a few managers had keys. Mr Singh says that Mr Bowen-Bravery, Work Area Manager, told him that the claimant had requested the claimant’s sick file on 26 November 2021 and that Mr Bowen-Bravery had given the file to the claimant who had taken it away, returning it later. The claimant denies this. We did not hear from Mr Bowen-Bravery. To decide this case, we do not need to make a finding of fact about this. Nor do we need to make a finding as to who inserted [227] into the claimant’s sick file. It is sufficient for us to find, as we do, that it was not done by Mr Singh, and he was not a party to its insertion. We also accept Mr Singh’s evidence that Mr Bowen-Bravery told Mr Singh what Mr Singh has set out. Again, however, that is simply a finding that Mr BowenBravery told Mr Singh the claimant had access to his file. It is not a finding by us that the claimant inserted [227] himself.[81]On 29 November Mr Singh reported the breach to the security help desk. He said that a letter in a sick file had been replaced with a different letter [341]. Mr Singh spoke with a member of the security team who asked Mr Singh to forward on the two versions of the letter, which he did [343 – 345]. Mr Singh also sent an email to managers [342] saying that it looked like there had been a breach and that they should reinforce the message that the sick room keys should not be given out to other individuals and people should not have unsupervised access to files. Mr Singh told us in evidence that the security team said they had been unable to progress the investigation further as there was no CCTV. On 26 November the claimant also wrote a letter of complaint to the CEO found at [357]. He received a reply on 24 December 2021 [359] saying that as there was an ongoing employment tribunal complaint it would be inappropriate to comment on the concerns.[82]Mr Singh’s further meeting with the claimant took place on 2 December 2021. Mr Watts was there as a note taker and his notes are at [330 - 337] Mr Farah was also in attendance with the claimant. The claimant disputes the accuracy of the notes. In cross examination he was taken through parts of them. Some parts he could remember. Other parts he said he could not recall. The claimant on 8 December 2021 wrote to confirm [267] he was not amending or signing the notes as they did not portray the meeting for what it was intended to be, and he felt like he was being entrapped in the meeting. The claimant said it was being done to cover up discrimination and to victimise him. He said he could not understand the new notes as they were confusing, and he was having difficulty with his mental health. The claimant said that at one point he had said he thought he needed a solicitor on the room and that he felt he was on trial for a crime. He said he was feeling mentally unwell and left the meeting feeling confused and dazed and he felt under duress, pressured and harassed by the form of questioning.[83]We are satisfied that the notes at [330-337] represent the gist of what was said at the meeting on 2 December 2021. The claimant has not set out an alternative version of what he says was said. He had a union representative present throughout who would have been in a position to take his own notes, and we have not been provided with an alternative record of events prepared by Mr Farah.[84]We also do not find that Mr Singh conducted the meeting in a way that was oppressive or harassing or was trying to entrap the claimant or to cover any thing up or to (as the claimant alleges) “gas light” the claimant or to interrogate the claimant. The claimant was represented by Mr Farah from the CWU throughout and he did not interject to oppose the style of questioning. We accept that Mr Singh arranged the meeting because he was trying to clarify some matters, including the amendments and comments the claimant had made to the notes from the previous meeting. In particular, Mr Singh referred to [225], asked the claimant to confirm that this was the original letter the claimant had received from Mr Colclough, and was asking the claimant to confirm that he had received and accepted the letter at [225] at the original time it was given by Mr Colclough, which clearly stated the new duty did not attract time bonus or late shift allowance.[85]This was a valid line of questioning given the gap in time between the claimant’s grievance and the original provision of the letter at [225]. We find that what then happened in in the meeting is not what Mr Singh would have anticipated. The claimant and Mr Farah then started saying (which the claimant had not said at the previous meeting) that the claimant had not understood what Mr Colclough was saying to him and that the claimant did not understand the letter at [225] and thought that the new duty would still attract previous allowances. Mr Singh was therefore legitimately asking questions about what the claimant and Mr Farah were now saying in this regard, found at [332 – 334].[86]The claimant complains that Mr Singh was not clear in the meeting about which version of the letter Mr Singh was talking about. He says the minutes refer to “the letter” without differentiating between them or that Mr Singh was switching intermittently between them. We do not find this is the case. We find that during the first part of the meeting Mr Singh was referring to [225] and they looked at it and talked about it together, which Mr Singh then asked the above mentioned questions about. Paragraph 77 of the minutes at [334] also show that [225] is being talked about as the notes refer to Friday prayer time which is only referenced in [225] not [227]. 87. [335] of the minutes then show that the claimant said he wanted to present the letter that was in his file which is different to the one that Mr Singh was presenting i.e. the claimant was saying he wanted to talk about [227]. There was then a dispute between the claimant and Mr Singh about whether in the first meeting Mr Singh had showed the claimant [225] or indeed whether they had discussed a letter at all at that meeting. It culminated in Mr Singh asking Mr Farah whether Mr Farah could recall them discussing a letter and Mr Farah “did not confirm either way.” The claimant then said that Mr Singh was “puzzling my head; I did not discuss a letter and I do not make any reference to a letter in the first meeting.” We do not find here that Mr Singh was seeking to oppress the claimant or entrap him or “gas light” him. Mr Singh was, in our judgement, confused about how the claimant was behaving at the meeting on 2 December. From Mr Singh’s perspective at the earlier meeting Mr Singh had only known about [225] and [225] had been the topic of the discussion. Mr Singh was therefore confused by the fact the claimant now seemed to potentially be saying that there had been no discussion of [225] at all, bearing in mind [225] was the basis for the claimant’s grievance in the first place.[88]The claimant alleges that Mr Singh was looking at a screen and that Mr Singh was being fed questions by the respondent’s legal team. Mr Singh denies this. We accept Mr Singh’s evidence and do not find he was being fed questions by anyone. Mr Singh was asking his own genuine questions, in a situation in which he was confused by what the claimant was saying.[89]In the tribunal’s judgment it is likely that the claimant had become very paranoid by this point in time. As mentioned above, when he saw [227] the claimant subjectively believed that he was being set up to agree that [227] contained his working hours, and believed it was part of an attempt by the respondent to suggest he had been taking TBR all long. The claimant feared he was going to face disciplinary action. We consider it likely that by the time of the meeting on 2 December the claimant’s paranoia about facing disciplinary action had reached such an extent that he was now denying there had ever been a discussion about [225] at the previous meeting and was denying ever having understood that his TBR and late shift allowance had been removed by Mr Colclough when Mr Colclough initially amended the claimant’s duty. That was not a logical stance given the claimant had given over a copy of [225] to Mr Walker as being part of the very basis of his grievance. It is therefore understandable that Mr Singh would have been confused about what the claimant was saying on 2 December.[90]The notes then show that the claimant asked Mr Singh if Mr Singh could explain the modified letter (i.e [227]) or how it got into his personal file and Mr Singh legitimately said that he could not explain it. The conversation then circled back again to the claimant saying again they had not discussed a letter in the last meeting and Mr Singh saying they had. The claimant then said his mental health had declined as there was no consistency and transparency and that he was leaving the meeting.[91]The claimant alleges that Mr Singh was “gas lighting” him by trying to make out that Mr Singh had been referring to [225] all along. In essence the claimant is saying that Mr Singh had originally set out to get the claimant to agree to [227] being the correct version of the letter (so that the respondent could then assert the claimant had been in receipt of TBR throughout). But that when the claimant found [227] and called out the respondent about it, Mr Singh at the meeting on 2 December was then backtracking and pretending that he had been referring to [225] all along, and making out that any confusion lay with the claimant. We do not find, as a matter of fact, that this is what Mr Singh was doing. In the 23 November meeting Mr Singh was referring to [225] and did not know about [227]. When [227] came to light and the claimant was upset about it, Mr Singh told the claimant he would disregard it and refer to [225] in his decision making. At the meeting on 2 December Mr Singh was referring to and discussing [225] again on that basis. As set out above, there was then later on in the meeting on 2 December a discussion about [227] when raised by the claimant. We find that the claimant left the meeting on 2 December due to his own paranoia and his poor mental health, but we do not find that was down to Mr Singh having done anything improper. Both parties drew our attention to paragraph 10.1.8 of the grounds of resistance at [38] where it is admitted that Mr Singh “(at a further meeting on 2 December 2021) referred to a different letter (setting out the Claimant’s hours of work and entitlement to TBR) than the letter referred to on 23 November.” Paragraph 10.1.9 goes on to deny that the use of a different letter by Mr Singh was victimisation of the claimant and says that “Mr Singh simply held no knowledge why the letters within the Claimant’s employee file were different during the two meetings.” These paragraph of the grounds of resistance are perhaps inelegantly worded but we did not find them to be an admission that Mr Singh was on 2 December referring to [227] whether throughout or intermittently in some inappropriate way as the claimant alleges. There was a discussion about [227] at the meeting on 2 December and as 10.1.8 goes on to say, Mr Singh told the claimant at the meeting on 2 December he could not explain why or how the document in the claimant’s file had changed from [225] to [227].[92]Mr Singh gave his decision on 24 January 2022 [338 -340]. In the appeal meeting Mr Farah said that 21 part timers had been picked into new duties which attracted time bonus and he named several other people who he said had their duty changed but were still given time bonus. He said that Mr Colclough and Mr Miah had gone against the local agreement, which meant the claimant had his time bonus removed when others were still in receipt of it. As part of considering the grievance appeal Mr Singh went away and looked at what happened when people had opted for new duties or new duties had been created for them. His finding was that time bonus had been taken off these individuals, which he considered was the correct application of the policy that TBR is not maintained when a new duty is created. However, he also found that on the ground there was inconsistent enforcement of this within the plant. He said that with people on the same shift supposedly finishing at different times it was difficult for managers to keep an eye on who was finishing at what time. But he said that he was going to review this within the plant and ensure that a consistent approach would be applied to TBR.[93]Looking at the claimant in particular Mr Singh then said he considered the duty had been created as a supportive measure for the claimant and that it had been made clear to the claimant at the time of acceptance that the duty would not attract TBR. Mr Singh said it was unfortunate there appeared to be an inconsistent approach to TBR and steps would be taken to ensure TBR is applied consistently going forward, but he was satisfied the original decision that the claimant was not entitled to TBR was the correct one. Mr Singh said, and we accept, that in his decision making he disregarded the version of the letter at [227] (albeit [227] contains the same wording about the loss of TBR and late shift allowance in any event).[94]Mr Singh was obviously aware of the claimant’s grievance as he was dealing with it at stage 3. He says he does not think but is not 100% sure that he was aware the claimant had been through Acas early conciliation. Acas conciliation ended before Mr Singh had any involvement in the appeal so he suspects he would not have been notified at the time and does not recall being told about it. He accepts he was made aware by the respondent’s solicitors of the tribunal claim on 10 December 2021. He disputes that it affected his handling of the claimant’s stage 3 grievance.
Discussion and conclusions
[95]Applying our findings of fact to the issues to be decided our conclusions are as follows. Direct disability discrimination – letter from Ms Maunder dated 2 June 2021[96]As a matter of fact, Ms Maunder did give the claimant a letter dated 2 June (not 24 June) 2021 asserting that the claimant was not entitled to TBR or shift allowance.[97]We do not find, however, that was less favourable treatment of the claimant because of disability. Ms Maunder gave the claimant the letter at [240-241] because she obtained from Mr Colclough a template letter to set out the claimant’s duty pattern following the latest realignment exercise. In obtaining that template letter she noted and thereafter believed from her perspective that in 2015 a new duty set had been created for the claimant which did not attract, from that point on, TBR or late shift allowance. She therefore did not understand or believe that the claimant was entitled to late shift allowance, which had been asserted by Mr Miah in his proposals on behalf of the claimant. When drafting the letter of 2 June, using [225] as a template, she therefore amended the closing line to say “Please not [sic] that as this was a new duty set created back in 2015. This duty does not attract Time Bonus Relief or Late Shift Allowance.”[98]That the wider context of the claimant being sent the original letter at [225] related to the claimant being a disabled person in need of adjustments in the workplace does not mean, in terms of Ms Maunder’s mental processes, that the claimant’s disability either consciously or subconsciously, was a material influence on her decision to say the claimant’s duty does not attract TBR or late shift allowance. We find that it was not. It was simply said and sent because Ms Maunder believed the claimant was not entitled to TBR. The claimant complains that Ms Maunder did not seek advice from HR, and he is right that Ms Maunder did not. However, that again demonstrates that the reason why Ms Maunder acted as she did is because her simple understanding and belief was that the claimant was not entitled to TBR or late shift allowance.[99]We consider that if Ms Maunder had been faced with a similar situation with an individual who was not disabled, then Ms Maunder would have acted in exactly the same way. For example, if Ms Maunder as part of the realignment exercise for a shorter worker week, were faced with an individual working a bespoke shift pattern and duties for other reasons (for example caring responsibilities), and obtained a template letter from a previous manager which said that individual had previously been placed on a new duty set and was not entitled to TBR and late shift allowance, she would have acted in exactly the same way as she did for the claimant.[100]We are satisfied that the claimant’s disability did not play any part in Ms Maunder’s decision making. In our own decision making we preferred to concentrate on the reason why Ms Maunder acted as she did rather than an analysis focused upon the burden of proof. The respondent argued the burden did not shift and the claimant argued it did, referring to the fact there were others who had changed duty but continued to receive TBR. We do not know a great deal about the other individuals referred to but, it seemed to us that this would amount to a difference in treatment and a difference in status which by themselves without “something else” would be insufficient to shift the burden to the respondent. However, in any event, if the burden were to shift, we have concluded that disability played no part in Ms Maunder’s decision making. Victimisation[101]The respondent accepts that the claimant’s grievance, his engagement in Acas early conciliation, and the presentation of his tribunal claim constitute protected acts. Mr Walker not removing himself as grievance manager[102]Mr Walker should not have been the stage 2 grievance manager. It was against policy as he was a lower grade manager than the manager he was investigating. We have found that Mr Walker was aware of this and checked with Mr Press who told him he could continue as he was on temporary promotion to shift manager. That was incorrect as the grievance involved Mr Colclough who was a grade 9, which is two grades above the grade Mr Walker was at on temporary promotion.[103]We have found that Mr Walker continued to act as stage 2 grievance manager because he had been told by Mr Press as Cardiff Mail Centre Manager that he could still handle the grievance. That was against the written policy, however, we accept it was genuinely what happened and why Mr Walker continued as stage 2 grievance manager.[104]The respondent had not received the claimant’s employment tribunal claim at the time and therefore Mr Walker could not have known about it, and it could not have been a material influence on his decision to continue to be stage 2 grievance manager. He did know about the claimant’s grievance and from 10 September 2021 onwards knew the claimant was going through Acas early conciliation. We do not, however, find that these things influenced at all Mr Walker’s decision to continue to be the stage 2 grievance manager. They were simply part of the wider context. Mr Walker did what he did because he took what Mr Press, as a senior manager, told him at face value. It was not because he was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination. Mr Walker not sharing his meeting notes with the claimant[105]Mr Walker did not share the notes of his meeting with the claimant for the claimant to approve or correct or comment upon. This is contrary to the grievance policy which says: “The manager should share a summary of the meeting with the employee for their comments…”[106]We have found that Mr Walker failed to do this because he was not aware that he should do so. He had not been back and re-read the grievance policy, in turn in part because of the work pressures Mr Walker was facing at the time. He had not dealt with a formal grievance before so had no prior knowledge or experience to work upon. It does not appear to the tribunal that he was being guided in any meaningful way by an experienced HR professional.[107]It was poor practice and deprived the claimant of the opportunity to correct and comment on the notes, but we find that this is genuinely why Mr Walker failed to do what he should have done.[108]The respondent had not received the claimant’s employment tribunal claim at the time and therefore Mr Walker could not have known about it. The tribunal claim itself therefore could not have been a material influence on Mr Walker failing to send the meeting notes to the claimant. Mr Walker did know about the claimant’s grievance and from 10 September 2021 onwards (the meeting itself having taken place on 3 September) knew the find that these things influenced at all Mr Walker not sending the claimant the meeting minutes. They were simply part of the wider context. Mr Walker did what he did (or failed to do what he should have done) because of the poor practice we have identified. It was not because he was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination or that he was trying to supress evidence or supress the claimant’s complaint because it was a complaint of discrimination in general, or a complaint of discrimination against Mr Colclough. Mr Walker not sharing other witness statements or interview notes or other evidence gathered with the claimant[109]Mr Walker did not share with the claimant other witness statements or witness interview notes or other evidenced gathered with the claimant before he made his decision about the claimant’s grievance. (Indeed, the claimant did not see the record of Mr Walker’s meeting with Mr Miah and Mr Z Khan until part way through this tribunal hearing, albeit the failure to disclose during the litigation process (as opposed to the grievance process) lay in the hands of the respondent’s solicitors rather than Mr Walker).[110]In failing to disclose the records and information during the grievance process, Mr Walker deprived the claimant of the ability to comment. For example, the claimant had no opportunity to point out to Mr Walker questions that had not been asked of the witnesses that he considered relevant, such as not specifically asking Mr Miah about the removal of the claimant’s TBR. This was poor practice and contrary to the grievance policy which says: “Where further investigations are completed, relevant information should be shared with the employee.”[111]We have found that Mr Walker failed to do so because he believed that these notes should be shared with the claimant. He thought that he was not allowed to share notes of someone else’s interview with another employee. Again, Mr Walker did not have prior experience to fall back on and did not check the grievance policy or with HR. Again, in part, in turn this was due to the work pressures Mr Walker was facing at the time.[112]It was poor practice, but we accept that this is genuinely why Mr Walker failed to do what he should have done. Again, Mr Walker did know about the claimant’s grievance and from 10 September 2021 onwards knew the find that these things influenced at all Mr Walker’s failure to share the records and documents with the claimant. The grievance and Acas early conciliation were simply part of the wider context. Mr Walker did what he did (or failed to do what he should have done) because of the poor practice we have identified. It was not because he was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination or that he was trying to supress evidence or supress the claimant’s complaint because it was a complaint of discrimination in general, or a complaint of discrimination against Mr Colclough. Mr Walker did not inform the claimant of his right of appeal[113]Mr Walker did not inform the claimant of his right of appeal. This is contrary to the grievance policy which requires the manager, when giving the decision in writing, to provide information regarding next steps if the employee is not satisfied with the outcome. The claimant contacted HR directly himself who put the appeal in train for him.[114]We have found that Mr Walker had obtained from HR a template to use for his decision letter. Bizarrely this did not include mention of the right of appeal and Mr Walker did not notice this and he had not checked the grievance policy. Again, in part we accept this was due to his lack of experience in dealing with formal grievances and the pressures on Mr Walker at the time together with his lack of access to internal systems.[115]It was poor practice, but we accept that this is genuinely why Mr Walker failed to do what he should have done. Again, Mr Walker did know about the claimant’s grievance and from 10 September 2021 onwards knew the find that these things influenced at all Mr Walker’s failure to include within his grievance decision letter notification of the right of appeal. The grievance and Acas early conciliation were simply part of the wider context. Mr Walker did what he did (or failed to do what he should have done) because of the poor practice we have identified. It was not because he was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination or seeking to supress the claimant’s complaint because it was a complaint of discrimination in general, or a complaint of discrimination against Mr Colclough. Mr Walker exceeded the 28 days allowed under policy in concluding the grievance, without explanation for the delay until the claimant contacted HR[116]The grievance policy states that the resolution with the manager should be completed within 5 to 28 calendar days. Mr Walker exceeded this. Mr Walker also did not stay in regular contact with the claimant about the delays. We accept these failings happened for a variety of reasons that included delays in meeting Ms Maunder due to her being absent on annual leave, delay in obtaining occupational health records from archive (remedied by the claimant providing his own copy), and in seeking advice. We also accept that it was due to the workplace pressures Mr Walker was facing at the time in inducting a large number of new staff, working across 3 shift patterns and two sites, and without access to internal resources.[117]Again, Mr Walker did know about the claimant’s grievance and from 10 September 2021 onwards knew the claimant was going through Acas early conciliation. We do not, however, find that these things influenced at all the delays in the process. The grievance and Acas early conciliation were simply part of the wider context. The delay was for the reasons given and was not because Mr Walker was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination or seeking to supress the claimant’s complaint because it was a complaint of discrimination in general, or a complaint of discrimination against Mr Colclough. The claimant suggested to Mr Walker in cross examination that if Mr Walker had been dealing with a complaint not about discrimination but, for example, a simple annual leave dispute, then he would have handled it far more expeditiously and in general would have complied with the grievance policy requirements. Mr Walker denied this. We do not consider that Mr Walker would have dealt with such a complaint more expeditiously or in a more compliant manner if it was a grievance that was not about discrimination. We do not find that Mr Walker was deliberately delaying the progress of this grievance because it was a complaint of discrimination or a complaint of discrimination against Mr Colclough or that he was trying to “time out” the claimant from bringing an employment tribunal complaint. Mr Walker did not uphold the claimant’s grievance and concluded an error had been made in reinstating the claimant’s TBR. Did Mr Walker threaten to revoke the claimant’s TBR again?[118]We have found that Mr Walker did not uphold the claimant’s grievance because he genuinely believed that the claimant had been given a new duty in 2015 with the support of the CWU and that the claimant had clearly been told at the time that it would not attract TBR or late shift allowance and that this was in accordance with time bonus criteria. He considered the claimant had been supported with adjustments in the workplace that included the new duty pattern which had in turn improved the claimant’s attendance. He also considered it was also a complaint being raised by the claimant some 6 years after the event.[119]This was Mr Walker’s genuine, independent decision, and was not because Mr Walker was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination or seeking to supress the claimant’s complaint because it was a complaint of discrimination in general, or a complaint of discrimination against Mr Colclough. It is important to bear in mind here that what we have before us is a complaint of victimisation in not upholding the claimant’s grievance. It is not, for example a complaint of discrimination because of something arising in consequence of disability, or an indirect discrimination complaint where we would have to potentially engage with questions of objective justification.[120]Mr Walker did conclude an error had been made in reinstating the claimant’s TBR. We do not find that he “threatened” to revoke the claimant’s TBR in the sense of Mr Walker saying something that was inappropriate or oppressive. What he did was make a recommendation or voice his opinion that that decision to reinstate the claimant’s TBR should been revoked because he considered the wrong decision had been made to reinstate it. We are satisfied that Mr Walker genuinely believed that reinstating the claimants TBR had been a wrong management decision. He understood Mr Colclough had directed Ms Maunder to reinstate it because it was only 15 minutes – i.e. it was not worth the management hassle. Mr Walker believed that was not a proper basis on which managers should make this kind of decision; he termed it “flippant.” He therefore recommended its removal. Again, that was his genuine, independent viewpoint. Mr Walker did not say this because he was seeking to disadvantage the claimant because the claimant had made a complaint of discrimination or a complaint of discrimination against Mr Colclough. In fact, Mr Walker in making his recommendation was expressly contradicting Mr Colclough’s earlier direction to reinstate the TBR.[121]We have above addressed the claimant’s victimisation complaints that involve Mr Walker individually. However, in our deliberations we also considered the complaints holistically. In particular, the claimant’s position was that one error by Mr Walker could be a mistake, two could reflect incompetence but that given there were 4 or 5 it must mean that Mr Walker was doing it on purpose. The claimant also considers that Mr Walker was engaged in a practice, together with other individuals such as Ms Maunder and Mr Singh to suppress the claimant’s complaint and protect and cover up for Mr Colclough. He considers that there was an awareness amongst managers that Mr Colclough’s original decision was discriminatory and that they were covering this up and covering for Mr Colclough. The claimant also believes that Mr Walker was a party to a plan to set him up to say that he had received [227] at the time, so that the claimant could potentially be accused of having received TBR throughout. He points to the fact that in the notes of [244] Mr Colcough is recorded as saying “I also provided a letter to Simon Ali with all the new start finish times and location of work.” The claimant sees the reference to “location” of work as meaning the address given on [227] (which is not on [225]) of the Cardiff Mail Centre. The claimant believes the suppression of his complaint is also demonstrated by Mr Walker not asking searching questions of those he interviewed.[122]We do not find that Mr Walker was engaged in any such conspiracy with Mr Colclough or others. Mr Walker said he understood the reference to “location” as being the duties the claimant was undertaking (for example, on reception or dealing with parcels). We accept that was his understanding. We also accept, as already stated that Mr Walker undertook his grievance duties independently and in good faith, albeit of course the various errors identified were made. His independence of mind is demonstrated by the fact he gave the opinion that Mr Colclough had made the wrong decision in directing that the claimant’s TBR should be reinstated. We find that the number of errors made by Mr Walker were (whilst regrettable) simply that and down to the reasons that we have set out above, and not for some sinister purpose of seeking to supress or minimise the claimant’s discrimination complaint in general or because it was against Mr Colclough. Mr Walker was not engaged in some plan to set up the claimant as having received [227] at the time. We accept that Mr Walker could have asked some better quality questions. He could have, for example, specifically asked Mr Miah direct questions about the removal of TBR and late shift allowance. But we accept Mr Walker’s account, and his own self reflection that he showed in cross examination, that he simply thought at the time that he was asking the questions he needed to ask at the time to deal with the claimant’s grievance. At the time he thought he was doing his best. We do not find he was engaged in a cover up.[123]We would also make the general observations for the benefit of the respondent and in particular their HR department, that it appeared to us that Mr Walker had been poorly served by HR. He was a manager who had not dealt with a formal grievance before and was under substantial workplace pressures with a lack of access to resources. More could have been done by HR to ensure that Mr Walker understood the process he should be following such as sharing notes of meetings, keeping an eye on timescales and updating the claimant, making sure Mr Walker was asking all the right questions, and ensuring that Mr Walker used a template letter that properly set out the claimant’s right of appeal. On 23 November 2021 did Mr Singh ask the claimant questions about a different version of the letter given to the claimant by Mr Colclough in December 2014/January 2015 which the claimant describes as “fraudulent and fictitious”? Were Mr Singh’s questions pre-loaded, incriminating, trying to cover up discrimination and make the claimant out to be dishonest by asserting that the claimant had been in receipt of TBR throughout?[124]This is an allegation that on 23 November 2021 Mr Singh was asking the claimant questions about [227] and not [225]. We have not made a finding of fact that this was the case. Instead, our finding of fact is that Mr Singh only knew about [225] and was asking the claimant questions about [225]. Mr Singh was therefore not on 23 November 2021 asking the claimant questions that were pre-loaded, incriminating, trying to cover up discrimination, or to make the claimant out to be dishonest by asserting the claimant had been in receipt of TBR throughout. We have found Mr Singh was asking the claimant genuine, independent questions as part of the grievance stage 3 process. We do not find that Mr Singh was involved whether individually or in concert with others such as Mr Colclough, Ms Maunder, and Mr Walker to cover up discrimination or to set the claimant up to face an allegation that he had been in receipt of TBR throughout. Did Mr Singh on 2 December 2021 then use the original version of Mr Colclough’s document and make it out to be the version he had been referring to all along. Did Mr Singh engage in gaslighting the claimant, detracting from the document and manipulating the facts surrounding it. Did Mr Singh’s conduct cause the claimant to eventually leave the meeting? Was Mr Singh being fed questions by the respondent’s legal team?[125]Our findings of fact are that Mr Singh did on 2 December 2021 use [225] as the main basis for discussion and it was on the basis that it was the document Mr Singh had been referring to all along. However, that was genuinely the position and was not anything inappropriate or sinister or designed to entrap the claimant or gaslight the claimant or set the claimant up in some way or to detract from a document or manipulate the facts surrounding it. Mr Singh on 2 December 2021 was largely referring to [225] because that was the document Mr Singh had been referring to on 23 November and was the only version Mr Singh had known about on 23 November. Mr Singh was also referring to it because he had told the claimant that was the version he would use for deciding the grievance given the concerns about the provenance of [227].[126]We have not found that Mr Singh was being fed questions by the respondent’s legal team.[127]The claimant by 2 December 2021 had become highly paranoid. He subjectively thought that Mr Singh had previously being trying to entrap him and get him to agree he had received [227] at the original time. He thought the respondent was trying to set him up to discipline him by alleging the claimant had been taking TBR throughout. Mr Singh was not in fact engaged in this entrapment whether by himself or in conjunction with others. But the claimant’s belief and paranoia meant that by 2 December 2021 the claimant engaged with Mr Singh’s questions by now asserting that he had never understood he was no longer entitled to TBR and late shift allowance when Mr Colclough gave him the original letter and by asserting that on 23 November 2021 there had never been any discussion about any letter from Mr Colclough. The claimant’s behaviour was confusing Mr Singh and Mr Singh was engaged in asking genuine questions about what the claimant was saying so that he could deal with the claimant’s grievance. The claimant’s paranoia and poor mental health led the claimant to leave the meeting but that was not through the fault of Mr Singh.[128]Mr Singh’s conduct on 2 December was not victimising the claimant because the claimant had submitted a grievance about discrimination. We accept it is likely that at that time Mr Singh did not now about early conciliation or the claimant’s tribunal claim being lodged, but even if he did, we would not find that Mr Singh was victimising the claimant for these things. Mr Singh was genuinely engaged with addressing the claimant’s grievance. He was not, as already said, engaging in conduct to protect Mr Colclough from a complaint of discrimination by the claimant or as part of that to set the claimant up, or to cover up a previously failed attempt to set the claimant up. Did Mr Singh not conduct a fair investigation?[129]This is a victimisation complaint and not case about general investigation standards. We are satisfied that Mr Singh was genuinely engaged in addressing the claimant’s grievance at stage 3 in good faith and conducted it in a way he considered appropriate. Mr Singh did not adopt some investigation standard or process as a means to disadvantage the claimant because the claimant had brought a grievance about discrimination or there was an anticipation that an employment tribunal claim would be brought or because he was seeking to supress a discrimination complaint whether in general or because it involved Mr Colclough. Mr Singh did not uphold the claimant’s grievance appeal and said the revocation of TBR was the correct decision and that the altered document was not relevant[130]Mr Singh said in his decision [227] had no bearing on the outcome of the grievance because he worked from [225] because the claimant said [225] was the correct version received at the time. Moreover, Mr Singh’s interest in [225] was about the statement about the claimant not being entitled to TBR and late shift allowance which was in identical wording in [227] in any event. He was not seeking to disadvantage the claimant because the claimant had brought a grievance and had brought employment tribunal proceedings. Mr Singh was trying to ensure he decided the grievance on the basis of the document which the claimant said was the genuine one. Mr Singh did disregard [227] for the purpose of the grievance process but it was not because Mr Singh had been caught out in previously trying to get the claimant to agree [227] was the correct version or to detract from what had happened with [227]. He was just working from the version the claimant said was the correct one.[131]Mr Singh did not uphold the claimant’s grievance because he genuinely believed that the correct decision had been made to remove the claimant’s entitlement to TBR when the claimant moved duty. He believed the claimant had moved to a new duty and under TBR policy where there was a change in duties the claimant would not be entitled to it. Mr Singh believed that this had been communicated to the claimant at the time and that some 6 years had passed since the events in question. Mr Singh accepted that there had been inconsistent enforcement of decisions to remove TBR within the plant on a change of duty, but he did not consider that such inconsistency meant an improper decision had been made in the first instance. Instead, Mr Singh’s thinking was that the inconsistencies should be corrected in the plant going forward.[132]As above in relation to our analysis of Mr Walker’s decision making, this is a victimisation complaint and not a complaint of for example, discrimination arising from disability. We are therefore not engaged in examining whether the decision can be objectively justified or the justification of the respondent’s wider TBR and late shift allowance policy. Mr Singh, in deciding not to uphold the claimant’s grievance, was not subjecting the claimant to a detriment because the claimant had done a protected act in complaining about disability discrimination. Mr Singh was not seeking to protect the respondent or Mr Colclough from a complaint about discrimination or to cover up for an alleged earlier discriminatory act by Mr Colclough.[133]Again, in looking at the individual victimisation complaints involving Mr Singh we did also take a step back and look at the wider picture. We were satisfied in general on the evidence before us that Mr Singh whether individually or in concert with others was not engaging in conduct to subject the claimant to a detriment because the claimant had done a protected act in complaining about victimisation, or to set the claimant up, or to cover up any earlier actions by himself or by others. Mr Singh was genuinely engaged in the grievance process.[134]For all these reasons the claimant’s complaints of direct disability discrimination and victimisation are unsuccessful and are dismissed.