Mr S Weed v Cathays and Central Youth Community Project and others: 1601681/2022

EMPLOYMENT TRIBUNALS

Case No 1601681/2022

Between

Mr S WeedClaimant

Cathays and Central Youth Community Project and othersRespondent

Before

Employment Judge S Jenkins

In person for claimant

Mr G Pollitt (instructed by Counsel) for respondent

Date 22 August 2024

JUDGMENT

The Respondent's application, to strike out the Claimant's claim on the basis that the manner in which he has conducted the proceedings has been scandalous, unreasonable or vexatious, and/or that it is no longer possible to have a fair hearing in respect of the claim, is refused.

REASONS

[1]The Respondents made an application to strike out the Claimant's claim by way of an email from their representative dated 17 June 2024. The essence of the application was set out in a witness statement with exhibits, attached to the email, of Mr Damian Phillips, the solicitor at the Respondent's representative with conduct of these proceedings.

[2]The core of that application was that, at a preliminary hearing before Employment Judge Harfield on 1 December 2023, the Claimant had effectively accused Mr Phillips of lying about the fact of, and/or the content of, a discussion, the Claimant and Mr Phillips had had by telephone on 21 November 2023. That had led Judge Harfield to include, in her preliminary hearing summary, a reminder that parties to tribunal cases have duties to assist the Employment Tribunal to achieve the overriding objective of dealing with cases fairly and justly, and also to co-operate with each other and the Tribunal, which includes a duty to be professional and courteous in their dealings with each other.

[3]Judge Harfield further noted that ultimately a Tribunal has power to strike out a claim or response, and suggested that the parties would be best served by concentrating their attention on preparing their respective cases for the final hearing, whilst remaining polite and co-operating with each other and the Tribunal, to get the case procedurally ready for that final

[4]Despite that, the Claimant made several further references to Mr Phillips's assertion regarding the call. In an email sent to Mr Phillips on 1 December 2023, the day the preliminary hearing took place, the Claimant noted that Mr Phillips should "cease and desist [his] fabrication of the phone call that happened". Then, on 13 February 2024, in an email sent by the Claimant to Mr Phillips in advance of a further preliminary hearing before Employment Judge Moore on 16 February 2024, the Claimant said, "See you on Friday. This time don't lie to the courts and fabricate stories.".

[5]Judge Moore also noted, in her summary of the preliminary hearing on 16 February 2024, that the Claimant had said that he had made a complaint about Mr Phillips to the Solicitors Regulation Authority (“SRA”). The Claimant is subsequently understood to have raised a complaint about Employment Judge Moore herself, and also about Regional Employment Judge Davies' refusal to transfer the Claimant's case to a different region.

[6]In relation to Mr Phillips, the Claimant made further, similar, comments to or about him in emails sent to him on 26 February 2024 and on two occasions on 9 May 2020, and also in an email to the Tribunal on that day. He again made similar comments to Mr Phillips in an email on 14 May 2024, and about him, in an email to the Tribunal on 18 May 2024, where he asserted that Mr Phillips had made "fake/false and fictitious statement relating to the "alleged" telephone call we had". Further similar emails were sent by the Claimant to Mr Phillips on 28 May 2024 and 5 June 2024, and to the Employment Tribunal on 7 June 2024.

[7]In several of the emails sent to Mr Phillips, the Claimant indicated an intention to pursue legal proceedings against him, although the basis of any such claim is not clear. He made similar comments during the course of this preliminary hearing. Also, as I have noted, the Claimant has also indicated that he would refer Mr Phillips to the SRA, although it is not clear if he has done so.

Issues

[8]The notice of this preliminary hearing indicated that the Judge would decide the following issues: "Should the claim or any part of it be struck out because the claimant has conducted the proceedings in a scandalous, unreasonable, a vexatious way? "Should the claim or any part of it be struck out because the Tribunal considers that it is no longer possible to have a fair hearing of it?"

[9]Those issues boiled down to three essential questions I needed to consider: 1. Whether the conduct asserted to have taken place occurred in fact, on the balance of probability? 2. If so, whether that was conduct which was scandalous, unreasonable or vexatious 3. If so, whether it was nevertheless still possible for a fair hearing to take place? The third point rather elides the two alternative strands of the Respondent's application, i.e., that strike-out should arise due to the scandalous, unreasonable or vexatious conduct on the one hand, or because it is no longer possible to have a fair hearing on the other hand, but the guidance from the appellate courts in relation to the assessment of conduct would require me to consider the potential for there to be a fair trial as part of my assessment of the Claimant's conduct in any event.

Law

[10]The power to strike out employment tribunal claims lies in Rule 37 of the Employment Tribunals Rules of Procedure. That provides, relevantly to the application made by the Respondents, as follows: “(1) At any stage of the proceedings, … on the application of a party, a Tribunal may strike out all or part of a claim … on any of the following grounds. – (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious; … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim ….”

[11]Sub-paragraph (2) of Rule 37 then provides that a claim may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a

[12]In terms of the constituent elements of Rule 37(1)(b), the Court of Appeal noted, in Bennett -v- Southwark London Borough Council

[2002] ICR 881

, that "scandalous" is not a synonym for "shocking", but instead, as noted by Sedley LJ at paragraph 27, embraces "two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process.".

[13]"Vexatious" appears only to have been considered in the context of the vexatiousness of a claim itself rather than the way in which it was conducted. In that regard. It was described in ET Marler Ltd -v- Robinson

[1974] ICR 72

, as the bringing of a "hopeless claim, not with any expectation of recovering compensation, but out of spite to harass his employers, or for some other improper motive.".

[14]"Unreasonable" has been understood from, the unreported case of Dyer -v- Secretary of State for Employment (UKEAT/ 183/83), as to be construed by reference to its normal English construction, and is not to be interpreted as if it means something similar to vexatious.

[15]The appellate courts have made very clear however, that where a Tribunal reaches a conclusion that conduct has been scandalous, unreasonable or vexatious, it must still consider whether a fair trial is still possible. That was noted by the Employment Appeal Tribunal (“EAT”) in De Keyser Ltd -v- Wilson

[2001] IRLR 324

, and then affirmed by the EAT in Bolch -v- Chipman

[2004] IRLR 140

, where, at paragraph 55, the Appeal Tribunal noted the steps that a Tribunal must ordinarily take when determining whether to make a strike out order as follows: 1. Before making a strike-out order, an employment judge must find that a party or his or her representative has behaved scandalously, unreasonably or vexatiously when conducting the proceedings. 2. Once such a finding has been made, the judge must consider whether a fair trial is still possible, as, save in exceptional circumstances a striking-out order is not regarded simply as a punishment. If a fair trial is still possible, the case should be permitted to proceed. 3. Even if the conclusion is reached that a fair trial is unachievable, the tribunal will still need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty, for example by making a costs or preparation order against the party concerned, rather than by striking out the claim or response,

[16]The Court of Appeal provided additional guidance on strike-out applications in the case of James -v- Blockbuster Entertainment Ltd

2006 IRLR 630

, where Sedley LJ said, at paragraph 18: "The first object of any system of justice is to get triable cases tried. … There can be no doubt … that Mr James has been difficult, querulous and uncooperative in many respects. … But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably."

Findings

[17]The findings of fact I made relevant to the issues I had to decide, reached on the balance of probability where there was any dispute, were as follows.

[18]Much of the factual background to the Respondents’ application has already been recited in my chronology of events above. Indeed, all of the factual matters in this case, bar the initial telephone discussion between the Claimant and Mr Phillips, and the discussion of that telephone discussion before Judge Harfield, was contained in emails sent by the Claimant, about which there could be no dispute as to what was said. My focus therefore was on the discussion on 21 November 2023 between the Claimant and Mr Phillips, and on the subsequent discussion before Judge Harfield on 1 December 2023.

[19]With regard to the former, the Claimant's position has slightly varied. Some of his references to the call seemed to indicate that he considered that it simply had not taken place. However, in a later email to Mr Phillips on 17 June 2024, the Claimant indicated that he had never said that the call had not happened, and that was his position before me during the course of this

[20]Mr Phillips, as an exhibit to his witness statement, provided a copy of his mobile phone call log for 21 November 2023, which showed that he had received a call from the Claimant at 08:32, which he had not answered. It then showed that Mr Phillips had attempted to call the Claimant’s number, also at 08:32, with the call being timed at seven seconds, indicating that it either could not be connected or was not answered. There was then a further call to the Claimant's number, again at 08:32, with the call being timed at three minutes, which indicated that a discussion had taken place.

[21]Ultimately, despite, as I have noted, the Claimant's approach to the call being somewhat equivocal, Mr Phillips’ call log appeared broadly to accord with the Claimant's perspective of the call, as he accepted before me during this hearing that there had been a call of something approaching three minutes in length.

[22]In relation to the content of the call, Mr Phillips produced a nearcontemporaneous file note of the conversation, made later on the same day. In that, he noted that the discussion with the Claimant had covered possible settlement, the evidence that the Claimant had which he considered would support his case against the Respondents, and, in response to a point Mr Phillips made that it would be helpful for the Claimant if he obtained some legal advice, an indication that the Claimant had already obtained that advice. Mr Phillips' note of the call indicates that it concluded by the Claimant, saying that he would take Mr Phillips to court "once this was done", that Mr Phillips then queried what the Claimant would take him to court for, and that the Claimant then hung up on the call.

[23]I was satisfied from the documentary evidence provided that the content of the conversation had taken place as Mr Phillips described it. His account was also consistent with his reason for bringing the discussion to the attention of Judge Harfield, i.e. that the Claimant had indicated that he would take Mr Phillips to court, which I could understand Mr Phillips would have found disturbing.

[24]Turning to the discussion before Judge Harfield, the Claimant was adamant that the recording of the hearing would vindicate his perspective of events, i.e. that he had not accused Mr Phillips of effectively lying in his description of the call. However, despite having been provided with the appropriate form to apply for a transcription of the hearing by the Employment Tribunal staff on 21 May 2024, which had been provided on the appropriate yellow background to take into account the Claimant's needs, the Claimant did not return the form until he sent an email to the Employment Tribunal during the course of this hearing, at 11:30am. No transcription of the hearing before Judge Harfield was therefore before me.

[25]Assessing the evidence as best I could, I was satisfied that the Claimant had effectively accused Mr Phillips of lying about the telephone discussion on 21 November 2023. I doubted that Judge Harfield would have phrased her preliminary hearing summary in the way that she did if a matter of some importance had not been raised, which led to Judge Harfield, noting that she had had a discussion about the need, notwithstanding the Claimant's status as a litigant in person, to separate out a lawyer such as Mr Phillips from the Claimant that he was representing or that client's case.

[26]I further noted that the Claimant, later on the same day of the preliminary hearing, had sent an email to Mr Phillips, asking him to "cease and desist [his] fabrication of the phone call", and similarly referred to an assertion that Mr Phillips had fabricated his record of the call in several subsequent emails. That would therefore be entirely consistent with Mr Phillips' contention that the Claimant had stated before Judge Harfield that Mr Phillips had lied in his description of the call on 21 November 2023, when he said that the Claimant had said that he would take Mr Phillips to court. That is again something that the Claimant has referenced on several occasions, and indeed referenced again during the course of this hearing.

Conclusions

[27]Taking my findings and the applicable legal principles into account, I had little difficulty in concluding that the Claimant's conduct of these proceedings had been scandalous and unreasonable. That was in the form of his threat to Mr Phillips to pursue litigation against him, and his continued assertions that Mr Phillips had lied in the hearing before Judge Harfield when referencing that threat. Indeed, whilst this preliminary hearing had been adjourned for me to reach my decision on the Respondents’ application, it was brought to my attention by the Respondents’ representative that the Claimant had made further references to the issue in his witness statement for the final hearing, to which access had only been gained by the Respondents during this hearing, following the provision by the Claimant of the appropriate password.

[28]In my view, the assertion, or even the implication, that Mr Phillips had lied was misplaced, and was without foundation. The allegation was therefore, one which was abusive of the other side's representative. It was also irrelevant to the issues to be addressed at the final hearing. In that regard, I noted that even if Mr Phillips had been wrong about what the Claimant had said to him during the discussion on 21 November 2023, and, to be clear, I do not consider that he was, that would have had no bearing at all on the Claimant's case against the Respondents.

[29]As well as concluding that the Claimant's conduct was scandalous, I also considered that it was unreasonable in the ordinary sense of that word.

[30]However, I did not get the sense that the Claimant was being vexatious, or in any way vindictive, in making the allegation that he did, and in repeating it. I noted that the Claimant suffers from a visual processing disorder, also known as a sensory processing disorder, and the impression I gained from him today, and from reading the documents he has produced, was of someone who can get inappropriately drawn into a focus on perceived wrongdoing, which is fundamentally misplaced, both in relation to what actually happened, and to the actual relevance of what happened to the claims being brought in any event. I noted in that regard the Claimant's consistent references to considering that Mr Phillips lied when he raised with Judge Harfield the threat the Claimant had made to take legal proceedings against him, and the Claimant’s repeated indications, reiterated before me during this hearing, to do precisely that without, as I have noted, appearing to have any legal basis to do so.

[31]Having concluded that he Claimant had conducted proceedings scandalously and unreasonably, I then needed to consider whether a strike out order was appropriate, i.e. whether a fair trial could still be held. I closely considered Mr Pollitt’s submissions on behalf of the Respondents which focused on two areas. He first noted what he described as the Claimant's proven willingness to be willing to lie to the Tribunal in relation to his exchanges with Mr Phillips, and contended that that must call into question his reliability as a witness at the final hearing.

[32]Mr Pollitt also noted the complaints that the Claimant had made about Employment Judge Moore and Regional Employment Judge Davies, asking how any judge could be expected to hear the Claimant's claims without fear of reprisal if he did not succeed.

[33]As far as the former point was concerned, I bore in mind my conclusion that the Claimant appeared to me to be someone who has consistently operated under a misapprehension about the events that had taken place, and also to be someone who had inappropriately inflated the relevance and importance of the events, whether they in fact happened as described or not. As I have noted, he is someone who suffers from a processing disorder, and I took that into account as a possible explanation for his behaviour.

[34]In addition to that, the Employment Tribunal at the final hearing will be able to consider the Claimant's evidence in relation to his claims against the Respondents and the events that are alleged to have happened in the workplace, and the Respondents’ representative may make submissions about the potential lack of reliability of that evidence. I did not consider that the Tribunal at the final hearing would be under any material difficulty in undertaking its usual task of weighing the evidence it reads and hears, taking into account the parties’ submissions, and then in reaching reasoned conclusions in respect of the claims.

[35]Finally, with regard to Mr Pollitt's second point, I noted that the judicial oath requires judges to do right by all manner of people, "without fear or favour". Making decisions without fear of reprisal from a party if the decision is not how they want it to be, simply goes with the territory of being a judge or forming part of an employment tribunal. It would not justify a conclusion that a fair trial could not be held.

[36]Overall, and despite my conclusions about the way the Claimant has conducted elements of his case, I did not consider that a fair trial could not be held of the Claimant's claims against the Respondents. I therefore concluded that his claims should not be struck out.

Introduction

[1]This final hearing was conducted as an in person hearing. The first day was spent on case management. Some time was spent explaining to the Claimant how the hearing would proceed, in terms of order of witnesses and questioning of witnesses and clarifying that this was a liability only hearing and that remedy would be heard at a later date if the Claimant was successful on all or any of his claims. Bundle

[2]We had lengthy discussion regarding the bundle that had been prepared. The Tribunal had been provided with an electronic bundle of 783 pages (the “Bundle”). The Claimant did not have with him a complete hard copy of the bundle, only a hard copy of a 500+page bundle of documents that he explained had been provided to him in June 2024. He claimed that nothing had been sent to him since that date by the Respondent.

[3]It took some time to understand how this state of affairs had arisen, particularly as management of a final hearing bundle had been the subject of a case management order by Judge Moore (on 4 June 2024) when she had ordered that the copy of the bundle, sent on 12 June 2024 and made available to the Claimant electronically, would stand as the trial bundle and if the Claimant chose not to be present for delivery or arrange alternative delivery or not access the electronic bundle, this was a matter for the Claimant.

[4]The bundle had again been addressed by Judge Jenkins at the last hearing on 5 July 2024 (case management order §3-7) Whilst neither of these orders appeared in the Bundle, the Tribunal did have access to such orders. At that time, it appeared that the Claimant had been proposing that some additional documents be added to the final hearing bundle that had been provided to him in June, the additional material being transcripts of two recordings: one a voice message in the Claimant’s possession and the other a recording of the meeting in which the Claimant had been suspended. Despite questioning their relevance, the Respondent had not objected to their inclusion and Judge Jenkins had directed that a copy be provided to the Claimant of the suspension meeting recording and that thereafter the Claimant was to provide a transcript.

[5]Despite saying that he had received nothing from the Respondent since June, the Claimant then confirmed that he had received the recording of the suspension meeting. He now says that he could not listen that recording and has been unable to prepare a transcript. The Claimant informed the Tribunal that only the last 2-3 minutes of the recording of the suspension meeting was relevant in any event, as this included the comment allegedly made by one of the Respondent’s trustees at that suspension meeting, to the Claimant of ‘when you come back or if you come back’ (List of Issues – Unfair dismissal - §2.3.9).

[6]This was eventually resolved by directing the parties, whilst the Tribunal continued reading, to listen to the recording together, when on return it was agreed that the recording was inaudible. The Respondent conceded however that the critical part of the recording was no longer required as the Respondent had conceded what had been said at the suspension meeting. There was therefore no requirement for such a transcript to be provided and included in the Bundle.

[7]The Tribunal still had to resolve the difference in the size of the June bundle in the Claimant’s possession, to the final Bundle. Again during an adjournment, the Claimant was given the opportunity to review the hard copy of the final Bundle that had been provided for the Claimant’s use whilst giving evidence in the witness box (on yellow paper).

[8]The Respondent confirmed that the difference in bundle page size from the June bundle (500+ pages) and the current final Bundle, was the inclusion of some 200+ Whatsapp messages that the Claimant had disclosed subsequently. There was also some slight renumbering. The Respondent confirmed that a copy of the updated Bundle had been sent to the Claimant by WeTransfer link on 18 July 2024, WeTransfer being the Claimant’s preferred method of receipt of documents.

[9]The Claimant maintained that he had not received that updated Bundle. A copy of an email from the Claimant of 18 July 2024, responding to the Respondent’s 18 July email providing the We Transfer link to that Bundle, confirmed to the Tribunal that the Claimant had been sent the final updated Bundle on 18 July 2024.

[10]The Respondent’s representative confirmed that they were content for the Claimant to retain the hard copy of the witness bundle and use that copy throughout the final hearing, including when he gave evidence. The Claimant also agreed that all the documents were familiar to him and that the additional documents were the series of social media exchanges that he himself had wanted included.

[11]It was therefore determined that the Claimant could retain the hard copy Bundle for his own use.

[12]The Claimant also made an application to adduce further documents to the Bundle which he claimed had not been included. All of which were agreed to by the Respondent and included in the Bundle. Indeed, additional documents were produced over the course of the final hearing, from both the Claimant and Respondent. On each occasion, there was a short case management discussion regarding late disclosure and/or late inclusion in the bundle, relevance to the proceedings and were permitted by the Tribunal on each occasion with the consent of both parties.

[13]These additional documents extended the final hearing bundle to a bundle to 850 pages [784-850]. Witness statements

[14]The Claimant’s written statement was very brief. Again, some time was spent with the Claimant on the first day of the hearing seeking to understand why. To an extent this was linked to discussions regarding the Bundle and also to whether the Claimant’s processing disorder had impacted on his ability to prepare a statement.

[15]The Claimant spent that time explaining his processing disorder, how he had prepared other statements, such as the impact statement, his own ability to prepare documents and type notes, which he does with a black background and white font. The Claimant explained to the Tribunal that he had not been formally assessed for any specific learning difficulty during his primary and secondary school education. He been formally assessed whilst at his second year at University in 2014 (when the Claimant would have been around 21). The Claimant explained that on the recommendation of a university tutor, because of problems he had been having with concentration, reading writing and spelling, he had self-referred for formal assessment. The report prepared indicated that the Claimant was assessed as having a specific learning difficulty impinging upon his ability to read accurately, write at speed, spell and express ideas on paper [103]. An additional 25% time in formal examination was recommended as well as dispensation for his poor spelling. A study skills specialist was recommended and the needs assessment summary recommended a laptop and digital voice recorder as well as coloured overlays (yellow and aqua,) as well as assistive software [807].

[16]Whilst no reference is made to documents being printed on yellow paper and no other medical information was in the original Bundle, a GP letter dated 10 August 2020 [817] states the following: ‘I understand that one of the techniques used to overcome this has been for Samual to have information on yellow paper ………..’.

[17]The Claimant also gave evidence that the software that had been provided in 2020, following a later University Needs Assessment, included licences for assistive software that he continued to use whilst at the First Respondent until around August 2022 when it stopped working [809].

[18]Ultimately, the Claimant’s explanation was that the statement was brief as he intended to reference documents in the Bundle but had been unable to so without a final page numbered bundle. It was therefore determined that to ensure a fair hearing it was in accordance with the overriding objective that the Claimant would be permitted to prepare a list of all the documents that he wished to be read in conjunction with his written witness statement, that he could provide that to the Tribunal and Respondent by 9.30am on the second day before he commenced his evidence. This was undertaken. Privacy Orders

[19]Of its own initiative, the Tribunal expressed concern that despite numerous references in the documents in the Bundle to multiple service users, who appeared to be both under 18 and potentially vulnerable individuals, no application had been made for any privacy orders. Additionally, two of the Respondent’s witnesses named a particular young person (aged 15/16 at the time,) who had been both a service user and volunteer for the First Respondent.

[20]The Respondent was directed to prepare a list of such service users / volunteers overnight and provide that to the Tribunal and Claimant by 9.30am the following day. This was undertaken and, on the morning of the second day, Debbie Davies gave evidence in response to questions from the Tribunal, regarding the individuals that potentially ought to be covered by a privacy orders.

[21]Following that evidence, anonymity orders and a restricted reporting order was made and oral reasons for those orders were provided at the hearing. Without prejudice correspondence/Warning on self-incrimination

[22]Both parties agreed that they had both waived any privilege in the without prejudice correspondence that was included in the Bundle and referred to in the witness statements. This was noted.

[23]One such letter has been the subject of a complaint to the police of potential blackmail by the Claimant of the Third Respondent. It was agreed by all parties that the police have since indicated that no action will be taken. Mr Weed also confirmed that the CPS had confirmed likewise. On that basis, it was not considered that there was now a realistic prospect of criminal proceedings and the Claimant was not given a warning on self-incrimination. Adjustments

[24]Adjustments for the Claimant were discussed. A break of 10 minutes every hour – hour 15 minutes was discussed and the Claimant agreed that ‘felt about right’ but he was to ask if he required further breaks once the hearing had started, when we could have further discussion in relation to the regularity of breaks. This did arise from time to time and further and additional breaks were given.

[25]The Claimant had already been provided with a copy of the Bundle and witness statements on yellow paper.

[26]It was also agreed that the Claimant may need more time for processing when asked questions and might need questions to be repeated.

[27]The Claimant also explained that he fidgets and he was also informed that any fidgeting would be ignored and would not be taken into account by the Tribunal.

[28]It was agreed that short questions should be asked of the Claimant and the Respondent’s counsel, in cross-examination, signposted his areas of cross examination throughout by repeatedly referring the Claimant to the list of issues and the topic that was being addressed. List of Issues and Legal Principles

[29]A copy of the final List of Issues is attached as an Appendix to this judgment (Appendix A).

[30]The list of issues was essentially that drafted by Judge Harfield at the hearing on 20 September 2023 and included in her case management order [26] with the following amendments: a) Time issues on the unfair dismissal claim are no longer in issue; b) It has been conceded by the Respondent that at all relevant times the Claimant was a disabled person by reason of his visual processing disorder; c) The Respondents also says that it had knowledge of disability from September 2022 but that they also knew that the Claimant was substantially disadvantaged in not receiving written documentation on yellow paper from July 2022. The First and Second Respondents’ position in relation to emails on yellow background, is that it did not know that the Claimant was disadvantaged by this until September 2022.

[31]The Claimant was encouraged to keep that List of Issues before him during the hearing, particularly during his questioning of the Respondent’s witnesses and in summing up to satisfy himself that he had questioned on all complaints brought.

[32]In cross-examination, whilst the Claimant did not expressly withdraw his victimisation complaint brought in relation to the allegation that the Third Respondent, Martha Jones, had taken his without prejudice email to her to Bud Harper because of the protected acts he had relied on (see §8 List of Issues), he did confirm that he was confused by the term ‘victimisation’. He indicated that he had used the term ‘victimisation’ in a general sense that he was a ‘victim’ of her discrimination as opposed to the act being an act of victimisation under s.27 EqA 2010. He confirmed that he was still pursuing claims in relation to that act as claims of direct sex discrimination or, in the alternative, harassment related to sex against her personally and against the First Respondent.

[33]A copy of the legal principles applying to the claims is also attached as Appendix B.

Evidence

[34]All witnesses relied on written witness statements which were taken as read.

[35]The Claimant gave evidence as did the following, on behalf of the Respondent: a) Mr Bud Harper, Centre Manager employed by First Respondent and line manager of the Second Respondent; b) Ms Isobel Sweet, Trustee of Management Committee of First Respondent; c) Ms Deborah Davies, Second Respondent and employed by First Respondent as a Youth and Community Worker and Claimant’s line manager; and d) Martha Jones, the Third Respondent and employed by the First Respondent as an Outreach Worker.

[36]All witnesses were subject to cross-examination and some questions from the Tribunal.

[37]The final Bundle amounted to some 850 pages and references to pages in the Bundle are denoted by [ ].

Findings of fact

[38]The findings of fact given by the Tribunal are made on the basis of the evidence before us and based on the balance of probabilities.

Background

[39]The First Respondent is a registered charity whose purpose is to support the local community and disadvantaged people in the Cathays area of Cardiff. It employs around 90 employees on differing contracts.

[40]It has a board of trustees, or management committee as it has been referred to. The number of trustees varied and we heard evidence from Isobel Sweet, one of a trustees since 2019, that the First Respondent had been struggling in 2022 and 2023 trustee’ numbers and that around the time of the Claimant’s disciplinary and appeal, whilst there were additional trustees, these were new and inexperienced in dealing with employment issues. At the relevant times, i.e. the dates of the alleged discrimination and dismissal of the Claimant, Simon Murray was Chair of that board.

[41]The Second Respondent, Debbie Davies, has worked for the First Respondent for 25 years, employed as a Youth and Community Worker and for 20 years of that has been a manager of staff there. She became the Claimant’s line manager in around April 2022 and as at the date of termination of the Claimant’s employment, she managed around 50 sessional workers and line managed three managers. She reported to Bud Jones, the Centre Manager.

[42]The Third Respondent, Martha Jones, commenced employment with the First Respondent in the summer of 2021 whilst she was on a break from university. This was when she first met the Claimant. At the end of that summer, the Claimant had asked her to become part of the Youth Team and start a youth club. Shortly thereafter, the Claimant had become her line manager. She described the relationship between them both as a positive one at that point which developed into a friendship and led to them adding each other on social media including Instagram and Facebook. As a result, interaction between them often took place outside work hours and was a regular occurrence. Examples of the friendly interaction was evidenced throughout the Whatsapp exchanges between the two contained in the Bundle [433-533, 544-744]. She is currently still employed by the First Respondent as an Outreach Worker.

[43]The Claimant commenced employment with the First Respondent on 1 September 2016, commencing initially as a youth worker. Over the years he worked part time on various projects, progressing in 2021 to roles that involved more managerial responsibilities and increasing hours.

[44]Following discussions regarding additional hours and by April 2022, the Claimant had left all other employment and was employed by the First Respondent only. He worked 32 hours per week and from that time was predominantly line managed by the Second Respondent. By this time, he had finished his degree, a BA in Youth and Community Work. He was 30 years’ old at the date of termination of employment on 8 June 2023,.

[45]The Claimant was employed on terms and conditions set out in a number of separate contracts of employment, all setting out similar or same terms and conditions save for the hours of work, where both contracts and contractual hours were subject to grant funding from third parties. Job titles and roles varied according to the funding [69-100].

[46]The Claimant’s employment as also subject to a disciplinary procedure [101] which provided for a three stage process and provision for termination in the event of gross misconduct. Period of employment prior to 2022

[47]There was no evidence that there was any issue with the Claimant’s conduct, nor relationship with staff until at least 2020. Indeed, in February 2019 in an email Debbie Davies wrote she confirmed that she and his line managers were happy for the Claimant to continue in employment and that during his time at the First Respondent, his conduct had never caused concern and that the Claimant was a extremely professional youth worker, popular with staff members and young people [115].

[48]Debbie Davies gave evidence however, that from around 2020 difficulties arose in the working relationship between the Claimant and his line managers Hannah Hudd and Aeron John, when they raised concerns to her about them1. If that was the case, there was no evidence from Debbie Davies that this had been dealt with formally or informally by her and that the only action that appears to have been taken is that she became the Claimant’s line manager, removing their responsibility to line manage the Claimant to herself.

[49]We found that there was no evidence that the First or Second Respondent had any or any significant concern regarding the Claimant’s conduct until after April 2022, by which time Debbie Davies was the Claimant’s line manager in respect of all of his contracted roles. Debbie Davies gave evidence that her relationship with the Claimant deteriorated in 2022. She is of the belief that the Claimant did not like to be managed and that if she challenged him in any way, he saw it as a personal attack. 1 Davies §6

[50]This is also when the Claimant considers that his problems started with Debbie Davies. He gave evidence that this was when he started raising concerns and this was where Debbie Davies did not like to be challenged. June 2022 Meeting: First Protected Act

[51]The Claimant claims that on 10 June 2022, he made oral complaints to Debbie Davies and possibly Bud Harper, about failures to make reasonable adjustments and his own mental health and well-being and that these had been then summarised in an email drafted by Debbie Davies.

[52]Neither Bud Harper or Debbie Davies have any recall of such a meeting and none of the parties, including the Claimant, have produced any document recording the existence or content of such a meeting. If the Claimant responded to this email, this was not before us and not in the Bundle.

[53]During the hearing however, when questioning Bud Harper, the Claimant confirmed that he could not actually recall if Bud Harper had even been at such a meeting. We found that no meeting or conversation had taken place with Bud Harper at this time regarding the Claimant’s disability, reasonable adjustments or his mental health.

[54]The Claimant produced during the final hearing, a copy of a photo of a Whatsapp exchange between him and Debbie Davies of 10 June 2022. With the consent of the Respondent, this was included in the Bundle [850].

[55]Debbie Davies was questioned by the Claimant about the content of a Whatsapp exchange between them of 10 June 2022 which referred to them meeting later that day. Her evidence was that she did recall having a meeting with some service user’s parents around this time as there had been an incident, a meeting which was referenced in the Whatsapp exchange, and that if she and the Claimant had met that day, it was in relation to that and not about the Claimant or adjustments for him. Her evidence was that she would have recalled if she had a discussion with the Claimant about his disability and reasonable adjustments. She did not.

[56]Whilst that document did indicate that at some point that day Debbie Davies did likely meet the Claimant, we were not persuaded that the document assisted in determining that a conversation did in fact take place that day between the two regarding failures to make reasonable adjustments and/or the Claimant’s own mental health and well-being.

[57]We also noted that the Claimant had subsequently routinely recorded discussions in writing by way of email where he was concerned or was complaining. The Claimant had not provided any witness evidence or any supporting document indicating that such issues had been discussed that day.

[58]We therefore found that the Claimant had not proven, on balance of probabilities, that he had complained that day or around this time, about failures to make reasonable adjustments and/or even his own mental health and well-being. June 2022: Martha Jones complaint

[59]Later that month Martha Jones approached Bud Harper, Centre Manager, requesting an informal conversation regarding concerns she had about the Claimant’s behaviour towards her. Her concerns were of excessive communication from the Claimant, which partially related to the period of time she had taken off work for bereavement, and lack of confidentiality following her return to work. She was concerned not to get the Claimant into trouble and she believed that the Claimant would be angry with her.

[60]As a result, on 29 June 2022, Bud Harper emailed the Claimant confirming that he had received that informal complaint from Martha Jones. He listed four bullet points: a) The first two related to excessive communication outside of hours and that there had been a pattern of harassment through excessive messaging and contact outside or work hours with Martha and with another person, a young person (15/16 year old) who had been a service user but was now volunteering with them (“Employee 1”); b) The email also referred to a lack of confidentiality regarding Martha’s bereavement when she had returned to work; and c) that Martha felt that the Claimant had not been listening to her that she did not want to be leader when he was off work [187].

[61]Bud Harper confirmed that Martha did not wish to make matters formal but the Claimant was informed that he would like to see an improvement in the professional relationship between the two. Bud Harper asked to meet and subsequently spoke to the Claimant and Employee 1, explaining to Employee 1 that she should be mindful of what to expect in a working relationship. 10/11 July 2022: Meeting or conversation with Bud Harper-Second Protected Act

[62]The Claimant asserts that a meeting, or a conversation with Bud Harper took place on either the 10 or 11 July 2022, in which he claims he made an oral complaint about Debbie Davies and failures to make reasonable adjustments and in turn, the impact on his mental health. He asserts that he wanted to make a formal complaint as Debbie Davies was not listening to him.

[63]Bud Harper provided no written statement evidence in relation to this allegation but did refer to an emailed complaint that the Claimant had made about Debbie Davies on 13 July 2022 [188].

[64]That email does not refer to any earlier conversation between the Claimant and Bud Harper. In that email, the Claimant indicated that he wanted to raise a formal complaint about his job role he stated that he did not feel trusted with the positions that he was in and not believed. He indicated that he felt that communication went well, a number of things had happened and he did not feel safe or trusted and complained of matters relating to budget planning and that conversations had not been clear [188]. The Claimant made no reference to failures to make reasonable adjustments or his mental health but within the email did confirm that he was going off sick but would be back the following Thursday.

[65]A meeting took place on 18 July 2022 between the Claimant, Bud Harper and Debbie Davies to discuss his concerns and subsequently, Bud Harper sent the Claimant an email confirming the matters discussed [189]. Again, no reference was made in that email to the Claimant’s disability, reasonable adjustments or even the Claimant’s mental health.

[66]Again we had no clear evidence from the Claimant regarding what was said or when and we concluded that had the meeting discussed such issues, then this likely would have been referred to by Bud Harper and it was not, or the Claimant would have responded highlighting the omission. He did not.

[67]We therefore found that no discussions took place between the Claimant and Debbie Davies or Bud Harper on this day either regarding reasonable adjustments and/or his mental health.

[68]Indeed we found that at no time in the period up to July 2022 had the Claimant raised any concerns regarding reasonable adjustments or his disability, including his mental health. July 2022: Training

[69]On around the latter part of July 2022, a training event was held conducted by Debbie Davies and attended by a number of staff including the Claimant. Attendees were provided with written training material printed off as hard copies on white paper.

[70]We heard some evidence regarding the regularity of training. Such training events were rare. It was the Claimant’s evidence that this was the first time that he had attended training whereby printed material was in use. This was not challenged and we found that this was likely the case.

[71]What the First and Second Respondent knew about the Claimant’s disability prior to the meeting, and what the First and Second Respondent knew about any needs of the Claimant regarding printed material prior to the meeting, is in dispute. What happened at that meeting is also in dispute. The Claimant alleges that at that meeting Debbie Davies ‘belittled’ him for his failure to read the documents that had been printed off, an issue that has been disputed by the First and Second Respondents.

[72]We first considered what knowledge the First and Second Respondent held regarding disability and the need for documents to be printed on yellow paper prior to that training meeting. That yellow paper had first been ordered for the Claimant earlier in July 2022, was not disputed by the Claimant - it had been ordered by the duty manager after the Claimant had requested it of Bud Harper that month. It is also not in dispute that a copy of the training material had not been printed on yellow paper for the Claimant.

[73]On the morning of the first day of the hearing, the Claimant had provided an email exchange from 17 August 2020 that he sought to include in the Bundle. The email was one sent by the Claimant to one of his then line managers, Adam Kaps, in which he had stated ‘please note if sending via paper so send on yellow due to my visual processing disorder’ [796]. The email is copied into Bud Harper.

[74]The Respondent was permitted to ask additional questions of Bud Harper in relation to this document before the Claimant questioned him. Bud Harper did not dispute that he must have received that email as it was clearly stated that he had been copied in, but he could not recall receiving it. He pointed out that the email had not been directly sent to him, only copied to him. His evidence was that he had likely not read it in any detail or at all as it had been sent at a time when he was away on holiday. Due to the subject matter of the email, he was able to recall the background to such an email which was that at that time the Claimant had been suspended from employment and had an ongoing dispute with another employer. The Claimant had made a subject access request of the First Respondent and locating documents was urgent as a result. That had been the focus of the exchange.

[75]Bud Harper had given statement evidence that he did not know that the Claimant had a processing disorder that required him to have documents on a yellow background to enable him to read them until around July 2022. This appeared to be in contradiction to the information he had been sent in that email of August 2020 but we accepted the live evidence that he simply had no recall of the content of that email.

[76]His evidence was that the Claimant had not indicated when starting employment that he had any disability and that the Claimant had not requested emails or digital messages to be sent with a yellow background until after he had been suspended; that he had never requested or stated that he needed specialist software for any disability.

[77]Debbie Davies’ evidence was that whilst she was aware that the Claimant had been diagnosed with dyslexia in university, and that he had a laptop with adaptations, she was not aware personally that he had a processing disorder. She was not aware that he required documents on yellow paper until July 2022, when yellow paper appeared in the office ordered at the Claimant’s request and gave live evidence that, from the time that the Claimant started work in 2016, numerous documents on a white background had been exchanged with him and at no time prior to July 2022 had the Claimant disclosed to her that he had difficulty in reading them because they were not on a yellow background. She gave an example of screenshots of hand-written lists written on white paper that had been emailed to him and that the Claimant had never suggested a problem [126]. She also gave evidence that she sat next to the Claimant for many hours in the office over the years and had never seen him turn his screen yellow to read emails. We accepted that evidence.

[78]We also found that whilst Martha Jones had been aware since 2021 that the Claimant had a processing disorder, he had never told her how it had impacted him. In particular, the Claimant had not told her that he needed a yellow background to read electronic messaging. We also accepted her evidence that she never used a yellow background or highlighted text in yellow when messaging or emailing the Claimant and that when she used to swap her computer with his every Monday, his screen never had a yellow background and that the first time that there was such an indication was in August 2022 .

[79]We were satisfied that the First and Second Respondent had knowledge of the Claimant’s disability by the summer of 2020 as a result of: a) the Claimant telling Mia Hughes, Adam Kaps and Aeron John that he had a processing disorder and that he required paperwork to be printed off on yellow paper that; b) Debbie Davies knowing that the Claimant had dyslexia and that he had adaptive software.

[80]We were not persuaded that Debbie Davies had any personal knowledge of any requirement to have hard-copy documents printed on yellow paper until early July 2022, when the Claimant ordered yellow paper. The Claimant had not ordered yellow paper prior to this date and it was her evidence that she had not seen the Claimant use anything other than white paper. We had accepted that evidence. Further, simply because the Claimant had referred to having a need for any printed documents to be on yellow paper in messages to his managers, Adam Kaps and Mia Hughes in 2020 [796, 813], that it did not follow that they would have informed her and it was Debbie Davies’ evidence that they had not. We accepted also that evidence.

[81]However, we did find that Debbie Davies as Second Respondent did have the requisite knowledge of the Claimant’s disability and knowledge of the Claimant’s need for documents to be printed on yellow paper before the July 2022 training meeting.

[82]What is also in dispute is what happened at the training. a) Debbie Davies’ evidence was that she noticed that the Claimant had not picked up the handout and was staring at the ceiling. She says she asked the Claimant if he was ‘OK’ and that she asked him why he was not reading the handout. Her further evidence is that the Claimant explained that it was because they had not been printed on yellow paper, that she apologised and a further copy, printed on yellow paper that had recently been ordered for him, was provided to the Claimant with a few minutes. b) The Claimant accepts that he received the training materials printed on yellow paper within around 10 minutes and the training continued but maintained that he should not have had to asked after repeatedly raising this need for the previous 4 years. In live evidence, the Claimant gave evidence that Debbie Davies shouted loudly at him and that another member of staff, Ella, who had run out of the room and printed the documents on yellow, had apologised to him not Debbie Davies.

[83]We preferred the evidence of Debbie Davies in relation to this issue. We concluded that had the Claimant been unhappy about this issue, in particular Debbie Davies’ reaction to this, he would have complained. He had complained about her previously and we considered it more likely than not that had the Claimant been in any way upset at the failure to provide yellow paper or Debbie Davies’ reaction to him that day, he would have complained immediately or within a few days. He did not.

[84]Despite complaining about other issues subsequently, he did not complain about the training until after his suspension when, on 13 September 2022, he complained that Debbie Davies had ‘outed [him] in front of “everyone” and said why aren’t you reading them’ knowing that he couldn’t read black on white [233]. He did not complain that she had shouted at him, loudly or otherwise.

[85]Whilst we found that Debbie Davies did question why the Claimant was not reading the documents, we did not find that she belittled the Claimant for his failure to read documents. She did not dismiss as unimportant his requirement to have documents printed on yellow paper. She did not shout at him.

[86]We also deal with the issue of knowledge regarding the requirement to have electronic documents, whether emails or otherwise, with a yellow background. We did not accept the Claimant’s evidence, given in response to crossexamination, that his emails had an auto-response which indicated that unless the email was on a yellow background that it would not be read (or words to that effect). He had not provided or sought to provide such a document. Whilst documentary evidence is not always required to prove an issue, where evidence is the content of a document and there is a lack of that actual documentary evidence relied on, this was significant and we did not accept as credible the Claimant’s evidence on this point.

[87]We found that this had not been an issue that had been raised by the Claimant at any time until after his suspension and in any event, the Claimant had been using adaptive software since at least 2020 when provided by his university. 11 August 2022 : Claimant’s complaint regarding Debbie Davies

[88]On 11 August 2022, the Claimant sent an email to Bud Harper regarding Debbie Davies’ relatives and on reporting of incidents involving them, seeking advice on how to approach the issue with her. He complained that Debbie Davies was ‘slowly leaving me in the lurch’ which was making him uncomfortable and requested a change of line manager [191].

[89]He sent a further email later that day again to Bud Harper [193] headed ‘Possible complaints to the Board’ that included a range of complaints including: a) allowing non-trained staff to peg feed; b) concerns that another male member of staff had not been questioned regarding their management of a trip, whereas he had been questioned about his; and c) concerns regarding Debbie Davies’ grandchildren and her treatment of incidents involving them.

[90]He sought a change of line manager, that Debbie Davies did not bring her relatives in unless approved and a change of policy and procedure regarding peg feeding. No reference is made to any disability or complaints of discrimination. 15 August 2022: Meeting with Claimant, Bud Harper and Debbie Davies

[91]A meeting was arranged to discuss the Claimant’s concerns. This took place on 15 August 2022 between Bud Harper, Debbie Davies and the Claimant. The notes reflect that the Claimant’s concerns regarding her relatives were discussed and there was a discussion regarding the Claimant’s relationship with Debbie Davies.

[92]It was agreed this needed to be worked on and developed but no one else was available to line manage the Claimant. The email reflects that both the Claimant and Debbie Davies had indicated that they were happy to move forward [195]. We found that this was likely to be an accurate summary of what had been discussed at that meeting. Again, the note contains no reference to the Claimant’s disability or discrimination. 19 August 2022: Maitland Park Summer Festival

[93]On Friday, 19 August 2022, the Claimant, Debbie Davies and Martha Jones attended the Maitland Park Summer Festival, a family funday and fundraiser. Other employees, including Employee 1, and service users also attended.

[94]Martha Jones gave evidence that the Claimant had seemed on edge that day and had shouted and snapped at various family members, but not at her. She had a disagreement with him about the management of a service user but that this had not caused an issue between them. Debbie Davies gave evidence that the Claimant seemed agitated and negative about the event and that several staff told her that he was angry and had upset people. Two staff told her that they would not work with him again and a guest DJ complained that he had been shouted at.

[95]Debbie Davies reported her concerns to Bud Harper who asked her to speak to staff who had attended the Festival. When, in terms of exact timing she did this, was not clearly set out in her written statement evidence but we found that more likely than not, this would have been in the week following that Festival.

[96]This was supported by the email of 23 August 2022 that she sent Bud Harper in which she asked that it be noted that some 10 members of staff had raised concerns regarding the Claimant and that on at least four occasions the Claimant had taken sick leave because of mental health issues [202]. She stated that every time this had happened, the Claimant had followed up with complaints about her which she felt were unjustified or misconstrued. She ended that she did not feel that she could trust his professionalism and judgement and therefore would find it difficult to manage his unless his behaviours changed significantly.

[97]A number of additional issues arose in the week following the Maitland Park Festival that have formed the subject of the Claimant’s complaints. 21 August 2023: Text exchange between the Claimant and Debbie Davies

[98]On Sunday 21 August 2022, a Whatsapp exchange took place in a Whatsapp group that had been created for work purposes, regarding photos from the Maitland Park Festival. The group included a number of staff including the Claimant and Debbie Davies.

[99]A member of staff, Helena, sent a message to the Whatsapp group asking if anyone had photos of the Maitland Festival to send to her as she was scheduling a social media post about the event the following week [219]. The Claimant responded that he would be in work the following day and would send them through once everyone had sent them through to him. She responded that she would be on leave, but that would not be a problem. After a further brief exchange between the two, when the Claimant indicated that he wanted to get photos from the community showing the festival off, Debbie Davies sent a Whatsapp suggesting that anyone who had photos should send them direct to Helena and that she could then decide which to use.

[100]The Claimant immediately left the Whatsapp group. He sent a separate private message to Debbie Davies [220]. In that text he wrote: ‘Wont be in tomorrow off with mental health issues’.

[101]Debbie Davies responded: ‘Really!! I thought you were back in the office tomorrow. This is really not good Sam if this is over the photos going to Helena, we all have loads and she needs them tomorrow.’

[102]The Claimant further responded ‘wont be in Tuesday either. See you in September.’ Following some further exchanges, Debbie Davies ended the exchange saying ‘I hope you have a good holiday and take some time to relax x’ 21 August 2022: Whatspp from Claimant to Bud Harper: Third Protected Act

[103]The Claimant relies on the content of a Whatsapp he sent to Bud Harper on 21 August 2022 and a subsequent telephone conversation between the two, in which he claims that he complained of disability discrimination and relies on as a protected act for the purposes of his victimisation complaints.

[104]It is an agreed fact that on 21 August 2022, the Claimant and Bud Harper exchanged Whatsapp or text messages. A documented record of such an exchange was not included the Bundle. This was queried by the Tribunal and the Respondent’s representative confirmed that the detail of a text exchange that day had been agreed by both parties as that set out in Bud Harper’s statement2:

[105]The Claimant texted Bud Harper that day as follows: ‘Not in tomorrow off with mental health issues again Debbie interferes with everything and its making me sick and tired.’ Bud Harper responded: ‘Sorry to hear you feel like this. Let me know if you want a chat tonight/tomorrow’.

[106]Bud Harper recalls that they also subsequently spoke but that there was no mention of discrimination.

[107]In live evidence, the Claimant disputed that there had been no mention of the Equality Act. His evidence was however that he said he was going away and that he was fed up. Whilst he maintained that this had been recorded in emails, he was unable to confirm which email but referred to the historic text/Whatsapp messages that he had sent to Aeron John, Adam Kaps and Mia Hughes in 2020.

[108]We did not find that the Claimant in that text exchange, raised any issue with the Equality Act 2010 or discrimination more widely. We were not persuaded 2Bud Harper WS§13 that the Claimant said anything more to Bud Harper at that time than what was written in that text exchange. 24 August 2022: Debbie Davies email regarding gorge walk and canoe incidents

[109]The Claimant complains that on 22 August 2022, Debbie Davies sent him an email when he was absent on holiday relating to and involving a young person on a trip, which caused him stress and anxiety. He complains about the content of the email and that Debbie Davies sent it because she knew he was going on holiday, would cause distress and knew that there was a grievance about her to be discussed when he got back. He also complains the email was not sent on a yellow background (§5.1.5 and §7.15).

[110]The date given by the Claimant is incorrect as there is no email of 22 August 2022. Rather, on 24 August 2022 Debbie Davies emailed the Claimant and his complaint relates to that email [204].

[111]The email was sent to the Claimant at a time when he was on annual leave and was going on holidays with his parents and related to two incidents that had arisen in the previous weeks: a) The first related to a canoe trip the previous week, when an adult employee, April, had canoed through some trees that had brushed the 14- year old child of another employee, Hayley. Debbie Davies reported that she had been informed that the Claimant had called April that Sunday indicating to her that Hayley had wanted the incident reported; b) The second related to an incident earlier in August, when a 12-year old child (a volunteer and another child of Hayley’s,) had taken part in on a gorge walk and had gone home with a lump on their head as a result of an incident involving another service user, the grand-child of Debbie Davies. Hayley had complained that she had not been told about the injury but that the Claimant had requested an accident report. Debbie Davies reported that Hayley’s child had now reported that she had not been hit deliberately and that as a result, she was updating that incident report.

[112]She informed the Claimant that as he had overseen the trip, he would want to be kept up to date.

[113]She also reported the same to Bud Harper, who indicated to her that he would rather the Claimant was not emailed whilst he was on holiday [203].

[114]On the following day, 25 August 2022, Debbie Davies emailed Bud Harper and the Chair of the Board, Simon Murray, attaching her incident reports in relation to two incidents that had arisen earlier in August, explaining why she had contacted the Claimant [208].

[115]Again, the Tribunal found that Debbie Davies did not know at this point that the Claimant was disadvantaged by emails being sent without a white background as at no time prior to this had the Claimant indicated that this was a requirement or a need to assist with his dyslexia or visual processing. Complaints about the Claimant

[116]As requested by Bud Harper, in the same week Debbie Davies spoke to those who were line managed by the Claimant and/or at the Maitland Park Festival, regarding the Claimant’s behaviour at the Festival. This included the Martha Jones.

[117]It appears that some staff in turn prepared their own written statements in writing and sent them to her, others spoke to Debbie and she recorded what they told her.

[118]Martha Jones emailed Debbie Davies on 24 August 2022, providing her written statement confirming that another employee, Rhys, was also willing to provide a statement [205]. In the statement and in summary, she complained of : a) The Claimant’s management of Employee 1 and Service User 1; b) The Claimant’s behaviour when she returned to work after her last complaint; c) Inappropriate comments and behaviour towards her as well as other females, including Employee 1; d) Inappropriate touching.

[119]The Claimant has alleged that these allegations were false and amount to direct sex discrimination (List of Issues §9.1.3) that require the Tribunal to make findings of fact.

[120]In her witness statement evidence, Martha Jones had given evidence that at the end of the Maitland Festival, the Claimant had knelt in front of her and had rubbed her thighs. In cross-examination, the Claimant completely denied this accusation. In live evidence, in response to questions, the Claimant denied having any conversation regarding ‘boobs’, that had been alleged in Martha Jones’ statement for the disciplinary, and that he was flabbergasted’ that both Martha Jones and Employee 1 had given statements [205, 332] that he had joked with them in such a way.

[121]In both his own answers to cross examination and his own questioning of Martha Jones, the Claimant suggested that Martha Jones had had used sex to get her own way, namely complained about him to get him sacked and benefitted from her allegations against him as she had taken on more positions after he had left and had higher earnings as a result. Her response was that the Outreach post after the Claimant had left had been covered between a number of staff and that the increase in pay averaged at around £3 per week. The Claimant also considered that Martha Jones was unhappy as she wanted Service User 1 moved away from Employee 1 and that this related to sex as the Claimant was in a management position and she wasn’t happy with his decisions.

[122]We were not satisfied that the Claimant had demonstrated that there was any or any sufficient motivation for Martha Jones to fabricate or make untruthful allegations

[123]In questioning the Third Respondent, the Claimant suggested to her that her that the messages she had sent in the online exchanges between them between August 2021 to 22 August 2022 were ‘flirty’ [433-533]. We found nothing in the messages from the Third Respondent, or indeed from the Claimant, that could be reasonably or objectively viewed as ‘flirty’, as had been suggested by the Claimant. Rather, we found that the content and tone of the exchanges demonstrated nothing more than a friendly but platonic relationship between the two. Beyond this, we did not find that these exchanges assisted in demonstrating that the allegations made by Martha Jones were ‘false’.

[124]In evidence, Martha Jones was challenged as to why she had not contacted the police regarding her allegations of this conduct. She responded that she hadn’t as she had not felt threatened, just uncomfortable. We accepted that evidence and found that simply because conduct makes one feel uncomfortable, it did not follow that they considered necessary or appropriate to contact the police. We found that her responses were credible and did not consider it relevant that she had not reported concerns to the police at this time.

[125]We also found that the allegations made by Martha Jones were, in part, supported by others in terms of the comments made.

[126]We did not find as result that it could be said that Martha Jones’ allegations were false. Provision Night drinks

[127]By end of that week, and by all accounts likely the night of 26 August 2022, there was an informal drinks event in a pub following an end of a service provision, attended by Debbie Davies and members of staff. The Claimant did not attend as he was still away on annual leave, on holidays.

[128]Debbie Davies’ evidence is that night staff actively sought her out to tell her that they had grievances with the Claimant. She likened it to a #metoo moment as once one employee spoke to her about the Claimant, others came forward. She accepts that speaking about a member of staff in such an informal public setting was unwise. That much is clear. It is liable to cause upset and we accept that it has caused the Claimant much upset.

[129]We did accept Debbie Davies’ evidence however of how the events of that evening arose and did not find that she had that night canvassed or attempted to persuade members of staff to make and/or support formal complaints against the Claimant.

[130]Over the course of the following weeks, Debbie Davies met with the individuals that she had spoken to at Bud Harper’s request, and who had spoken to her on the night out. She took statements from them, either in writing or verbally, which she then recorded in writing [206,211 329-335]. Where staff had no concerns, there was no evidence that she encouraged or canvassed them to make a complaint. She also listed her own concerns which related to historic matters as well as more recent issues [223]. 30 August 2022: Claimant’s grievances against Debbie Davies

[131]On the morning of 30 August 2022, the Claimant sent a series of emails to Simon Murray, Chair of the trust board, that in particular included the following: a) An email asking when Simon Murray would be free to meet to discuss concerns as Debbie Davies had been targeting him and a young service user [213]; b) An email setting more specific complaints that Debbie Davies had targeted and belittled him, raising concerns about her own conduct regarding trips, training and employing her own grandchildren and that she had caused him mental health and well-being issues [212]; and c) A subject access request for a list of all claims againts him and which staff had complained and indicating that he wished for there to be no contact between him and Debbie Davies [214].

[132]Later that day, the Claimant sent a further email requesting CCTV footage of an alleged incident with a co-worker, Sharon [215]. Sharon was an employee that had complained to Debbie Davies the previous week that the Claimant had shouted at her in the week of the Maitland Park Festival. The Claimant was seeking to obtain CCTV evidence of the day that he had spoken to Sharon [215, 332]. Either way, the CCTV was not produced as despite being asked for the date of the footage sought, the Claimant did not respond.

[133]As the Claimant had requested that Debbie Davies not contact him and not line manage him, it was suggested that the Claimant remain on full pay until Simon Murray returned from his own on leave, Bud Harper also being on leave, but that they should meet as soon as possible [226]. The Claimant agreed [228]. Email to Joanne Markham

[134]The Claimant has complained that on 3 August 2022, the First Respondent sent an email to Joanne Markham at the Police and Crime Commissioners office in which he was blind copied. He says that the email unfairly blamed him (by implication) for not responding to an earlier email. The email was not sent on a yellow background and caused him severe anxiety and depression (List of Issues §5.1.4 and 7.1.4)

[135]These dates are incorrect and the Claimant confirms that he in fact complains of an email of 8 September 2022.

[136]That day, Debbie Davies had sent an email to a contact at one of the First Respondent’s funders, Joanne Markham, apologising for a delay in signing the grant acceptance letter, noting that it had been sent to the Claimant some time ago but that it had only just been brought to her attention. The Claimant had been copied into the email [229].

[137]The Claimant forwarded the email to Simon Murray and Bud Harper later that day, stating that Debbie Davies was again having a ‘dig’ at him and he was sick of it [229]. Debbie Davies denies that she was blaming the Claimant for the delay; that she was simply acknowledging the facts and did not put the email on a yellow background as she was not aware at that time that the Claimant required emails to have a yellow background.

[138]Whilst we found that by copying the Claimant into the email and apologising for the delay, it was reasonable for the Claimant to consider that there was implicit criticism of him for the delay, we did not find that Debbie Davies was aware of the time of the requirement for emails to have a yellow background. 12 September 2022: Suspension

[139]As a result of the complaints against the Claimant, the complaints regarding the conduct of the Claimant had been escalated to the board of trustees and they decided to conduct an investigation into the concerns [283]. At a meeting on 12 September 2022, conducted Simon Murray and Bud Harper, the Claimant was suspended.

[140]It is an agreed fact that at that suspension meeting and at some point towards the end of the meeting, Simon Murray said to the Claimant ‘when you come back or if you come back’.

[141]The suspension was confirmed in a letter dated 13 September 2022 which included eight bullet points setting out in brief the allegations against the Claimant [250]. The letter confirmed that an investigation would take place and that during the suspension the Claimant was instructed not to contact any clients, customers, staff or colleagues unless the Claimant could demonstrate that it interfered with his ability to answer any of the allegations. 13 September 2022: Claimant’s further Grievance

[142]On 13 September 2022, the Claimant submitted a further complaint against Debbie Davies in which he repeated some of his earlier complaints and also raised concerns regarding Martha Jones. He also complained for the first time about the lack of yellow paper in the training session in July [233].

[143]On the same day he also wrote to Simon Murray indicating that he could not read emails without a yellow background [817]. The Tribunal found that this was the first time that the Claimant indicated that he required emails with a yellow background.

[144]At some point the board determined that the Claimant’s complaints would be investigated as a grievance and one of the trustees, Elly Lock, was appointed to undertake that investigation. As part of that investigation, in October, she met with the Claimant and Debbie Davies also provided her responses to the Claimant’s complaints [277].

[145]Elly Lock’s investigation concluded in December 2022 and she provided a report on her investigation to the Board on 17 December 2022 [281, 291]. Whilst she considered poor communication was evident in one instance, she did not identify a pattern of behaviour that suggested bulling or harassment. She further concluded that there was no evidence suggestive of any conflict of interest regarding Debbie Davies’ treatment of her grandchildren.

[146]In relation to concerns around process and staff not undertaking activities with training, she concluded that there was some evidence of isolated incidents consistent with some of the Claimant’s concerns and upheld that aspect of the Claimant’s grievance and informal or formal warnings were recommended for staff for isolated incidents.

[147]A copy of the report was sent to the Claimant on 7 March 2023 and he was informed of his right of appeal [293]. ACAS and ET1

[148]In the interim, and on 27 September 2022, the Claimant commenced early conciliation against all three Respondents and on 8 November 2022, Early conciliation Certificates were issued by ACAS[1-3]. On 21 December 2022, the Claimant issued his ET1. Disciplinary Investigation

[149]On 3 October 2022, an investigation was commenced by one of the trustees, Mr Ieuan Bater in relation to the disciplinary allegations. As part of his investigation, statements taken from staff were reviewed Ieuan Bater and a report completed by 15 January 2023 [283-290]. The report recommended disciplinary action be taken against the Claimant.

[150]The report was completed and sent to the board of trustees, including Isobel Sweet [282]. November 2022: Pre-action protocol letters

[151]On 30 November 2022, the Claimant sent to Simon Murray letters he wished to be forwarded on to Debbie Murray [826] and Martha Jones [827] headed ‘pre action protocol – cease and desist’. In those letters the Claimant confirmed he was taken action against them personally for libel/slander/defamation due to the accusations made and that he sought £10,000 in damages.

[152]Simon Murray responded confirming that he would not be forwarding them on. The Claimant indicated that he would send them to the centre by post. We make no findings as to whether the Claimant did or did not send them later by post. Disciplinary

[153]On 13 March 2023, wrote to the Claimant and confirmed that there was a conduct case for the Claimant to answer and invited him to a disciplinary hearing on 23 March 2023 [296]. That meeting was postponed as the Claimant needed injections for migraines [358]. Request for occupational health referral

[154]On 11 April 2023, the Claimant made a request to be referred to occupational health. He indicated he was seriously unwell and wanted an assessment for reasonable adjustments [336]. He wrote again the following day asking to book an appointment with occupational health [355]. On 17 April 2023, Bud Harper emailed back writing that as the Claimant was currently absent due to suspension, not sickness, could he advise why he considered an occupational health referral was required [358]. The Claimant did not respond.

[155]We found that this was the first time that the Claimant requested a referral to occupational health. We did not accept that the Claimant had asked Bud Harper back in June/July 2022. The Claimant was unable even to confirm that Bud harper had been at any 10 June 2022 meeting and did not indicate that he requested a referral at any other time.

[156]We found that the First Respondent did not refuse to refer the Claimant to occupational health. Rather the Claimant did not respond and the request was likely not progressed for that reason. 5 May 2023: Disciplinary Hearing

[157]The disciplinary hearing was rescheduled for 5 May 2023.

[158]No notes or transcripts of the recording of that meeting were contained in the bundle but it is not in dispute that at that meeting the Claimant was accompanied by his trade union representative and the meeting was chaired by Bud Harper.

[159]That hearing was adjourned to give the Claimant the opportunity to provide the additional evidence he sought to rely on. No time frame was given for a decision. In that intervening period the Claimant provided more documents and a reconvened hearing was arranged. Emails of 29 and 31 May 2023: Additional allegations:

[160]Prior to that reconvened hearing date and on 29 May 2023, the Claimant sent to Martha Jones an email which was headed ‘Without Prejudice’. It included a screenshot of an old text exchange between them both regarding Martha Jones’ university work [368]. Whilst the Tribunal questioned whether the email looked as it did in the Bundle, no witness including the Claimant could assist whether it did or did not and the Tribunal accepted the evidence as presented to it at pages 367-369 as being a copy of the email as sent.

[161]In that email, the Claimant proposed to her that she pay him a ‘£10,000 settlement figure’, but that he was ‘going for double in the employment tribunal and £50,000 in the slander/libel case.’ He also suggested that he had statements/evidence that showed that another person had undertaken some university assignments for her and threatened to bring this up publicly in these tribunal proceedings. He told her that he would ask the courts to make her undertake a ‘polly test’, which the Claimant accepts was a reference to a polygraph or lie detector test and was something that he knew a court could not make her undertake.

[162]Martha Jones gave evidence, evidence which we accepted, that she received this email on her phone and saw it just after she woke up on that Bank Holiday Monday, a day when she was not in work. She was extremely upset and contacted her father. Later that day her family contacted the police to complain about the Claimant’s conduct. They considered the content of the letter to be tantamount to blackmail. She also gave evidence that her father also telephoned Bud Harper to tell him about the email and that it had caused her distress. She forwarded a copy of it to Bud Harper later that day.

[163]On 31 May 2023, a further two letters were emailed by the Claimant: one to Debbie Davies and one to Martha Jones. These could be termed pre-action protocol letters [371][372]. On the same day, the Claimant also sent further emails to Bud Harper confirming that he was sending ‘slander/libel emails’ to four other members of staff and providing information on pre-action protocol [374].

[164]Advice was taken by the First Respondent on the content of the letters and it was determined that the first letter of 29 May 2023 was an attempt to extort and intimidate Martha Jones into withdrawing her statement against the Claimant, that it did not qualify for privilege, that it was a breach of the terms suspension and was an attempt to influence the disciplinary process.

[165]A decision was made to include this conduct into consideration of the allegations of misconduct.

[166]It was unclear to the Tribunal how this additional allegation was communicated to the Claimant but when giving live evidence the Claimant believed that this had been sent to him by email. Bud Harper was asked by the Tribunal how had this been communicated to the Claimant. Bud Harper assured the Tribunal a letter had been sent despite no such document being in the Bundle.

[167]A copy of that letter, and attachments, was subsequently produced on the morning of the fourth day, after the completion of Bud Harper’s evidence [838- 843]. As a result, we found that on 31 May 2023, Bud Harper had emailed the Claimant, confirmed the date of the adjourned hearing and that an additional allegation would be added to the existing allegations.

[168]In that letter the Claimant was informed that the First Respondent had received a complaint of communication by the Claimant to two members of staff, both of whom had been involved during the investigation and that the content of the communication would be considered; that the further allegation was of threat, bribery/blackmail extortion and intimidation, when he had been advised not to make contact with colleagues during his suspension. The email attached: a) the email from the Claimant to Martha Jones of 29 May 2023; b) the two emails send to Debbie Davies and Martha Jones on 31 May 2023; and c) a screenshot of a social media post showing the film character, John Wick, accepted by the Claimant to be an assassin who kills in a violent way [427] that included the words: ‘You know who you are!’ ‘I’m coming for you and the truth will soon be out!!’ ‘People will Provoke you until they bring out your ugly side, then play the victim when you go there.’ ‘FACE THE REALITY’.

[169]The Claimant was informed that at the hearing he would have the opportunity to provide an explanation to the allegations, that the allegations were serious and that if well-founded, sanctions could include summary termination for gross misconduct. The Claimant was advised that if he had additional evidence he would like considered at the hearing, that he should provide this in advance. He was again advised of his right to be accompanied. 5 and 6 June 2023: Disciplinary Hearing

[170]The disciplinary hearing reconvened and was heard over two days on 5 and 6 June 2023.

[171]The Claimant was again accompanied by his trade union representative. The hearing was again conducted by Bud Harper and it appears that the hearing was video recorded. Again, no transcript of the recording of the meeting was provided in the Bundle and as a result, very little of what was actually discussed at that disciplinary hearing was in direct witness evidence before us. The Tribunal found that the letter of 8 June 2023, that was subsequently sent to the Claimant confirming the outcome, likely reflected the matters discussed.

[172]In that regard, we found that at the June hearing, in relation to the new allegation the Claimant: a) had argued that the correspondence was a private matter within a legal framework; b) had provided evidence indicating his legal position to take the individuals to court for defamation; c) had provided evidence to indicate the necessary timeframe suggested to contact those concerned; d) had provided evidence to show he had previously attempted to resolve this issue in a manner within his suspension arrangements, which the Tribunal found was likely to be a reference to the emails that the Claimant had sent to Simon Murray in November 2023; e) had informed those concerned during an earlier preliminary hearing in these proceedings; f) provided evidence that the social media post was not aimed at witnesses in the disciplinary; and g) believed that as the email was sent ‘Without Prejudice’ would make it exempt from the disciplinary hearing.

[173]The Claimant also accepted in live evidence that at this hearing he had been able to put forward his defence to the allegations and also had the opportunity to raise concerns that Bud Harper had been both the investigating officer in relation to the additional allegation and disciplining manager. 8 June 2023: Dismissal

[174]On 8 June 2023, Bud Harper wrote to the Claimant confirming the outcome of his deliberations, that included his decision on both the original allegations and the last, new allegations relating to the correspondence sent in May 2023 to Debbie Davies and Martha Jones.

[175]In that letter, he accepted that procedures around initial concerns raised by staff that had resulted in the Claimant’s suspension and subsequent investigation had not been collected in a satisfactory manner; they had not been signed and should have been reported to someone more independent. He also accepted that Ieuan Bater’s investigation had been flawed as there had been little attempt to challenge anecdotal evidence and that the Claimant’s statement had not been signed. The letter also recognised the points of concern raised by the Claimant regarding his own appointment as disciplinary hearing manager, that Ieuan Bater had not been present during the disciplinary hearing to answer questions on the investigation, that initial complaints had been encouraged by Debbie Davies, taken over a short period of time, appearing ‘stacked’ and possibly taken in an inappropriate location (the pub) and that there was concern over video footage not being available.

[176]He also noted that the additional May letters were new allegations and should be regarded as a separate matter and possibly a new investigation.

[177]In relation to the initial allegations, he responded in brief to each point as follows: a) a written warning was given in respect of conduct towards female staff, a verbal warning was given in relation to his working relationship (as nine members of staff had indicated that they would no longer work with the Claimant and would refuse to work with him) a written warning was given as a result of his conclusion that the Claimant had deliberately denied colleagues and the First Respondent organisation access to the organisation’s social media accounts and breach of the social media policy; b) no disciplinary action was to be taken regarding his management of staff, despite his conclusion that the Claimant had conducted himself in an unprofessional and harassing manner with other staff, and no sanction was applied in relation to the Claimant’s role in financial spending as this was not considered to be an act of misconduct and no action would be taken in relation to financial management; c) Allegations in relation to not following protocol on outside trips was disregarded, as were allegations that the Claimant had been unable to focus whilst working face to face with service users.

[178]In relation to the new allegations, Ben Harper confirmed that he did consider them to be suitable to be included and that the Claimant had six days’ notice of the allegation. He found that the limitation periods for bringing defamation claims had not expired when the Claimant had sent the pre-action letters and that two months remained.

[179]With regard to the emails of 31 March 2023, he interpreted the contents of the letter to Martha Jones asking to cease and desist and the letter to Debbie Davies to stop lying, as asking them to change or withdraw their statements.

[180]With regard to the sending of the ‘Without Prejudice’ email to Martha Jones of 29 May 2023, he concluded that the Claimant had used intimidation and extortion towards her in threatening to reveal personal information, unless money was paid to him and that this was in order to intimidate her. He further dealt with the without prejudice nature of the letter and concluded that given that the First Respondent had received a complaint from her of feeling blackmailed and threatened, the content of the email would satisfy the exception to the without prejudice rule.

[181]It was his conclusion that the three emails constituted gross misconduct and made a decision to summarily terminate the contract of employment. The Claimant was offered a right of appeal. Disciplinary Appeal

[182]The Claimant confirmed he was appealing the outcome [386]. Later that day, the Claimant set out a more detailed letter of appeal [389]. He had concerns that any appeal would be heard by Isobel Sweet, one of the First Respondent’s trustees as she lived close to Debbie Davies.

[183]Isobel Sweet gave live evidence, which we accepted, regarding the limited number of trustees at the time of the Claimant’s dismissal that were available to deal with the appeal taking into account the size of the organisation, trustees that included Simon Murray, Ieuan Bater and Elly, all of whom were unable to sit on any appeal and that they were short on numbers with other trustees being unwell and two additional trustees being inexperienced and unwilling.

[184]The Claimant has challenged whether Isobel Sweet was biased and not independent as she had a personal friendship with Debbie Davies as well as a working relationship.

[185]We did find that there was a personal friendship between Isobel Sweet and Debbie Davies, as this was not disputed, Ms Sweet giving evidence that they would socialise every few months. She also candidly agreed that she did not consider it suitable for her to have been involved in the initial disciplinary investigation as this would have involved interviewing Debbie Davies but that had been undertaken by Ieuan Bater. She also agreed that she did not consider it suitable for her to have been involved in the initial disciplinary hearing but that had been undertaken by Bud Harper. She distinguished these aspects from her role at the appeal and did not accept that her role at the appeal gave rise to any conflict as that role involved and reviewing the decision to dismiss by Bud Harper. We found that this was a reasonable conclusion to have reached.

[186]On 6 July 2023, Isobel Sweet met with the Claimant and his trade union representative on 6 July 2023 by video call, Microsoft Teams. Unlike the disciplinary hearing, a copy of the appeal meeting notes were contained in the Bundle [407] and the Tribunal concluded that it was likely that these notes were a reflection of the matters discussed.

[187]At that meeting, the Claimant was given the opportunity to address the points that he had raised in his appeal letter. In relation to dismissal, the Claimant raised that the emails sent to Debbie Davies and Martha Jones was the only reason he was dismissed, that the letters had to be sent within a specified time and that he believed that these were not work-related and should not have been addressed at the disciplinary.

[188]Whilst Isobel Sweet’s evidence was confused as to what documents she had considered for that appeal, we found that she had read the Ieuan Bater investigation report and Bud Harper’s letter, as well as considered the Claimant’s appeal [388-393]. She also considered the points made at the appeal hearing on behalf of the Claimant.

[189]That decision was confirmed in her letter sent to the Claimant following the hearing and the Tribunal incorporates the contents of that letter by reference in which she confirmed that she upheld the decision to dismiss and that the dismissal with effect from 8 June 2023, stood [396-405].

[190]The Claimant claims that in August 2022, it was represented to him (in writing and orally) that funding was coming from the Home Office for Safer Streets project and that his contract would be extended. During the final hearing, the Claimant clarified that the remedy he sought in respect of this breach of contract claim, was damages for the underpayment of salary during the period of his suspension in the period from 1 April 2023 to 8 June 2023, when his employment ended.

[191]We found that the relevant contract in question was that in respect of his role as Outreach Project Manager [96]. This contract had been entered into on 13 July 2021 and was for 7 hours per week (2x3 hours face to face and 1 hour admin and development) during term times and casual during holidays. That specific contract provided that the employment would continue until at least 31 March 2022 dependent on continued funding.

[192]It appears that some funding had been granted for this post in 18 August 2022 [199]. There is no dispute that the Claimant’s suspension pay was based on all contractual income, including income for hours in respect of his role as Outreach Worker.

[193]Bud Harper in his own witness statement3 gave evidence that some funding had been received from the Ministry of Justice that enabled the First Respondent to continue maintaining the Claimant’s suspension pay that included pay for this post, but that this had expired by 31 March 2023. On that date, he had written to the Claimant to confirm that as his post of Outreach Worker was subject to funding, with no continuation of funding available, the role (and that of Sensory Room Manager) would no longer exist after 31 March 2023 [834]. We accepted that evidence.

[194]However, it appears the First Respondent found some funding to enable the First Respondent to continue running one Outreach session per week until the school summer holidays, which we took to be the middle of July 2023 [363]. The Claimant was continued to be paid for sessions delivered whilst he was suspended and as some sessions had been run in May, the Claimant was paid for 10 hours for the sessions that had been run.

[195]We were not persuaded that the Claimant had been promised that this particular contract would be extended beyond the expiry of funding. The Claimant did not draw the Tribunal’s attention to any document in writing that made such a promise or representation and we found that no such promise or representation had been made in writing.

[196]We did find that the Claimant and Debbie Davies did have a conversation in the summer of 2022 regarding this post and continued funding, as this had been reflected in her own notes prepared prior to the disciplinary hearing [279]. Those notes indicated to the Tribunal that she had told the Claimant that a grant had been awarded to run Outreach, that someone else would oversee the budget for the project although he would oversee delivery. 3 Harper Witness statement §34

[197]We were not persuaded that this was sufficient to amount to an oral promise intended to give rise to a binding agreement that the Claimant’s current contract would continue on the same terms as that were entered into in 2021. We further found that in any event the Claimant was provided with suspension pay based on the number of Outreach sessions that were in fact delivered based on funding sourced by the First Respondent. Submissions

[198]The Respondent relied on written submissions which for the benefit of the Claimant were read out. These are incorporated by reference in these written reasons.

[199]The Claimant complained that as the Bundle had not been disclosed, this had a substantial impact on his preparation of the case and that new evidence had been introduced. The Claimant raised a number of concerns in relation to his dismissal, discrimination and breach of contract complaints which we attempt to summarise here, although not in the order necessarily as raised by the Claimant.

[200]In relation to the dismissal: a) the Claimant submitted that the First Respondent had accepted that the process was flawed, they had HR resources and could have outsourced the disciplinary hearings. b) He argued that Simon Murray had not responded to him when he had sent him the draft pre-action letters in November 2022. c) He complained that no statements, obtained in the disciplinary investigation, had been signed with wet signatures. d) He submitted that the investigation as flawed and that Ieuan Bater had been given the incorrect information. e) He submitted that the without prejudice correspondence was permitted as he was issuing court proceedings, he had to give them the opportunity to respond under the CPR pre-action protocol and that if he had not sent the letters, he would have been out of time for his civil proceedings. f) He questioned that the First Respondent would not have known the date and time of the CCTV sought and that the dismissal was unfair as Ben Harper had made the decision despite wearing multiple hats. g) He questioned whether it had been right to introduce new evidence and submitted that it had not been as the police were involved and that the First Respondent should have waited until the police investigation had concluded. h) He complained that the complaints were all made at a time when he was on annual leave. i) He questioned the appeal process.

[201]He disputed that he had exaggerated his disability and questioned how the Respondents could comment on the disadvantage as they were not qualified in psychology or how it impacted on him. He spoke of how the school had not recognised his autism and how ADHD was not as recognised then as it was today. He reminded the Tribunal that 6 members of staff knew of his disability, including Bud Harper and that Debbie Davies accepted that she knew of his dyslexia and adaptations for University. He complained that Debbie Davies was aware of his mental health but never referred him to occupational health and made assumptions and put nothing in place to support him.

[202]He complained that no reasonable adjustments were ever made, that he had to go to the printer and print documents on yellow paper.

[203]In relation to his further discrimination complaints: a) He complained that he had been subjected to a disciplinary when complaints had been made against him, yet his complaints against others had been dealt with as a grievance. b) He complained that Martha Jones, Debbie Davies and April were female and that there had been no investigation into their conduct as they were female, whereas he was male. c) He complained that he was treated unfairly as he was a man – no female was suspended or investigated – just him as he was a male. d) He submitted that Martha Jones gained from his disability and benefitted from his dismissal as she took on she took on extra roles and Outreach and had an additional £3 for each session, that she had multiple opportunities to raise concerns that he had been inappropriate and report him to the police but she had not. He argued that she had not, as it hadn’t happened as alleged.

[204]In relation to time, he submitted that there were multiple acts leading to his suspension and that this amounted to a continuing act.

[205]Finally, in relation to the breach of contract he submitted that it had been confirmed to him by Debbie Davies that he would be the person overseeing the project and that when funding came in, his contract would be extended. He did not know reason why his contacted was not extended as he was suspended Conclusions Disability

Conclusions

[206]It is conceded that the Claimant had a disability of visual processing disorder as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about. Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

[207]The Tribunal concluded that the First Respondent could reasonably have been expected to know that the Claimant had the disability from around July 2020 as a result of the Claimant informing his line managers that he had a processing disorder and required documents printed on yellow paper.

[208]We also concluded that the Second Respondent could reasonably have been expected to know that the Claimant had the disability from at the latest, July 2022 and likely much earlier, as she was aware that the Claimant had the impairment of dyslexia, which we were satisfied was part of the Claimant’s processing disorder, that he had adaptive software on his laptop and that he had ordered yellow paper.

[209]It is accepted by the respondents that the First and Second Respondents applied the provision, criterion or practice (PCP) of sending emails on a white background and providing training documents on a white background.

[210]The Tribunal accepted that both PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant likely did struggle to process information that was against a white background, whether on printed paper or on electronic documentation. We take into account that substantial means more than minor or trivial and accepted the Claimant’s evidence, supported by his university assessments that yellow overlays would assist.

[211]We also concluded for the same reasons that the lack of an auxiliary aid, namely software that would allow for the conversion of the computer background to a yellow screen with black writing and/or text highlighted in yellow, put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the Claimant struggled to process information that was against a white background.

[212]Whilst the Tribunal concluded that the Claimant had exaggerated his difficulties, in that we did not accept that it was impossible for the Claimant to read without a yellow background, we did accept that the struggle to process information without such adaptations for this Claimant would be more than minor or trivial and would meet the definition of ‘substantial’.

[213]The question of whether the First and/or Second Respondent knew or could reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage, was the focus of our deliberation. a) We made clear findings that the First Respondent knew as early as 2020, as a result of the Claimant’s texts to his line managers, that he had both a processing disorder and needed yellow paper. b) We concluded as a result, that the First Respondent knew, or could reasonably be expected to know, of both the disability and the disadvantage in relation to documents printed on white paper from 2020. c) We also found that the Second Respondent knew from early in the commencement of the Claimant’s employment that he had dyslexia, a form of processing disorder, and that he had adaptive software on his laptop. We had also found that when the Claimant ordered yellow paper in July 2022, before the July 2022 training, that the Claimant required yellow paper. d) In those circumstances, we concluded that it could be said that she could reasonably be expected to have known of both the disability and disadvantage of documents printed on white paper and lack of adaptive software. e) We found that neither the First nor Second Respondent knew of the need to have emails on yellow background at any time prior to September 2022. We concluded that neither the First nor Second Respondent had knowledge of such a disadvantage until that date.

[214]We were therefore satisfied that the duty to make reasonable adjustments were triggered in relation to printed documentation and that it was reasonable for the First and Second Respondent to provide training materials with a yellow background at the July 2022 training session.

[215]However, we concluded that whilst the Second Respondent, and in turn, did fail to take those steps at the outset of the training this was rectified immediately. We repeat our findings in relation to what happened that day. We did not accept the Claimant’s evidence and preferred the evidence of Debbie Davies. We did not consider that the omission to give the Claimant training materials printed on yellow paper to be purposeful but an error likely arising as this was the first time since the Second Respondent had been working with the Claimant that he had sought documents on yellow paper. In those circumstances, we concluded that on that occasion the Claimant had not been substantially disadvantaged as he had training materials printed on yellow paper within minutes.

[216]Whilst we did accept that the Claimant was substantially disadvantaged if he needed to read electronic documents or messages without a white background, we did not conclude that the Claimant had in fact been disadvantaged during his employment at the First Respondent. The Claimant had given evidence that he had adaptive software, that he had been able to use such software during his employment with the First Respondent and that the licence for this had not expired until around August 2022, after which the Claimant was not in work.

[217]We concluded that neither the First nor Second Respondent knew of the need to have emails on yellow background or had knowledge of such a disadvantage at any time prior to September 2022.

[218]We therefore did not conclude that the First or Second Respondent had failed in any duty to make any reasonable adjustments of providing the computer software (brought against the First Respondent) or sending emails with a yellow background (brought against First Respondent and Second Respondent).

[219]The complaints of failure to comply with the duty to make reasonable adjustments therefore are not well-founded and is dismissed. Harassment related to disability (s.26 EqA) Direct disability discrimination (s.13 EqA 2010)

[220]Save for the allegation against the Third Respondent in relation to the without prejudice email, all complaints of harassment are also brought in the alternative as complaints of direct disability discrimination. We deal with the allegations in the order that they appear in the list of issues.

[221]In relation to the refusal to refer the Claimant to Occupational Health to obtain recommendations for adjustments for the Claimant’s disability of which they were aware (material in black text against yellow background and computer software) brought against the First Respondent, we concluded: a) that whilst the Claimant had not requested any referral to occupational health until April 2023, he had indicated he was seriously unwell and wanted a referral so that they could undertake a full assessment and to ascertain what reasonable adjustments were required. The claim of harassment fails on the facts as we did not find that the Respondent refused to refer the Claimant. Rather, the Claimant did not respond to the email sent by Bud Harper; b) The reason that the Claimant had not been referred to occupational health was because the Claimant had not responded to Bud Harper’s email. We concluded that there was nothing to suggest a non-disabled person would have been treated any more favourably in the same circumstances. The complaint of direct disability discrimination, in the alternative, was also not well-founded and was dismissed.

[222]In relation to the allegation that in June or July 2022, the Second Respondent belittled him at a training course for his failure to read documents which had not been prepared with the adjustments he required, we concluded: a) The claim of harassment failed on the basis of our findings that Debbie Davies had not in fact belittled the Claimant. As a result, the harassment claim was not well-founded and was dismissed. b) Likewise, whilst we had found that the documents had not been printed on yellow paper, this was insufficient in itself to reverse the burden of proof and simple failure to provide the documents on yellow paper was not claimed. c) An alternative claim of direct disability discrimination was also not wellfounded and was dismissed.

[223]In relation to the claim that on 21 August 2022 after the Claimant sent a text message to Debbie Davies saying he would not be in work for mental health reasons (which he says forms part of his disability), she responded “really this isn’t good Sam!!” (brought against First Respondent, we concluded: a) that whilst that comment did form part of her response, it was important that the message was read in its totality, both in terms of the overall context and that specific comment. The context had been a private text exchange started by the Claimant contacting Debbie Davies immediately after removing himself from a group Whatsapp after she had suggested all photographs be sent directly to the Claimant’s co-worker, Helena. The overall context also included her telling him to take time to relax. More significantly for the Tribunal was that the comment made was ‘This is really not good Sam if this is over the photos going to Helena, we all have loads and she needs then tomorrow’. We concluded that she was not telling the Claimant that it was not good that he was off work with mental health, but that he was reacting to her instructions to send the photographs to Helena. b) The Claimant gave evidence that he considered that this was linked to his visual processing as his mental health generally was linked to his visual processing. In answers to questioning, the Claimant gave live evidence that it was because the messages were not sent with yellow had had tipped him over the edge and whilst Debbie Davies’s suggestion had not been unreasonable, he believed her approach had been targeted and she would not have taken this action with anyone else. We struggled with this analysis. This was the Claimant’s phone, and how he received text messages and Whatsapp messages would be dictated by how he chose to adopt his own phone settings irrespective of how the message looked on the sender’s device. c) Whilst we recognised that the EHRC provides that ‘related to’ has a broad meaning, we found that the reason for the comment was not the Claimant’s disability but querying that if the reason for him suddenly going off was because she had suggested that the photos be sent to Helena. We concluded that this was Debbie Davies’ motivation and this could not be said to be related to disability. On that basis, even if the comment was unwanted conduct, it was not related to disability and the complaint of harassment was not well-founded and was dismissed. d) Likewise, whilst such a comment was sufficient to infer potential discrimination to reverse the burden of proof, we were satisfied that Debbie Davies’ comment was made because of the Claimant’s reaction to her instruction and not because of the Claimant’s disability of visual processing disorder or indeed any symptoms arising as a result of that disorder. The alternative claim of direct disability discrimination was also not well-founded and was dismissed.

[224]In relation to the complaint that on 3 August 2022, Debbie Davies sent an email to Joanne Markham at the Police and Crime Commissioner’s Office which was blind copied to the Claimant, which unfairly blamed the Claimant (by implication not directly by name) for not responding to an earlier email and was not sent on a yellow background, we concluded that: a) Debbie Davies did not know that the Claimant required emails with a yellow background and it was not her or the First Respondent’s practice to send emails with coloured backgrounds. We did not conclude that sending the email without a yellow background was intended to cause the Claimant stress and anxiety. We concluded that her motivation had been to clarify the position with the funder and to inform the Claimant. Even if it could be said to imply blame or criticism of the Claimant, this was not related to disability irrespective of whether it was unwanted conduct. The claim of harassment therefore is not well-funded and is dismissed. b) Whilst sending an email without a yellow background and the implication of criticism would be sufficient to infer discrimination to reverse the burden, we were persuaded by Debbie Davies’ evidence that she was acknowledging facts and that she had not placed a yellow background on the email as she did not know of this requirement at that time. We were satisfied that the reason for treatment was not because of the Claimant’s disability and a claim of direct disability discrimination was also not well founded and was dismissed.

[225]In relation to Debbie Davies, on 22 August 2022 sending the Claimant an email when he was absent on holiday relating to an incident involving a young person on a trip and which caused the Claimant stress and anxiety. The Claimant complains about the content of the email and that 2R sent it when she knew he was going on holiday, would cause distress and knew there was a grievance about her to be discussed when he got back. The email was also not sent on a yellow background; (brought against the First Respondent; We concluded: a) We considered the content of the email and look at whether the conduct itself is related to disability. Again, we noted that ‘related to’ has a broad meaning but even if the email may have caused the Claimant distress, we do not look at whether the effect of an act is linked or related to disability, we look at the act itself and did not conclude that the conduct itself related to disability. The claim of harassment related to disability is not wellfounded and is dismissed. b) On the same basis, we did not conclude that the act was because the Claimant was disabled. We concluded that there were no facts from which we could find or infer discrimination and the claim of direct disability discrimination is also not well founded and is dismissed.

[226]In relation to Martha Jones taking the Claimant’s without prejudice email to Bud Harper and the Claimant was dismissed because of it (brought against the First Respondent and Third Respondent,) we concluded that: a) Whilst this was unwanted conduct, the Claimant clearly did not want Martha Jones to take the email to the First Respondent or for it to result in his dismissal, and even if it did create the requisite statutory environment for the Claimant, on no basis could it be said that the conduct related to disability. Martha Jones was aware that the Claimant had processing issues but taking into account she had not been involved in any of the Claimant’s concerns regarding or managing his disability, we concluded that her motivation was to get her employer to assist in dealing with his contact with her. This was in no way related to the Claimant’s disability and on that basis, any claim of harassment related to disability was not well-founded and was dismissed. Victimisation (s.27 EqA 2010)

[227]The Tribunal concluded that in telling the Second Respondent, in the training session in July 2022, that the training documents were not provided on a yellow background, the Claimant was effectively complaining to her about a failure to comply with the duty to make reasonable adjustments and that this was capable of amounting to a protected act under s.27(2) EqA 2010.

[228]We had not found proven any of the other protected acts relied on. We had not been persuaded and had not found that the Claimant had undertaken any protected act on 10 June 2022, 10/11 July 2022 or on 21 August 2022. We had found that on none of these occasions had the Claimant made any allegations (whether expressly or impliedly) of contravention of the Equality Act 2010 and that it could not be said that he had done anything in connection with the Equality Act 2010 at these times.

[229]Notwithstanding our conclusion that the Claimant had undertaken that one protected act at the July 2022 training however, we were not persuaded that the Claimant had proven a prima facie factual case that Debbie Davies had, around 26 to 31 August 2022,and when the Claimant was absent on annual leave, canvassed/ attempted to persuade other members of staff to make and/or support formal complaints against the Claimant.

[230]We had found that whilst she had spoken to staff about the Claimant’s conduct in the context of being asked to do so by Bud Harper, and we had also found that she had spoken to staff at the Provision night when they had approached her about the Claimant, this did not amount to her canvassing or attempting to persuade other members of staff to make or support formal complaints.

[231]On that basis that complaint of victimisation was not well-founded and did not succeed.

[232]In relation to the allegation that the Third Respondent, Martha Jones, taking his without prejudice email to Bud Harper and the Claimant was dismissed because of it, was an act of victimisation (brought against the First Respondent and Third Respondent,) we concluded a) Again, that there was no evidence from which we could find or infer that the reason Martha Jones took the email to the First Respondent was because the Claimant had undertaken the protected acts (or indeed any of the acts relied on). This allegation made no sense and indeed, the Claimant appeared to retract this allegation, indicating he misunderstood, although did not formally withdraw it.

[233]For the avoidance of doubt, we concluded that Martha Jones’ actions was wholly unrelated to the protected act and this complaint too was dismissed. Harassment related to sex (s.26 EqA 2010) Direct sex discrimination (s.13 EqA 2010)

[234]The Claimant brings a number of claims of direct sex discrimination complaints and, in relation to one of those complaints related to the actions of Martha Jones, pleads this in the alternative as a complaint of harassment related to sex.

[235]On a general level, we understand that the Claimant is unhappy that whilst his complaints regarding Debbie Davies and Martha Jones were treated either informally or as a grievance, the complaints against him were treated as a disciplinary matter. We start by saying however that it is important to remind ourselves that the concept of direct discrimination is about ‘less favourable’ treatment rather than different treatment and context is everything.

[236]On a comparison of cases for the purposes of a direct discrimination complaint, ‘there must be no material difference between the circumstances relating to each case’4. The comparison must effectively be like for like and in the same position in all material respects as the Claimant, save only their sex. The relevant circumstances include those that the Respondent took into account when deciding to treat the employee as they did and this can be done by providing evidential material from which an inference can be drawn that the Claimant was treated less favourably than he would have been treated if he were female.

[237]The Claimant has relied on Debbie Davies, Martha Jones and April as his actual comparators. We concluded that none were actual comparators under s.23 EqA 2010 as: a) Whilst the Claimant had made a number of repeated complaints against Debbie Davies, complained about Martha Jones of peg feeding without proper training, and complaints had been made against April regarding the canoe trip, the nature of these complaints were materially different to the complaints that had been brought against the Claimant, and which significantly for the Tribunal, included allegations of inappropriate behaviour; b) The Claimant had allegations made against him by a number of staff, Debbie Davies, Martha Jones and April had not.

[238]We recognised that comparison in the way that they had been treated and the way the Claimant had been treated, did have an evidential role to play but we considered that the difference in the substance of the allegations and the amount of individuals complaining resulted us drawing no inference that the Claimant had been treated less favourably than he would have been treated had he been female.

[239]In relation to the complaint of suspension and taking disciplinary action against him (brought against the First Respondent,) we concluded: a) The reason that the Claimant had been suspended and had disciplinary action against him was because of the amount and nature of allegations made by coworkers regarding his behaviour, including of inappropriate behaviour. We did not consider that there were any facts from which we could find or infer discrimination because of sex. The Claimant has not 4 S.23(1) EqA 2010 discharged the burden of showing a prima face case and we were not persuaded that the Claimant was suspended and had disciplinary action because he was male. This direct sex discrimination complaint was not well founded and was dismissed.

[240]In relation to the complaint that around 26 to 31 August 2022, and when the Claimant was absent on annual leave, Debbie Davies canvassed/ attempted to persuade other members of staff to make and/or support formal complaints against the Claimant (brought against First and Second Respondent, we concluded that: a) The Claimant has not proven facts that this did happen. We would repeat our earlier findings and conclusions. We were not persuaded that the Claimant would have been treated any differently if he had been female in the same circumstances. The complaint was not well-founded and is

[241]In relation to the complaint that Martha Jones made false allegations against the Claimant which in part formed the basis of the disciplinary allegations against him (including that he had spoken to her inappropriately, that he had touched her inappropriately, and that he was overbearing in his behaviour towards her) (brought against the First Respondent and Third Respondent), we concluded that: a) The Claimant has not established a prima facie case that Martha Jones made false allegations. He had not persuaded us that Martha Jones had any motivation for making false allegations, which the Claimant had suggested included an increase in pay of £3 per week and/or not wanting to be managed by a man. Some of her allegations had some support from other staff although we accept that such support was not tested in this hearing and likely was not tested at the original disciplinary hearing. However it could not be said that the Claimant had not proven on balance of probabilities that the allegations were ‘false’ in the sense that she had fabricated them. b) We further concluded that Martha Jones had made the allegations because she felt that the Claimant’s conduct, both verbal and physical, made her uncomfortable and she did not consider them appropriate, not because the Claimant was male. The Claimant has suggested that Martha Jones’ allegations were because of his sex, as she was female making accusations about a man and that he been female, she would not have made such accusations. We were not persuaded by that comparison. c) Whilst we accept that the Claimant denied the allegations, he has to persuade us that the allegations were false. He did not. d) On that basis, this complaint of direct sex discrimination was not wellfounded and is dismissed.

[242]In relation to the complaint that the Third Respondent took the Claimant’s without prejudice email to Bud Harper and the Claimant was dismissed because of it (brought against First Respondent and Third Respondent), we concluded: a) Whilst this conduct was clearly unwanted, it was not related to sex. The conduct relied on as harassment must be related to the protected characteristic and again, context is considered. We concluded that the fact that the Claimant was male, did not form any part of the ground or reason for Martha Jones’ actions in taking his letter to Bud Harper. Any complaint for harassment related to sex is therefore not well-founded and is b) In the alternative, we concluded that the reason for the treatment was because Martha Jones had received a threatening email that she reasonably concluded included an attempt by the Claimant to blackmail her. This was wholly unrelated to the Claimant’s sex. The Claimant has not proven facts from which we could find or infer discrimination because of the Claimant’s sex; because he was a man. The claim of direct sex discrimination was also not well founded and was dismissed. Time limits

[243]We deal with time limits briefly and whether the discrimination and victimisation complaints were made within the time limit in section 123 of the Equality Act 2010. The Claimant entered into early conciliation on 27 September 2022 which ended on 8 November 2022 and he filed his ET1 on 21 December 2023. As a consequence of the early conciliation provisions and the dates that the Claimant entered early conciliation we concluded that any acts prior to 10 August 2022 were out of time,

[244]All claims were in time save for the failure to comply with the duty to make a reasonable adjustment at the July 2022, training day which, in isolation, would have been not brought within time. Unfair dismissal

[245]In applying our findings to the issues, the Tribunal initially needed to consider the reason for dismissal. The Claimant has contended that there was an agenda or pre-determined decision to dismiss the Claimant for unspecified reasons. The First Respondent has contended that the reason for dismissal was conduct that the Claimant was dismissed as the Respondent believed that he was guilty of gross misconduct in relation to the sending of and content of the letters of 29 and 31 May 2023 to Martha Jones and Debbie Davies.

[246]Whilst at his suspension meeting, Simon Murray had said to the Claimant “when you come back or if you come back”, we concluded that comment made was no more than warning the Claimant that the allegations could result in his dismissal and were not persuaded that this undermined the First Respondent’s stated reason for dismissal. We were not persuaded that there was an agenda or prejudged decision to remove or dismiss the Claimant for unspecified reasons, despite our concerns at the process that the First Respondent had adopted in managing the allegations initially made against the Claimant that lead to the disciplinary investigation and initial disciplinary hearing in May 2023.

[247]During the final hearing, the Claimant had referred to Bud Harper being handed a grenade and that he had to sack him no matter (or words to that effect). We considered that if anyone had handed Bud Harper a grenade to dismiss him, as the Claimant had termed it, he had himself in sending the letters in May 2023. We were persuaded by the evidence of Bud Harper, supported by the detailed letter outlining the reason for dismissal, that the reason for the Claimant’s dismissal was his conduct in sending and content of the three emails in May 2023; two to Martha Jones on 29 and 31 May 2023 and the one email to Debbie Davies on 31 May 2023 which bud Harper concluded was an act of gross misconduct.

[248]The Tribunal concluded that the Respondent had proven that the reason for dismissal was the Claimant’s conduct.

[249]Conduct is a potentially fair reason for dismissal (s.98(2) Employment Rights Act 1996) and so we then considered overall fairness in the context of BHS v Burchell requirements and whether the First Respondent acted reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant. We deal with these in reverse order, dealing first with the investigation before moving on to the grounds and the belief

[250]Whilst the Claimant has identified specific points of unfairness, many of these related to the investigation and disciplinary concerns that triggered the initial investigation. Whilst we deal with them, we deal with them in brief as ultimately we concluded that these concerns did not impact at all on the ultimate reason for dismissal and in turn fairness or otherwise of that dismissal.

[251]We did consider whether the steps leading up the Claimant sending the 29 May 2023 letter and 31 May 2023 letters were relevant. We concluded that in determining fairness, they had little effect. If the Claimant had been dismissed for the original disciplinary allegations, based on the investigation that had been undertaken by Ieuan Bater, our decision on the dismissal may have been very different, but the Claimant was not in fact dismissed for those allegations and we were satisfied that the original investigation played little to no part in the eventual reason to dismiss or the specific process resulting in the dismissal. In brief, those concerns related to the following: a) No evidence in support of the allegations; it was all verbal/witness statements were not signed: We concluded that whilst much of the evidence in support of the initial allegations was witness evidence from staff, we agreed that there was no evidence to suggest that these employees did not make these complaints and that verbal evidence is still evidence. It could not be said that there was no evidence in support of the allegations. A number of staff had raised concerns regarding the Claimant’s conduct and had committed to either putting such concerns in writing or to orally communicating such concerns. Where there are issues relating to relationships and conduct of such relationships, it is rare that there is documentary evidence to support or corroborate such evidence. That many of the allegations were verbal did not mean that an employer cannot take action on such allegations. This did not lead to unfairness and did not impact on the general decision to dismiss. b) Ieuan Bater had not been present for the whole time and the Claimant was only permitted to email him leading to the Claimant and his TU representative not having the opportunity to put their whole case: We concluded that Ieuan Bater played no role in the enquiry in June 2023 in relation to the additional allegations following the May 2023 letters and would not have been able to assist. This did not lead to unfairness to the Claimant in relation to the dismissal. c) Relevant CCTV evidence was not kept by Bud Harper: This was wholly irrelevant to the fairness of the eventual dismissal. In any event, in terms of process generally, the Claimant did not respond when asked, to confirm the date and time of the incident. d) All of the complaints were raised when the Claimant was on annual leave and offences were stacked against him: We had found that employees had started to raise concerns in the week after the Maitland Park Festival and that coincided with the Claimant commencing his annual leave. We did understand how the Claimant might have felt when, whilst he had been on holiday, these disciplinary allegations unfolded and he was faced with them on his return. We accept that it must have been a difficult time for the Claimant but we concluded that this did not result in unfairness in his eventual dismissal. We did hold some concern that once complaints were made by staff about the Claimant’s behaviour, it was seen as an opportunity to address other more performance issues, which were inappropriately added as a disciplinary allegation. However, Bud Harper either disregarded or refused to issue any disciplinary sanction in relation to those additional matters. This did not lead to unfairness to the Claimant in relation to the eventual reason for dismissal. e) Outcome was prejudged: We have dealt with this earlier in our conclusions in relation to the reason for dismissal. We would repeat those conclusions and confirm that we did not conclude that the outcome was prejudged.

[252]The Tribunal concluded that it was the immediate steps leading up to the decision to dismiss, that were relevant. These were the steps taken by Bud Harper after he had received the 29 May 2023 letter and 31 May 2023 letters. We considered the investigation, and the range of reasonable responses test applies to the scope of the investigation undertaken by the employer as it does the dismissal decision (Sainsbury Supermarkets plc v Hitt).

[253]The Claimant has argued that it was unfair of Bud Harper to have introduced new evidence at the disciplinary hearing (i.e. the “without prejudice” email). At the hearings on 5 and 6 June 2022, the Claimant did not dispute the sending of the email of 29 May 2023, and had the opportunity to argue that the ‘Without-Prejudice’ letter should not have been in evidence . Bud Harper considered that argument but rejected this on the basis that it fell within the exemptions to the without prejudice rule. We concluded that this was a reasonable decision to have made in the context of threatening letters to a young member of staff. Permitting this evidence and was not substantively or procedurally unfair.

[254]We also concluded that it was not unreasonable for the First Respondent to have determined to deal with this new, additional issue at the forthcoming adjourned disciplinary hearing. The new allegations were introduced without delay and the Claimant had the opportunity to consider the allegations in advance of the hearing and deal with the allegations at the hearing accompanied by his representative. This did not lead to substantive unfairness or procedural unfairness to the Claimant.

[255]The Claimant has argued that the hearing was flawed, as Bud Harper was not independent as had raised his own concerns about the Claimant’s conduct and had already held one disciplinary hearing with the Claimant in May. Whilst Bud Harper may very well have held views about the Claimant’s general job performance, this would not be unexpected in a small organisation and we concluded that taking into account the size of the organisation, in particular the size of the trust board, we did not consider it unreasonable for Bud Harper to have been involved in determining the disciplinary allegations against the Claimant. We did not consider it a reasonable step for a charitable organisation to have out-sourced the decision-making on an internal process involving it’s staff. In any event, he had not been involved in the specific allegations that led to the Claimant’s dismissal, and in the context of our conclusion that there was no agenda to dismiss the Claimant, his involvement did not lead to unfairness.

[256]The Claimant has argued that his dismissal appeal was not heard and that he was sent a letter some 7-8 weeks later saying he was not allowed to appeal, that Isobel Sweet was not an appropriate person. We found that the Claimant was permitted to appeal and did raise an appeal which was heard in July 2023. This had been conducted by Isobel Sweet and that whilst she did have a personal freindship with Debbie Davies outside of the workplace, we were not persuaded that in the circumstances of her review of the decision to dismiss the Claimant for his conduct in sending the May 2022 letters, her involvement in or her conduct of the appeal process led to unfairness to the Claimant.

[257]At that appeal he was accompanied by his trade union representative and he had a further opportunity to raise concerns, concerns that included those relating to Bud Harper’s involvement and whether ‘without prejudice’ correspondence should be considered and reached a reasonable conclusion on both.

[258]The Tribunal concluded that the First Respondent had carried out a fair and reasonable investigation which would reach the standard required of a reasonable employer.

[259]Turning to the issue of whether the First Respondent’s belief was held on reasonable grounds, we concluded that it was. The Claimant had not disputed the sending of the letters. We concluded that it was reasonable for Bud Harper to believe that the 29 May 2023 was intimidating in nature and that he had used extortion in threatening to reveal personal information, unconnected with the allegations she had made, unless money was paid to him. This was our conclusion irrespective of the legal test of what is or is not ‘blackmail’ (whether criminal or otherwise) and irrespective of whether the CPS saw it appropriate to charge the Claimant.

[260]We also concluded that it was reasonable for Bud Harper to believe that the further emails of 31 May 2023 were also threatening despite Simon Murray having refused to forward on the pre-action protocol letters in November of the previous year. He had taken into account the Claimant’s arguments that he needed to instigate action within 12 months but had reasonably interpreted that the pre-action protocol letters as asking both Martha Jones and Debbie Davies to change or withdraw their evidence against him in the disciplinary proceedings.

[261]On the issue of genuineness of the First Respondent’s belief, did the Bud Harper reasonably believe that the Claimant committed the misconduct, we find that he did.

[262]Finally, on the question whether dismissal was a fair sanction, could a reasonable employer have decided to dismiss for this conduct, we concluded that they could. Although the Claimant had been employed since 2016 without any previous warnings, we concluded that it was reasonable to treat his conduct, in sending both the 29 May 2023 letters and 31 May 2023 letters, as a very serious matter just that it amounted to gross misconduct warranting dismissal.

[263]We were therefore satisfied in overall terms that the BHS v Burchell test was made out and that there were grounds, following a reasonable investigation to lead to a genuine belief that the Claimant had been guilty of the gross misconduct alleged.

[264]As regards procedure taken in relation to the dismissal of the Claimant, we were ultimately satisfied that the investigation, in terms of the overall process adopted by the First Respondent, fell within the range of reasonable responses and was a sufficiently independent investigation. The Claimant was notified in a letter on 31 May 2022, in advance of the adjourned disciplinary hearing of the allegations against him; he was advised he could bring a companion; a hearing was held at which he was able to put his case; he was informed of the outcome and his right of appeal.

[265]The Tribunal’s conclusion was that the dismissal was not unfair and the Claimant’s claim for unfair dismissal should be dismissed.

[266]The Tribunal concluded that this was a claim that arose or outstanding when the Claimant’s employment ended and we therefore had jurisdiction to determine it.

[267]The Tribunal was not persuaded however that the Claimant was informed in writing that his contract would be extended. We had not found any evidence to support this contention.

[268]The Tribunal was also not persuaded that Debbie Davies had verbally promised the Claimant that his contract would be extended. In any event, even if that could be determined to be an oral promise intended to create a binding contract, there was no certainty as to terms and no promise that any contract would be extended on the same terms that the Claimant had previously enjoyed. Claimant did not in fact suffer a loss in pay

[269]The claim of breach of contract was not well-founded and was dismissed.