Employment Judge Lloyd-LawrieIn person for claimantMr Howells (instructed by Counsel) for respondentDate 27 October 2025
JUDGMENT
The Claimant was not disabled, by way of mental impairment, for the purposes of these proceedings. The Claimant was disabled, by way of physical impairment, as accepted by the Respondent and thus his claims for disability discrimination, as related to his back issue, continue. The Claimant’s request to add claims under section 44 of the Employment Rights Act are refused.
REASONS
[1]The hearing had been listed to consider three matters;(i) whether to allow the Claimant to amend his claim,(ii) whether the Claimant was disabled for the purposes of section 6 of the Equality Act 2010 (“Act”) and(iii) for further case management.[2]Due to needing more time to consider matters one and two, it was decided that it would be better for my reserved judgement to be issued before further case management was undertaken. There is now a case management hearing listed for 10am on 25th June 2024. Notice of hearing will come out separately. I will deal with the issue of disability first.[4]At the start of the hearing, Mr Howells conceded that the Claimant’s back condition amounted to a physical impairment and that the Claimant was disabled by this in the time to be considered namely 15/12/2017- 12/05/2023.[5]The issue in relation to disability in front of me was therefore whether the Claimant was disabled by way of mental impairment in the period the alleged discrimination was alleged to have occurred over. I considered the Claimant’s disability impact statement and his oral evidence. I also considered the documents in the preliminary hearing bundle to which my attention was drawn and in the 2 sets of medical evidence that I was provided by the Claimant, both before and during the hearing.
Law
[6]Section 6 of the Act, which deals with the definition of “disability”, provides as follows: “6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”[7]With regard to the constituent elements of that definition, Part 1 of Schedule 1 of the Act provides as follows in relation to “long-term effects”: “2 Long-term effects(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”[8]Section 212 of the Act provides that, ““substantial” means more than minor or trivial”.[9]Paragraph 12 of Schedule 1 of the Act notes that, “In determining whether a person is a disabled person, [a Tribunal] must take account of such guidance as it thinks relevant”. In that regard, the Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (“the Guidance”) under S.6(5) of the Act.[10]The Appendix to the Guidance sets out illustrative and non-exhaustive lists of factors which, if experienced by a person, it would be reasonable and not reasonable to regard as having a substantial adverse effect on normal day-to-day activities. The list of factors which might point to a substantial adverse effect includes the following:• “persistent general low motivation or loss of interest in everyday activities” and• Difficulty in getting dressed, for example, because of physical restrictions, a lack of understanding of the concept, or low motivation[11]The EAT said, in Goodwin v Patent Office [1999] ICR 302, that the words used to define disability (in what was then section 1(1) of the Disability Discrimination Act 1995, which is now section 6(1) of the Act) require tribunals to look at the evidence by reference to four different questions (or “conditions”, as the EAT termed them):• Did the claimant have a mental and/or physical impairment? (the ‘impairment condition’)• Did the impairment affect the claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’)• Was the adverse condition substantial? (the ‘substantial condition’), and• Was the adverse condition long term? (the ‘long-term condition’). These four questions should be posed sequentially and not together.[12]The burden of proof in establishing disability lies on a claimant, but there is no onus on a claimant to adduce medical evidence to establish each of the four conditions comprising the test set out in Goodwin.[13]In Ministry of Defence v Hay [2008] ICR 1247, the EAT held that an “impairment” could be an illness or the result of an illness, and that it was not necessary to determine its precise medical cause. The statutory approach, said the EAT, “is self-evidently a functional one directed towards what a claimant cannot, or can no longer, do at a practical level”. The EAT further confirmed, in J v DLA Piper UK LLP [2010] ICR 1052, that it is not always essential to identify a specific “impairment”, if the existence of one can be established from the evidence of an adverse effect on the claimant’s abilities.
Findings
[14]I set out my findings relevant to the issue of disability, reached on the balance of probability, below. Mental Impairment[15]The Claimant in his disability impact statement defined his claimed mental impairment as “stress/ anxiety/PTSD”. Under cross examination, he conceded that he had received no formal diagnosis of PTSD but that his counsellor had said that she thought he met the definition for it and thus referred him to an online resource for the same. As stated above, the lack of an ability to identify a specific impairment is not a bar to a person being found to have a mental impairment.[16]The Claimant in closing submissions, asked that if I found that he had not provided enough evidence to find that he had a mental impairment, that I then order an expert to be instructed, rather than make a finding. As pointed out in the hearing, the case was listed for hearing today to deal with the issue of disability. Directions had been issued giving dates for service of documents relating to disability in January 2024. As it was, the Claimant served some medical documents 3 days before hearing and some others during the hearing. The question of disability is a legal, not a medical one under the Equality Act. No request had been made prior to hearing for consent to obtain an expert report, nor did I consider that one was necessary based on medical evidence being available. I therefore advised that the matter had been heard and that I would be making a decision on disability after the hearing.[17]The case of J v DLA Piper UK LLP, cited above, is also authority that the correct approach to the issue of impairment in cases involving mental disability is still the cases of College of Ripon and York St John v Hobbs [2002] IRLA 185 and McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498. These state that there are distinctions between clinical depression and reactions to stress or other adverse circumstances producing similar symptoms.[18]The Claimant’s medical records show recordings of “stress at work” and set out, in general, the current stressors that the Claimant was dealing with at that time, including both work and private life issues. Further, the Claimants Occupational Health reports that 28/08/2020 and 17/03/2021 both indicate that the opinion of those medical professions was that the Claimant had no medical psychological condition but instead had stress as a response to the way he perceived he had been treated at work. Both reports highlighting his ability to manage other aspects of his life as justifications of their findings.[19]The Claimant accepted under cross examination that he broadly agreed with the findings of the occupational health doctors.[20]Looking through the Claimant’s GP notes, all refences to stress consistently demonstrate that the Claimant was having reaction to what he perceived to be adverse circumstances rather than having an underlying mental impairment that was triggering his feelings of stress. It is of course the case that stress at work can trigger a mental impairment or can be the cause of the impairment, however, from the medical evidence in front of me, provided by both parties, it is clear that this was not the case for the Claimant. Therefore, in line with the case law cited, the Claimant did not have a mental impairment during the period to be considered.[21]If I am wrong in that finding, I go on to consider the impact on the Claimant’s day to day activities. Impact on day-to-day activities[22]In terms of the impact of the Claimant's conditions on his day-to-day activities, his oral evidence was, at times, contrary to his written evidence. The Claimant conceded in oral evidence that if talking about eating, sleeping, food shopping and playing with his children was what was being considered, he could do those things. This is in line with the entries in the Claimant’s GP evidence and in the Claimant’s Occupational Health records. For example, an entry of Dr Coleman on 10/06/2020 has a comment “feels generally confident he can win his case and not depressed. Keeping to a routine- seeing children, exercising. Just doesn’t feel that he can go to work whilst this is going on. In the report of Occupational Health Physician Dr Thomas, it is said “He clearly has very high levels of self-worth, is able to enjoy life events such as spending time with his children and it is only when he thinks about work when he starts to feel stress. He feels anxious when thinking about the amount of work he has to do regarding the case but does not have any pathological anxiety. He seems to be functioning reasonably well in day to day life, again most notably when not thinking about work. He is not on any psychological treatment and I do not feel any would be indicated at this point”.[23]I therefore find that the Claimant was not suffering a substantial impact on his day-to-day activities in the relevant period as the evidence, which he agreed when put to him, demonstrated that he could carry out normal dayto-day activities. In submissions, he did state that it was harder for him to do so that others in the hearing room, however, this was not said in evidence and his answers to cross examination demonstrated an ability that was far in excess of that set out in his disability impact statement. Conclusions on disability[24]Consequently, I did not consider that the Claimant was disabled by way of mental impairment for the purposes of these claims. Potential Amendment/Clarification of claim[25]The Claimant issued his ET1 on 18/09/2023. He did tick the box of “I am making another type of claim which the Employment Tribunal can deal with”. The Claimant wrote in his claim that although he was not formally represented by legal council, he had had helpful advice from his high street solicitor. The Claimant included a summary of his points stating at the end “this unfair dismissal is the main trigger for this claim. I will not list every unmitigated impropriety contributing to the deterioration of our relationship on this form. The list above I hope is sufficient to lodge this claim, but is far from exhaustive. The evidence bundle for a hearing will be voluminous and unassailable”. I find that no health and safety detriment claim was included in his original ET1 claim.[26]The Claimant attended a case management hearing with Employment Judge Harfield on 01 December 2023 where she clearly had spent a great deal of time ascertaining what claims that the Claimant was trying to bring in order to write the list of issues. The Claimants Particulars of Claim originally ran to just less than 1.5 sides of A4. The list of issues prepared by Judge Harfield ran to over 10 sides of A4 and included the specific claims that she would have been told by the Claimant during that hearing from hearing what he was complaining of. No section 44 Employment Rights Act claim was included. That list of issues was sent to the parties on 08 December 2023.[27]The Claimant on 12 February 2024 sent to the Tribunal an amended list of issues. This included a section 44 claim for health and safety detriment.[28]The Respondent provided an updated ET3 on 11 March 2024 dealing with the claims as set out in the case management hearing and providing all, bar the section 44 claim, of the Claimant’s amended list of issues.[29]Employment Judge Mason held a further preliminary hearing on 21 March 2024. During this hearing, it was ordered that some of the Claimant’s claims were unclear and that therefore, the Claimant should be given a further opportunity to set out his claims. Further, it was found that the section 44 claim may need an application to amend and a public hearing would be listed to hear that.[30]The Claimant then provided further and better particulars which lead to a third draft of the Respondent’s grounds of resistance being prepared and submitted to the Tribunal.[31]The Claimant’s primary position is that in line with Selkent Bus Company Ltd v Moor 1996 ICR 836 the amendment he sought was a relabeling and therefore was not a new claim. The Respondent took the opposing position.[32]I find that the section 44 detriment claims were not previously before the Tribunal. I find that they were not before the Tribunal until 12 February 2024. Although the dates of the detriments are not set out, the last date that they could have applied would have been 12/05/2023, as that was the date that they were submitted. The claims therefore are vastly out of time.[33]In line with Vaughan v Moality Paternerhip 2021 ICR 535, EAT, I have kept at the forefront of my mind at all times the need to balance the injustice and hardship in allowing or refusing the application.[34]I find that the nature of the amendment means that a new cause of action will be added. I find that the section 44 claim being advanced is very much out of time and I find that the Claimant was already afforded an opportunity to orally explain his claims to an Employment Judge who took great case in setting out in legal terms what his claim was, after he had pointed out his difficulties in doing so in his ET1 form. I find that the Claimant did not explain the health and safety claim as part of that. I find that the Claimant received the case management order with the list of issues on 8 December 2023.[35]The Claimant did respond with any changes to the list of issues in time as he responded on 12 February 2024.[36]I however find that the Claimant has not clarified claims already made but has sought to add a new claim. I find that the Claimant could and should have included all claims on his ET1. He was given the opportunity to have a preliminary hearing for case management where he then was allowed to orally describe his claims. This, I find, alleviates the difficulty in not having a legal representative as the Employment Judge labels the claims based on the oral submissions of the Claimant.[37]I find that although he replied to the Case Management Order in time, the hardship to the Respondent in allowing the amendment, which would involve, I accept, a fourth draft of their grounds of resistance, is greater than that to the Claimant who has claims linked to detriment for protected disclosures which, in part, deal with the same or similar issues. I find that the Claimant should not be permitted to add claims under section 44 of the Employment Rights Act as these claims should and could have been made earlier in the proceedings and could have been made in time. I note that the Claimant did state that he had taken legal advice before submitting his claim, albeit that he was not formally instructed. I find that this is also relevant. Conclusion on the Amendment application[38]The Claimant’s section 44 claims do require an application to amend. That application is refused as the hardship to the Respondent outweighs the hardship to the Claimant in refusing the same.[1]By a claim received on 18 September 2023 the Claimant, Mr Jesse Lubran complains of unfair dismissal, discrimination on the grounds of disability, arrears of pay and other payments. In the section headed “Additional Information” the Claimant said that whilst at the time of lodging the appeal he is not yet formally represented by a qualified legal counsel and that he would certainly need to instruct solicitors to represent his case.[2]The Response referred to the need for further and better particulars of the claims and raises jurisdiction issues regarding claims of discrimination and/or wages. The Respondents say that the Claimant was dismissed for a substantial reason and that the claim for unfair dismissal is denied.[3]The Claimant submitted a partial response to the Respondents Grounds of Response saying that a full response to the assertions made by the Respondent can only be done at a full hearing. A Case Management Hearing was held on 1 December 2023 and a draft List of Issues was drawn up but was subject to any application to amend that may be required and dependant on any such application being granted. It was directed that the Respondent may provide an amended Response addressing the complaints as clarified. Following the Case Management Order the Claimant submitted a 16 page Response to clarity and confirm his Case Summary and any further matters. An Amended Grounds of Response dated 11 March 2024 was filed by the Respondent.[4]A further Case Management Hearing was held on 21 March 2024 where detailed Orders were made which included the Claimant being afforded a further opportunity to clarify his claims and directions given regarding whether the Claimant required an amendment to argue matters concerning health and safety under Section 44 of the Employment Rights Act 1996. It was ordered that there be a hearing in person to consider whether the Claimant required permission to amend his claim to rely on the health and safety complaints, and if so whether permission is to be given for the Claimant to amend his claim, and also whether the Claimant has a disability as defined in the Equality Act 2010 when the alleged discrimination happened in particular whether it was a physical or mental impairment as further set out in the Equality Act 2010.[5]The Claimant filed a Response to the Case Management Order regarding further information concerning the claims for public interest disclosure dated 18 April 2024 together with an application by the Claimant to amend the particulars of claim dated 17 April 2024. The Respondents filed further Amended Grounds of Response on 25 April 2024.[6]On 24 May 2024 a hearing took place and by a Reserved Judgment the Tribunal held that the Claimant was not disabled, by way of mental impairment, for the purposes of these proceedings. The Claimant was however disabled, by way of physical impairment, as accepted by the Respondent and thus his claims for disability discrimination, as related to his back issue, continue. The Claimant’s request to add claims under Section 44 of the Employment Rights Act were refused.[7]A further Case Management Hearing took place on 25 June 2024. The Claimant was represented by Mr Smith of Counsel and the Respondents by Mr Howells of Counsel. It was noted at the commencement of the hearing the Claimant had recently instructed solicitors. Set out in Section 25 of the Order were the complaints that the Claimant was making namely unfair dismissal; protected disclosure detriment; protected disclosure dismissal; direct disability discrimination; discrimination arising in consequence of disability; disability related harassment; and failure to make reasonable adjustments. It was further directed that the parties should circulate an agreed List of Issues.[8]Following a further Preliminary Hearing before Regional Employment Judge Davies on 7 April 2025 there was a proposed List of Issues drafted by the Respondents. It was agreed by the Claimant’s representative at the hearing commencing on 16 June 2025.[9]Although the case was listed for hearing on the basis of liability and quantum it was agreed with the parties that this hearing should proceed on the basis of liability only.[10]The hearing heard evidence from – Mr Jesse Lubran, the Claimant; a number of witnesses for the Respondent namely Martin Heuter the Claimant’s Health and Social Care Change Manager from 28 September 2018 to December 2021; Mr Nigel Brinn, Executive Director for Economy and Environment and Chair of the Claimant’s Appeal Hearing; Mrs Lynette Lovell, Director of Education and Children and Chair of the Claimant's Disciplinary Hearing; Mr Paul Bradshaw, Head of People Services; Mr Huw Dylan Owen (known as Dylan Owen), Head of Transformation Adult Services – Adult Social Care and Line Manager of the Claimant in August 2018 and September 2018; Ms Gemma Gabriel, Professional Lead, Human Resources Management and Development; Mrs Michelle Griffiths, Human Resources Business Partner for Powys County Council; Mr Robert Clive Pinney, Head of Legal and Monitoring Officer. Start of Employment with the Respondents[11]The Claimant commenced employment with the Respondents on 12 May 2003 in the role of Corporate GIS Technician within the Economic and Community Regeneration Directorate. Prior to commencing employment the Claimant had a significant back condition arising from an episode in 2001 where he strained his lower back. Since that time the Claimant has experienced intermittent bouts of back pain and sciatica with associated numbness in both legs. In paragraph 4 of the Judgment of the Tribunal on 24 May 2024 it was recorded that at the start of that hearing Mr Howells (Counsel for the Respondents) conceded that the Claimant’s back condition amounted to a physical impairment that the Claimant was disabled by this in the time to be considered namely 15 December 2017 to 12 May 2023.[12]The Claimant moved to the Social Care Directorate as a System Support Officer before he applied for and was appointed as Commissioning and Contract Support Officer. The Claimant spent 6 years in the Commissioning and Contract Support Officer role. The Claimant says during this time he augmented his technical skills and knowledge and more localised knowledge about commissioning for social care. He considers that he became an expert and skilled in the theory of social care commissioning including achieving certification from the Institute of Public Care as well as the local practice as applied by the Respondents. He also undertook training in preparation to line manage staff.[13]The Claimant’s sickness absences on a yearly basis from 2005 are as follows – 11 absences totalling 33 days in 2005; 9 absences in 2006 totalling 18 days; 8 absences in 2007 totalling 15 days; 9 absences in 2008 totalling 21 days; 13 absences in 2009 totalling 28.5 days; 9 absences in 2010 totalling 18.5 days; 8 absences in 2011 totalling 21 days.[14]On 5 August 2011 the Claimant had an MRI scan of his back the results of which he received in September 2011. As a result he sought out independently an osteopath and then regularly saw a remedial sports injury specialist. The Claimant says he had a better understanding of his injury and advice about managing it and he describes what he calls “a golden age” for both his health and career.[15]The Claimant had the following absences from 2012 namely 5 absences in 2012 totalling 9.5 days; 5 absences in 2013 totalling 10 days; 3 absences in 2014 totalling 19 days and 4 absences in 2015 totalling 8.5 days.[16]On 1 December 2011 the Claimant applied for and was appointed to the role of Brokerage Team Leader in the Social Care Directorate. The Claimant says this was the perfect post for him at that time where he could exhibit all his qualities acquired both academically and in his previous posts. Brokerage service would take the approved and assessed eligible needs of clients and then seek the appropriate services to meet those needs from across the public, private and 3rd sectors. Brokerage service initially focussed on domiciliary care but later added extra services such as nursing and residential care homes. The Claimant says that from his own perspective and experience the entire period from late 2013 to the second half of 2015 was incredibly busy and stressful but stressful in the normal sense of there being a lot of work to do and that real people would be affected by how that work was done, the good sort of stressful.[17]In April 2014 a new system for providing domiciliary care was initiated with 4 providers being awarded framework contracts. Alpha Care and Care Watch were awarded contracts in the South of Powys and Abacare and Reach were awarded contracts in the North of Powys. The Claimant considered the overall structure to be a good plan but was surprised there would be inserted a sub-contracting clause into the framework contract requiring the successful bidders to sub-contract 40% of their hours to any other provider. The Claimant considered this sub-contracting clause was damaging. The Claimant says that by April 2015 3 of the 4 providers failed and most of the service in the South of the County was absorbed by the Council’s inhouse service. An Independent Review process was carried out by Mr Mick Mellors. It led to a dynamic purchasing system. The Claimant says that he challenged the blame for the framework collapse on the framework contracts and consultants.[18]The Claimant was absent from work for a continuous period of 13 days in 2014 because he says he was asked by his Line Manager at that time, Mr Lee Anderson, to deal with a freedom of information request which had to be responded to either the same or the next day. Mr Anderson revealed it had sat in his inbox for more than a week. The Claimant felt unwell at this time and after going to the doctors surgery went to the local hospital.[19]On 16 May 2016 the Claimant applied for and was appointed to the role of Senior Contracts and Monitoring Manager. This appointment was previously held by Miss Sally Beech. The Claimant says that during this period of when Sally Beech was in charge that Miss Beech wanted to undermine him and that there was an attempt to drive up his sickness to manufacture causes for action against him. The Claimant says that he raised various challenges including direct payment rates and referred to the Pembrokeshire Judgment. Events in 2017[20]By letter dated 3 February 2017 Mr Lee Anderson, the Claimant’s then line manager and Senior Strategic Commissioning Manager, wrote to the Claimant inviting him to attend the first formal absence meeting on 13 February 2017. The meeting was called due to the Claimant’s sickness absence levels totalling 6 occasions in the last 12 months. This meeting was rearranged to 20 February 2017. On page 255 of the bundle are the notes and outcome from the first formal absence management meeting of 20 February 2017. That letter documents that the 5 occasions of absence totalling 14 days in the last 12 months namely 3 May 2016 to 5 May 2016 sciatica/back pain 3 days; 26 June 2016 to 28 June 2016 flu/virus – 3 days; 25 September 2016 to 28 September 2016 sciatica/back pain – 3 days; 18 November 2016 to 22 November 2016 scratched eyeball – 3 days; 12 January 2017 to 14 January 2017 sickness bug – 2 days. It is noted that one of the occasions of sickness absence information that had been provided had dropped off as it was not in the last following 12 months.[21]As part of the letter it was said that the following was confirmed and discussed during the meeting namely that Joanne Davies, Assistant HR Business Partner asked if the Claimant would be able to possibly work from home when he suffered with a bad back to prevent him being off sick to which the Claimant is recorded as saying that he could use a computer for a period of time but would be unable to work for the whole day. One of the points recorded is that the Claimant had previously been referred to occupational health and advice had been sought and adjustments to the work station had been implemented and the Claimant was asked if there were any further adjustments which could be put in place to support him and he confirmed there was none. The Claimant felt that he had had the relevant support from Mr Anderson during his periods of sickness absence. The Claimant was informed that the genuineness of his absences would not be in question. There is a reference to making the Claimant aware that the meeting was to concentrate solely on sickness absence levels and failure to comply with the contractual obligation to attend work which was confirmed was not specifically in the contract but an implied term and that as the Claimant was contracted to be working 37 hours per week and if he is off sick then there is a breach of this. It is noted that the Claimant raised that he felt the sickness absence policy was not enforced consistently and he felt this was both within the department and other service areas. It was noted that the Claimant’s attitude during the meeting was confrontational. The Claimant says that in fact line managers had always engaged with him over the subject of sickness absences and had been collaborative in trying to improve the situation by a more informal means. The Claimant says that although there is not a note he is certain it was confirmed he would not be able to work from home or take short notice annual leave to manage his back condition in order to avoid sickness absence. The Claimant says that gave him the impression that the purpose of the meeting was to find cause against him rather than any genuine intent to improve the situation.[22]If the Claimant is correct about what he says regarding the purpose to find cause against him it is surprising that the outcome was that Mr Anderson decided not to issue the Claimant with a written warning on that occasion but would continue to review sickness absence over the next 6 months and any further sickness absence may result in proceeding back to the first formal sickness absence meeting. We reject the Claimant’s evidence about the purpose of this meeting as he alleges as it is inconsistent with the conclusions of the meeting. Indeed the discussion included what the Respondents could do to assist the Claimant in relation to sickness absences which again is inconsistent with the Claimant's evidence about the nature and tone of this meeting.[23]The Respondents policy regarding short term absence management is set out on page 948 to 949 of the bundle. The long term absence management is on page 950 to 951. In relation to short term absence management paragraph 10.1 says “short term/frequent absences are triggered by one or a combination of• 3 episodes of short term sickness of any length in any rolling 12 month period;• 2 episodes of sickness which when combined total more than 3 working weeks in any rolling 12 month period. Paragraph 10.3 is headed “informal supportive action” it says that “in cases where the employee reaches one of the short term absence trigger points or there is a recognisable pattern of absence, the manager shall speak to the employee about their absence levels at one of the regular meetings (for example supervision or 1-2-1) or at a special convened absence meeting (NB: the pregnancy related absences are excluded). This is known as informal supportive action. The discussion is relatively informal although points discussed and agreed next steps should be recorded on iTrent and in writing, using a template letter intranet page 6275) as follows• Whether any health or welfare issues affecting attendance;• Whether there are any underlying health issues and/or whether the Equality Act 2010 applies;• That improvement is required and that future attendance will be monitored;• That should there be no improvement, formal action may be taken.[24]In paragraph 10.4 it says under the heading “formal action” “where there is no improvement in attendance levels or insufficient improvement or the improvement is not sustained over a reasonable period of time, then it would be acceptable to consider formal action in the form of a formal meeting, as set out in the guidance note at appendix A. Note that a sanction of up to a first written warning may be issued at the formal meeting”.[25]Paragraph 10.6 says that “employees should notify their manager if they have a disability as defined under the Equality Act 2010 that impacts or may impact on their attendance – in such cases, it may be expected that sickness absence could be higher than an employee without such a disability and as far as is reasonable this should be factored into the employee's sickness absence management. In all such cases, an opinion should be sought from the occupational health service and/or consultant physician. However, employees are advised that remedial sickness absence action including warnings may still be issued against employees who have a disability, provided reasonable adjustments have been considered. Managers must also demonstrate that they have taken into account absences that are directly or indirectly related to a disability and that a higher number of days and occasions of sickness absence may result before issuing any warnings.”[26]The letter of 1 March 2017 at page 255 says that it was confirmed that informal conversation had taken place with the Claimant about his sickness absence levels at previous return to work meetings, however since that time there had been no improvement in the sickness absence levels. The letter also says that if the Claimant could think of any further support that they could put in place to assist him to remain in work and to let Mr Anderson know and he could look into this. Also, if the Claimant felt Mr Anderson was not being consistent in managing sickness absence to let him know and he would look into it. Mr Anderson says if he requires any further support from himself in the meantime or wished to discuss anything further do not hesitate to contact him.[27]We find that the meeting was conducted in accordance with the short term absence management policy of the Respondents and that the policy was being followed. On 12 May 2017 there was a supervision meeting between the Claimant and Mr Anderson. One of the matters discussed was absences. On page 259 is a record of that supervision and says that Mr Anderson advised the Claimant that following his recent sickness absence, it had been agreed with HR that in future when the Claimant is sick absences needed to be recorded as sick. Holidays to cover sickness would not be granted. No written warning would be issued as a result of the latest sickness. Ongoing sickness monitoring would continue. When the Claimant is sick he cannot take annual leave in lieu of sickness absence is consistent with annual leave not masking an employee’s sickness which should be management practice and there is nothing to indicate that it was done specifically just for the Claimant as opposed to generally being applicable with any employee. We do not consider that such an instruction on the Respondents was in any way unreasonable or not in accordance with the policy.[28]At a supervision hearing on 22 June 2017 it was noted that the Claimant had not received an occupational health appointment yet and if it is not received the Claimant would let Mr Anderson know for chasing. Both of them would complete a stress questionnaire to ensure/identify everything has been done that can be to provide appropriate support and environment. During June and July 2017 the Claimant says he suffered 3 instances of sickness totalling 11 days because of debilitating flare ups. The Claimant says that this illustrates that granting him a 1 day annual leave in order to manage his back at the first sign of a problem would obviously have been the more reasonable approach rather than having pressure to attend the office while unwell.[29]On 5 July 2017 the Claimant was seen by Dr Williams, Occupational Health. Dr Williams said that he would recommend permanent adjustments are required on the basis that the Claimant has a chronic lower back condition which is sometimes incapacitating and leads to him having to take time off work. One such adjustment would be acceptance of a higher than average level of sickness absence in his case because of the occasions when his lower back symptoms were severe and sickness absences unavoidable. Dr Williams also considers it to be a reasonable adjustment to allow him the opportunity to undertake agile working so that he could work from home on occasions when his back is preventing him from getting into work and there was also a consideration for the Claimant to undergo a work station assessment.[30]On 10 August 2017 there was a welfare meeting between the Claimant and his Line Manager Mr Lee Anderson and Joanne Davies, HR. It was noted, pages 280 – 282, that the Claimant confirmed that he was feeling good at the moment but that prior to the occupational health appointment in July 2017 the Claimant felt stressed about his situation at which time they undertook a stress risk assessment to establish stress factors. It is recorded that at the welfare meeting the Claimant confirmed that the situation had changed and he no longer felt stressed. It was confirmed that the option to take annual leave instead of sickness absence when the Claimant was sick had been declined which was a consistent approach with all other members of staff. As far as working from home the Claimant confirmed that he could not do a normal day’s work at home when suffering from a bad back. It was confirmed that there was no option but to take sick leave when the Claimant was sick. It was agreed a work station assessment would be undertaken as soon as possible to ensure that the current work station was suitable and fit for purpose. Sickness absence levels would continue to be monitored and further formal action may be taken for further periods of sickness absence. Mr Anderson agreed for the Claimant to work from home if he felt unfit to come into work but this will be a short term period of 3 months and reviewed after this time. It was recorded that the Claimant confirmed this did not sound too unreasonable and that he was happy with this. This contemporaneous account of the meeting is not consistent with the Claimant’s evidence that the meeting was not interested in his welfare and decided that actually nothing could be done that would stop the clear decline in his wellbeing. We do not accept this evidence of the Claimant’s assessment of the welfare meeting. The Respondents did not ignore or did not refuse to implement the recommendations of the occupational health. On the contrary they took on board the Claimant’s position and made positive actions to assist. It is also noteworthy that at the supervision meeting on 28 July 2017 there is reference to the Claimant and Mr Anderson to discuss potential for more home working at the welfare meeting as referred to above. There was no rejection of agile working as such. The Claimant complains about being excluded from meetings and comments being made by Sally Beech or insinuations about being away from working without leave but again it is inconsistent with the accounts of the welfare meeting that took place and what the Claimant said about him not being at that moment stressed.[31]On 8 December 2017 the Claimant lost the only member of his staff who had been granted a secondment to another post. The Claimant was not happy about this situation. The Claimant requested his line manager to return him to his substantive post as Brokerage Team Leader. Formal Absence Meeting 14 December 2017[32]On 29 November 2017 the Claimant was invited to a formal absence meeting. The attendees would be Mr Lee Anderson and Ms Paula Griffiths (HR Advisor). In a letter of 29 November 2017 it was said that the meeting was called because following the welfare meeting on 10 August there has been no improvement in attendance levels. On 1 September to 4 September the Claimant was absent for 2 days with neurological symptoms including headaches and migraine. On 9 October 2017 to 17 October 2017 the Claimant was absent for 7 days due to back and neck problems; on 13 November 2017 to 18 November 2017 the Claimant was absent for 5 days due to eye, ear, nose and mouth/dental problems; on 20 November 2017 to 22 November 2017 the Claimant was absent for 3 days because of infections including cold and flu.[33]At the time of the meeting on 14 December 2017 across the preceding 12 months there were 9 periods of absence totalling 34 days. Of these 6 occasions totalling 24 days were not related to back and neck problems.[34]The notes of the meeting were sent to the Claimant on 2 January 2018. In the letter it was said that if the Claimant felt there was anything he wished to add or edit to let them know and the notes would be amended accordingly. If nothing was heard by 15 January 2018 it would be assumed that the Claimant accepted them as an accurate record of the meeting. It was noted that the previous welfare meeting in August where recommendations about occupational health were discussed and agreed and that it was an accurate summary. There were no issues with the work station although it was acknowledged that the Claimant was not an expert in this field. The Claimant was asked whether there was any support that he felt could have helped with past absences and the Claimant said that ability to work from home under VPN access could have prevented some of the absences earlier in the year. Paula Griffiths advised the Claimant that he should contact IT in order to arrange the installation of the App allowing him to have VPN access. The Claimant advised that it had been a bad year and all the changes in routine etc. may have contributed to his absence levels and he hoped he would not be as bad going forward. The Claimant said that counselling service might be of help to him. The Claimant said he was aware that his absence was a problem in terms of professional relationship prospects etc. and he was willing to try what he could do to improve attendance. It was said that the impact on ability to do the job was not a question of capability but when he was off work the work was not done and this caused a backlog of work which then was compounded by further absences. The Claimant said that he would describe the position at work as being pressure but not sure stress was right. The Claimant said he hoped the imminent change to a role to project work prior to the reorganisation should help to remove some of the work pressures that were causing him concern. The Claimant acknowledged that his absence levels were unsustainable and unhelpful. He said that he was doing his best both in work and in his personal life. The Claimant understood the Respondents were following the policy but hoped they would allow some flexibility. The meeting was then adjourned to be reconvened on the following day 15 December 2017.[35]The outcome was that a written warning was issued (pages 291-293) and it was said that “the reason for this was concern at the levels of absence the impact this has and lack of improvements since the last meeting.” The Claimant was told that he had the right to appeal against that to Dylan Owen, Head of Transformation for Adult Services within 10 working days of the date of the letter. Paula Griffiths advised that the Claimant’s attendance would be reviewed periodically and if there were further concerns then a further hearing could be convened.[36]The Claimant says that the Respondents had successfully driven up his sickness and failed to make any allowances for his back condition or recognise any stress symptoms. We reject this assessment by the Claimant. The letter is quite clear in what was discussed and how it was discussed and the Respondents were making positive suggestions to assist the Claimant. The Claimant did not assist himself since he did not ask for VPN though being urged to contact IT to arrange VPN access which was outstanding since being agreed in August 2017. It seems that the Claimant accepted that concerns were genuine on the part of the Respondents regarding non attendance at work and the impact that it had but has changed his view as given in his evidence, which evidence we do not accept as being accurate. The Respondents had taken into account the fact that there were disability related absences but the other absences non disability related clearly came within the short term absence policy which would have triggered the meetings.[37]The Claimant says that he noted the appeal process and in fact did not appeal the sanction nor did he seek to amend or correct anything in the notes of the meeting that were sent to him by the Respondents on 2 January 2018. We accept the accounts and notes as being an accurate account of what was discussed. Freedom of Information Request 4 January 2018[38]The Claimant requested that in each of the previous 3 calendar years(1) the number of Powys County Council employees who experienced 9 or more periods of sick leave, and of these how many received an official written warning or other disciplinary or competency related action and(2) the number of employees who experienced 34 days or more of sickness and of these how many received an official written warning or other disciplinary or competency related action.[39]The Respondents replied on 18 January 2018 to say that an initial report to identify sick leave records over the period in question had identified in excess of 800 records that would need to be manually checked in order to confirm that they would meet the criteria of the Claimant’s request and to further check which received warnings/disciplinary related action. Assuming that each record would take 5 minutes this would equate to 66 hours of work.[40]The Claimant by email of 26 January 2018 was dissatisfied with this response. The Claimant said he did not believe that the amount of time stated was required and that he suspected a conflict of interest of the people answering his request and then why he has asked for this information. The Claimant said he easily identify the number of incidents and days sickness for staff that he line manages and that he believes that a request could be answered within the Freedom of Information timescales.[41]On 23 February 2018 the Claimant accepted that 2 years of data would be acceptable. By 14 June 2018 in a letter from Mr Clive Pinney, Solicitor for the Respondents, the Claimant was told that he finds the Respondents response was partially incorrect and that further attempts should have been made to obtain the information for which he apologises. Within the body of the letter was set out the following statistics namely (i) For the number of Respondents employees who experienced 9 or more periods of sick leave and of these how many received an official warning or other disciplinary or competency related action the answer was 2015 – 13 employees experienced 9 or more periods of sick leave, of which 2 received formal action 2016 – 9 employees experienced 9 or more periods of sick leave, of which none received formal action 2017 – 16 employees experienced 9 or more periods of sick leave, of which 2 received formal action[42]In relation to the second request namely the number of employees who experienced 34 days or more of sickness and of these how many received an official written warning or other disciplinary or competency related action the answer was namely 2015 – 376 employees experienced 34 days or more of sickness, of which 3 received formal action 2016 – 445 employees experienced 34 days or more of sickness, of which 7 received formal action 2017 – 434 employees experienced 34 days or more of sickness, of which 4 received formal action.[43]It was said that it must be noted that the Respondents sickness absence management policy provides that HR do not need to be involved in first formal meetings (where a first written warning could be issued) and therefore managers may have dealt with sickness absence formally with advice from HR but that the Respondents would not necessarily have a record of any action that had been taken. Trent (computer system) does not hold this information and employees personal files are only held by individual service areas and therefore the Respondents would not have access to check the record on the file. They had excluded school based staff from calculations and any individuals who have more than one job with the Authority.[44]After repeating the apology for the incorrect response there was additional apology from the Respondents for the delay in providing a response to the Claimant’s request for an internal review. The Respondents say that they trust that they had met the Claimant's requirements with a satisfactory explanation plus for the reasons for the response made, and should the Claimant remain dissatisfied he could appeal to the Information Commissioner who is the statutory regulator.[45]The Claimant says that he was not able to appeal the warning because of the delay in providing this information. However an appeal could have been lodged within the timescales and then representations made if appropriate regarding the grounds of the appeal being supplied and/or the hearing of any appeal being delayed because of the lack of information which was requested. None of these matters were undertaken by the Claimant.[46]The Claimant’s view was that the Freedom of Information Request information show that his treatment was even more exceptional than he had suspected because there was disparity in treatment between how he was treated in respect of his sickness absence in comparison to other members of staff. This forms a part of the submissions on behalf of the Claimant and we will return to consider the matters later in this Judgment.[47]The Claimant stopped being a Senior Contracts Monitoring Manager and was placed on some project work as an interim assignment reporting to Ms Rachel Evans. Grievance Letter from the Claimant dated 21 June 2018[48]There had been a scheduled supervision meeting with Mr Lee Anderson on 21 June 2018. Knowing about this meeting the Claimant drafted a list of grievances (page 297 to 298 of the bundle) and a discussion with Mr Anderson was in the Claimant’s view Mr Anderson closing down the meeting and not engaging and being dismissive of the points that the Claimant made. As a result the Claimant called him back and handed over an envelope containing the list of grievances. There were 5 named paragraphs in the list of grievances. Firstly that the Claimant said that he had been unfairly excluded from the opportunity to apply for posts. In particular there was no selection process for the appointment to the strategic commissioning post for domiciliary care. The second paragraph was that during his secondment to the position of Senior Contracts and Monitoring Manager the Claimant was unfairly undermined and prevented from making improvements and excluded from crucial decision making relevant to the post. He says he was forced to resign the position. The third paragraph is that the Claimant’s treatment during periods of poor health has been unfair and inequitable. The Claimant says that various mitigations suggested by himself and occupational health were unlearnedly rejected by Lee (Anderson)/HR. The Claimant says such has the unique restriction on him within the team not to be allowed short notice leave while his marriage was breaking down, forcing him to attend work whilst not in a fit state or to take sick leave exacerbated his predictably consistent heightened sick levels. That he would be subjected to micro-management to any home based flexible working not applied to anyone else in the team. He was not allowed to use annual or flexi leave if he was sick. And that it seems there was an attempt to drive up his recorded periods of sickness and he can only speculate why anyone would pursue such a course of action. The fourth named paragraph stated that information had been unfairly and unlawfully withheld from him from preventing him from being able to appeal an official warning and furthering the atmosphere of conflict between him and his employer. The Claimant says that it was malevolent, dishonest protectionism in the delays and why was he being treated with unfair hostility after 13 years of exemplary service and high achievement. It was noted that his absences were not affecting his ability or capacity to do the work required of his role. The fifth named paragraph said that the above named paragraphs makes him believe that he is being “set up to fail”. It is his perception that this is for reasons of partisan personal self interest, detrimental to service users and of significant impact on his health, wellbeing and professional prospects within the department and possibly the organisation. His attempts to discuss these concerns informally had been met with scorn. The Claimant says he feels there is no avenue out of this unfortunate deterioration in the relationship without formal acknowledgement of the above unfair treatment.[49]At the time of submitting this grievance the Claimant had the following occasions preceding the grievance of sickness absence namely: 15 January 2018 to 16 January 2018 – neurological; including headaches and migraine 2 days; 9 February 2018 to 9 February 2018 – stomach liver and kidney 1 day; 5 March 2018 to 9 March 2018 – musculoskeletal problems non back and neck – 5 days; 16 March 2018 to 20 March 2018 infections including colds and flu – 3 days; 16 April 2018 to 19 April 2018 eye ear nose and mouth/dental – 3.5 days; 23 April 2018 to 23 May 2018 stress depression anxiety neurasthenia mental health and fatigue – 22.5 days; and 18 June 2018 to 20 June 2018 back and neck problems – 3 days.[50]Mr Gareth Price, Design Manager, was appointed the Investigating Officer in respect of the Claimant’s grievance. Mr Price interviewed the Claimant together with Julie Carrod (HR Business Partner) on 17 July 2018. Mr Lee Anderson was unavailable to be interviewed as he was off work. After discussions with the Claimant the Claimant confirmed that on 6 August 2018 the investigation should continue. In Mr Anderson’s absence Mr Price invited Mr Dylan Owen (Head of Transformation for Adult Service), the Claimant’s then Acting Line Manager, to attend an investigation interview. He interviewed Mr Owen with Julie Carrod present and took a formal statement in relation to the grievance on 11 September 2018.[51]Mr Dylan Owen took over the line management of the Claimant in August 2018 in the absence of Mr Lee Anderson. Mr Owen was concerned at the level of the Claimant’s sickness absence so he contacted Ms Michelle Griffiths, HR Business Partner for support. On 15 August 2018 Mr Owen emailed the Claimant confirming that he had had a further 9 periods of sickness absence totalling 30 days since the written warning was issued in December 2017. Mr Owen advised that this would normally require further investigation but that this was being postponed until the grievance was concluded. Between submitting the grievance the Claimant had at that time two further periods of sickness in addition to the matter set above namely from 25 July 2018 to 26 July 2018 back and neck problems 1.5 days; and 30 July 2018 to 2 August 2018 back and neck problems – 3.5 days. Mr Owen advised that the absences would require further investigation but it was postponed until the grievance was concluded.[52]During a face to face supervision meeting the Claimant stated that his sickness absence record was not correct and he requested that Mr Owen looked into any anomalies or errors. Mr Owen emailed the Claimant on 20 September 2018 asking that the Claimant confirm the accuracy of his sickness absence record. The Claimant responded and stated he cannot confirm the dates were correct. Mr Owen cross-checked the records for 2017 and 2018 as per the Claimant’s request and found a number of anomalies with regard to the annual leave dates not being booked on the Trent system. Mr Owen drew the attention of Human Resources to this matter. Mr Owen ceased line managing the Claimant on 28 September 2018 when Mr Martin Heuter took over the role.[53]By letter of 28 September 2018 Mr Gareth Price’s findings in relation to the grievance were sent to the Claimant (page 305 to 309 of the bundle). The finding in relation to the first grievance point was that it was not upheld on the basis that the Claimant had the opportunity to apply for permanent positions within the department. In relation to point two that was not upheld upon the basis that Mr Price found no evidence that the Claimant was being intentionally undermined in his secondment to the Senior Contracts and Monitoring Manager role. In relation to the third point Mr Price sets out the sequence of events in relation to absence management and makes the point that of the absences considered at the 14 December 2017 formal meeting when 9 occasions of absence were considered, 4 related to lower back issues and therefore the trigger for action to be taken was still reached. Since the last formal meeting on 14 December 2017 a further 9 absences totalling 29.5 days with 4 of them relating to lower back issues and could have been considered at a further hearing in line with the sickness absence management policy. In terms of home working opportunities Mr Price was advised that the role of Brokerage Team Leader requires the post holder to be in the main office based working with and supervising and supporting members of the team a task deemed difficult to achieve by remote working. Mr Price says that the Respondents leave policy states that annual leave should be requested in advance (unless there are exceptional circumstances) in order for it to be considered for approval. Employees must give at least twice as much notice as the amount of annual leave required. Mr Price therefore says that it would not be possible to take annual leave in place on an unplanned sickness absence. Further that would mask true sickness absences thus preventing the service from ensuring adequate support was put in place and to identify any underlying issues which needed to be addressed. It could also impact upon an employee from taking the mandatory 4 weeks of statutory leave during the leave year. There was no evidence found by Mr Price to suggest anyone attempted to deliberately increase the Claimant’s sickness absence and therefore the grievance was not upheld.[54]In relation to the fourth point Mr Price dealt with the sequence of events in relation to the Freedom of Information Request and said that since the period of appeal from the written warning was 10 working days and considering the nature of the information under the Freedom of Information Request sought he did not think it “necessarily” reasonable to expect the Respondents officers to provide the Claimant with the data in time for the Claimant to consider it as part of his judgment whether or not to appeal a written warning. Whilst it may have been a factor Mr Price does not believe that the Claimant would have been prevented from making an appeal. This grievance was not upheld. In relation to point 5 Mr Price sets out some of the statements made by the Claimant as to why he believes that he has been set up to fail. Amongst the quotations set out by Mr Price was that the Claimant said it was a high pressured time in social care at the moment and there is a lot of failings obviously as the inspection reports are pointing out. It is very embarrassing for a lot of people and it was handy to say “he just didn’t do his job properly did he”. By keeping the Claimant out of domiciliary care retendering nobody gets embarrassed by what really went wrong pin it all on the consultant who’s not here to defend himself anymore and that the Claimant does not tow that party line. He is going to make a fuss about the position so it is handy to just discredit him. Mr Price said that he acknowledged that that might be the Claimant’s belief but he found no evidence to support the view of the Claimant being “set up to fail”. Mr Price was unable to deal with the point that attempts to discuss concerns with Lee had been met with scorn because of Lee Anderson’s current absence. But Mr Price found no evidence to support the statement and this grievance was not upheld. Appeal of Grievance
Findings
[55]The Claimant’s grievance was the subject of an appeal hearing on 16 November 2018 with a panel chaired by Councillor J Michael Williams, joined by Councillor Francesca Jebb, Councillor Jon Williams and Councillor David Jones. None of the appearances were upheld. The appeal panel in particular, found no evidence that the Claimant had been set up to fail and there was no link between the Claimant’s ill health, wellbeing and professional prospects to his perception of being set up to fail.[56]The Claimant requested and received a copy of the appeal hearing transcript (pages 347-397 of the bundle). The Claimant complains that there was an obvious bias towards him and that the panel didn’t seem to understand the implication of the freedom of information data. The Claimant said that one member of the panel had previously complained about his behaviour at a public consultation meeting about the schools closure amounting to a clear conflict of interest but this was not raised specifically as a point at the appeal hearing. We reject the suggestion that there has been shown a conflict of interest in this respect by Counsellor David Jones who formed only part of the appeal panel. We also reject the Claimant’s suggestion there was a clear conflict of interest in Mr John Bevan advising because of his senior role in providing HR’s involvement with the Claimant. It would be perfectly in order for Mr Bevan to present the case to the panel.[57]On 5 October 2018 the Claimant gave notice of intent to appeal to the Respondents appeal panel in respect of the grievance outcome. The grounds for the appeal included that the grievance investigation had failed to adjudicate according to common law rules of evidence or as required under administrative laws; the grievance investigation failed to act fairly and without discrimination; that the grievance investigation failed to act in compliance with statutory guidance; that the grievance investigation failed to act in compliance with Powys County Council’s own policies; and the grievance investigation has committed procedural improprieties that are not commensurate with English law. There was set out references to the law including Halsbury’s Laws of England. The notice of intent to appeal also says that on a more formal note it should be demonstrated that the written explanations given in the reasoning of the grievance investigation rely upon some manifestly preposterous and self-contradictory arguments. It said that some officers and departments have chosen to escalate this matter for no reason that is beneficial to the Council’s best interests and that in the face of so much consequential risk to everyone concerned in this matter or to raise more concerns than the narrower matters at issue. Ground no. 5 asserting procedural impropriety is the paramount problem that the grievance investigation faces and the grounds numbered 1 to 4 are in actuality entrenched within that procedural impropriety. The issue regarding leave dates as opposed to sickness absence dates, referred to in an email from Mr Dylan Owen to HR Michelle Griffiths and Paula Griffiths on 8 October 2018. Mr Owen says he needs to meet them to go through the records for the Claimant’s leave dates. There were 11 days unaccounted for which if taken as annual leave would mean the Claimant has more than run out of annual leave. There were 3 days for which they cannot account. It suggests that the Claimant has taken 11 days annual leave this calendar year which are not recorded on Trent. Mr Owen says a number of these have been raised by email by Mr Lee Anderson where he requested that the Claimant update the record and correct errors and there had also been similar emails to the team but this has not been done. In conclusion in the email Mr Owen states “again, further to my emails on advice on medical capability, I’m requesting your advice with regard to these days and recording of leave”. At this time Mr Owen had ceased to be the line manager of the Claimant but was a senior manager in respect of the Claimant’s employment.[58]On 16 November 2018 the Claimant attended the grievance appeal hearing which was chaired by Councillor J. Michael Williams together with Councillor Francesca Jump, Councillor Jon Williams and Councillor David Jones. Mr John Bevan, Acting Head of Workforce and OD provided the appeal panel with advice on the Respondents HR Policies and Procedures.[59]The outcome of the grievance appeal was set out in a letter dated 22 November 2018 (pages 315 to 318 of the bundle). On each of the five grievances the appeal panel upheld the decision of the Investigation Officer. As set out in the outcome letter in relation to grievance 3 the appeal panel unanimously upheld the Investigating Officer's findings because the panel found that the Claimant did have a poor sickness absence record. Further the panel found that the evidence shows the Claimant’s manager had sought to support him by, for example, making reasonable adjustments to his work station and not initially issuing him with a written warning but instead pointed out to the Claimant that his absence would be closely monitored and further action may be taken in line with the sickness policy. It is said that the sickness absence remained poor overall for reasons other than the Claimant’s back problem and it still met the trigger points in the sickness absence policy for the manager to consider taking formal action against him which he did by issuing a formal written warning. The appeal panel found that the Claimant was not prevented from working from home but had decided not to have VPN installed at home meaning he could not access the council’s ICT systems from home and the panel found that this must limit the work he could do at home without access to work based ICT systems and facilities. On the annual leave issue the panel found that this needed to be planned to enable cover to be arranged for the Claimant in the workplace and that this is something which is difficult to achieve at short notice most of the time. The panel found that no one tried to purposely increase the Claimant’s sickness absence by their actions. The appeal panel found no evidence to validate the Claimant's perception he was set up to fail and found there was no link between the Claimant’s ill health wellbeing and professional prospects to his perception of being set up to fail.[60]On 11 December 2018 to 13 December 2018 the Claimant had further sickness absence for stomach liver kidney and digestion for 2.5 days. Events Leading to Investigation of Criminal Fraud by the Claimant[61]On pages 811 to 812 of the bundle is a timeline in respect of concerns raised by Dylan Owen regarding the Claimant. On 9 October 2018 it is stated that Dylan Owen raised concerns about the following aspects of the Claimant with HR namely,(1) Medical capability – the Claimant’s attendance does not allow him to undertake the post effectively(2) Leave records – questions are raised as to the Claimant's taking of leave and recording it(3) Managerial manner – issues around the Claimant's approach to work when not being at his desk and communication. There is reference to a further email sent regarding the leave records as referred to above.[62]On 9 October 2018 Mrs Michelle Griffiths met with Mr Dylan Owen to discuss the Claimant and the way to proceed. Mrs Griffiths had initially provided advice to Joanne Davies, Human Relations Advisor and as of 2018 line managed Miss Davies as the HR Business Partner for the Service. Miss Joanne Davies advised the Claimant’s line manager. In the timeline document in relation to the meeting of 9 October 2018 with Mrs Michelle Griffiths and Mr Dylan Owen the following appears “in a meeting with Dylan to discuss his sickness absence, Jesse stated that his records on Trent were incorrect and asked for a full review to be undertaken. Hayley Morris undertook this review and compared Trent, the clocking system, lone working sheets held by the department and also Jesse’s calendar. It was found that there are 11.5 days unaccounted for potentially requiring an investigation for fraud. This includes a couple of days in January 18 which were queried by Lee in an email to Jesse but which remain unaccounted for. We discussed the possibility of entering into a protected conversation with Jesse and spoke to Clive Pinney about it. He confirmed that taking holidays without declaring them/authorisation is gross misconduct. In terms of a protected conversation he suggested offering no more than 3 to 6 months salary and offering him 2 weeks thinking time between the meeting and giving us a decision. I confirmed to Dylan that we would not expect JL to be in work during this time. Dylan was in favour of exploring this option and was going to speak to finance. When outside I said I would speak to Yvette in Corporation Fraud to discuss the case (Hayley has the full records); and also find out how we go about setting up a protected conversation, the content of which would be that he has the option of accepting our offer or proceeding with a disciplinary investigation for fraud with dismissal on the grounds of gross misconduct as a potential outcome”. It is then recorded in the timeline that on 16 October 2018 RW (Rebecca Williams) picked up advising on this case to Dylan Owen from MG (Michelle Griffiths) due to MG’s capacity. It was explained in evidence by Mrs Michelle Griffiths that capacity meant in relation to her workload at that time.[63]Mrs Rebecca Williams was the Line Manager of Mrs Michelle Griffiths at that time. It was Mrs Rebecca Williams who wrote the timeline and it was Rebecca Williams who spoke to Yvette Kottaun (Senior Investigator, in the Income and Awards Team of the Respondents).[64]In the timeline by Rebecca Williams, Mrs Griffiths said the use of the word fraud was because if something was taken to which there was no entitlement there was a potential for it to be fraud. It was Corporate Fraud’s decision whether to investigate the matter or not. Mrs Griffiths said that she and Dylan Owen did not form any conclusion about dishonesty. Mrs Griffiths said that she gave options. Mrs Griffiths said it was very unusual for HR to suggest a protected conversation and it was Dylan Owen, as far as she can recall, was then going to finance. It was Rebecca Williams who did speak to Yvette in Corporate Fraud. Although it looks like an ultimatum was being put to the Claimant, Mrs Griffiths says it was not. There was no definite decision but a discussion with the Fraud Team. A discussion about protected conversations was because Dylan Owen was very concerned about the Claimant’s attendance and the impact upon the team and whether this was an opportunity for something different to happen to end the employment relationship.[65]Mr Dylan Owen said that although he was not au fait with protected discussions and would be asking a solicitor for advice, it seemed reasonable to him to consider it because there were issues with the Claimant’s attendance, they needed a team leader in post in work and when he was not they didn’t know where he was and that had a significant impact on the team. Also the Claimant was unhappy. Mr Owen said they needed a functioning brokerage team so they moved forward. It would be sensible to have a conversation. Mr Owen said it was laughable to conspire against one individual and he cannot give that any credence and it is just not true. Mr Owen said that the Claimant often didn’t advise him about absences but the Policy was clear and that in supervisions when he reminded him of the need to follow policy the Claimant agreed but he hardly ever did it. Mr Owen said that in discussions with the team they were telling him that they had not been supervised for a long time and found it very frustrating to get hold of the Claimant and for advice. They were complaining to Mr Owen that management was not dealing with it and were feeling let down. The work they were doing was a thankless task and never ending and challenging especially with fewer care providers with a huge amount of pressure. There were four or five persons in the Claimant’s team. If the Claimant was not in people within the team had to take on responsibility. Mr Owen could understand the frustration of the team when the Claimant was not in supervising and not in work. Although the Claimant was very capable and affable, these were the problems.[66]Mr Owen described how the Claimant wasn’t telling him where he was and the impact on the team. Mr Owen would say to call him but it didn’t happen.[67]Mr Owen said he didn’t have the impression the Claimant was trying to cheat the system. He had asked the Claimant to contact him directly when the Claimant chose to contact the other Managers. There were instances where the Claimant left messages for him. The issue was that Mr Owen invited the Claimant to phone his personal mobile but he did not do so. Mr Owen said that things were clearly not working. At that time, pre-covid and new technology, there was a need for the team to be together. After covid everything changed regarding the structure and landscape. The new technology team members were working from home but that was not the position in 2018.[68]Mr Owen said that in relation to the notes at page 811-812 regarding “Investigation for fraud”, that his concern was about inaccurate records and why there were errors and the context for doing anything and it wasn’t him about potentially requiring fraud. Mr Owen said he cannot recall what was said in 2018. It was HR who advised fraud. It was not of interest to him regarding whether it was fraud.[69]Mr Owen said he had discussions with the solicitor, Debbie Jones, about entering into a protected discussion but it did not go ahead as it was not considered wise at that stage, to do so and to allow for the investigation to take place. If an investigation was necessary it was not for fraud according to the understanding of Mr Owen. He did not expect the allegation to be one of fraud. It could be gross misconduct. In discussions with Mr Pinney, as noted on page 812, Mr Pinney thought it was gross misconduct.[70]We find that the frustration experienced by Mr Dylan Owen was justified about the attitude of the Claimant towards recording absences and contacting his line management, particularly Mr Dylan Owen when he was the line manager of the Claimant. We find that Mr Owen wanted to explore, in the circumstances, whether the Claimant wished to have an amicable ending of employment though this was in fact never implemented. We find that there were discussions between Mr Dylan Owen, Michelle Griffiths and Mr Pinney to seek his advice and that Mr Pinney said that taking holidays without declaring them or authorisation would be gross misconduct. Mr Pinney considered that if there was a protected conversation it should be offered no more than 3-6 months salary and offering 2 weeks thinking time between the meeting and the Claimant giving the decision. The Claimant would not be in work during this period. We find that at this time there was no conspiracy between these three individuals as alleged by the Claimant. There clearly were discussions about possible options which could result in the termination of employment of the Claimant but this was against the background of the concerns as expressed, particularly by Mr Dylan Owen at this time. We find that the frustration felt by Mr Dylan Owen would have been alleviated in the main by the Claimant leaving the employment of the Respondents but that the investigation into the matters of discrepancies in the leave record were legitimate matters to further investigate. Whilst it may have been the case that Mr Dylan Owen did not push the case for there being a fraud investigation, we find that he had at least acquiesced in there being matters referred to corporate fraud, as discussed with HR representatives, Miss Michelle Griffiths and Miss Rebecca Williams.[71]The question of the leave absence of the Claimant have been put into the hands of Corporate Fraud for them to investigate. This they did between October 2018 and January 2019. There is a note that on 3 December 2018, that Mr Owen met in a one to one with the Claimant and advised him of the investigation. From the notes and the timeline on pages 812-813, during the December period there continued to be concerns that Mr Owen had about the attendance of the Claimant and there had been sent a number of emails back and fore but are not in the bundle. There is a note on 17 December that Mr Owen discussed with Debbie Jones, about when the investigation was likely to complete because he was concerned how fragile the service is and that things could not continue as is. Mr Owen was advised to wait the outcome of the investigation. Fraud Allegation – 2 January 2019.[72]Miss Yvette Kottaun, Senior Investigator with the Respondents, wrote a letter to the Claimant dated 2 January 2019 saying “We have had reason to conduct an investigation into your employment with Powys County Council. This investigation concerns allegations relating to fraud by false representation”. The letter goes on to say that there was a need to interview the Claimant and to interview him under caution because, depending on what the Claimant told them during the interview, they may take criminal proceedings against him.[73]On 18 January 2019, the Claimant was interviewed under caution. The Claimant said there was a Police procedure booklet on the table which appeared to him to be intimidation. That interview was suspended, according to a letter of 24 January 2019. This followed information that was shared by Mr John Lubran on the Claimant’s behalf. The Claimant was advised that he would be contacted by Miss Kottaun to confirm that it was necessary to reconvene the date to proceed with the interview.[74]In the letter of 24 January 2019 Miss Kottaun confirmed that it would not be necessary for the Claimant to attend a further appointment/interview with her and that she was able to release him from caution with immediate effect. The letter goes on to say that Human Resources within Powys will continue to consider your annual leave discrepancies and contact you as appropriate.[75]The Claimant says that it is most probable that any fraud that was committed was by Lee Anderson in failing to update the Trent HR System with an accurate record of his sickness absences and then misrepresenting the sort of action taken against him. We do not accept this assertion on the part of the Claimant. We accept the evidence of Mr Owen that Mr Anderson was attempting to deal with the discrepancies in the assistance and in the reporting undertaken by the Claimant but was unsuccessful in achieving this goal.[76]The Claimant believes the decision to proceed in the manner regarding this investigation was clear evidence of a concerted effort to intimidate and damage him by Lee Anderson and Dylan Owen, resulting from protected disclosures relating to how the Council apportion blame relating to the failings and the domiciliary care, retender and subsequent remedial actions. We do not accept this version on the part of the Claimant. We accept the evidence of Mr Dylan Owen. There was concern that the Claimant was not fulfilling his function as a team leader and displayed a cavalier attitude to the management of the team and reporting his absences to senior management. It had nothing to do with the making of protected disclosures or any disclosures regarding the domiciliary care, retendering and associated remedial actions. We will later in the judgement look at the question of whether these disclosures were protected or not.[77]On 25 January 2019 the Claimant emailed Mr Dylan Owen saying that on a call today, in a number of cases, it was openly declared that they had declined to pursue interim placements via spot contract because the rates quoted were too high. The Claimant says that he is aware that this is unlawful and that he is aware that this happens quite regularly with placements and in fact with domiciliary services, they were not using agency home care staff. The Claimant says that whilst this has never sat easily with him he would always report to members of the group that they had not been able to find them “appropriate close station” or “suitable” placement etc. The Claimant says that with the cat now out of the bag on that front, he thought senior managers might want to be aware and prepared for any challenge from Health. There was an exchange of emails which clarified that the Claimant was talking about residential cases but that it does occur with nursing claimants sometimes too. Mr Owen asks, when you say your rate is unlawful, what does the Claimant mean? He would not be in a position of having to pay whatever amount a home demanded and that their fee setting work agreed fee rates with residential nursing care homes and at least one is now charging a third party top up. Mr Owen says he would appreciate the Claimant’s view. The Claimant says they declined to meet people’s assessed eligible needs for purely financial reasons. The Claimant says, of course they would usually find an alternative even if declined by service user or power of attorney and offer that but in these cases they do not appear to have closed that loop. He has other concerns about the way they calculate the level of contribution of third parties because they tend to use block rates of the bench mark regardless of availability rather than a fully funded quotation available”.[78]Mr Owen says that he is not sure that he fully agrees but they are of a similar mind and with third party contributions, again, he is not sure if he understands the challenge because the work on fees use a very clear open book methodology. The Claimant replies to say that they may be at cross purposes with the two separate issues of fees for a provider and fees for services for an individual. They had two separate issues that overlap in these cases. The challenge would not be from the provider but from the client. On charging a top up to enable choice, reference was made to section 57 of the Social Services and Wellbeing Act Wales.[79]In relation to this exchange, Mr Dylan Owen said that he did not think that these were protected disclosures. With health colleagues they often discuss the Regulations and what they should do. Mr Owen says there is a real issue because it is not clear cut in the Act and what the Claimant was doing was drawing attention to telling health colleagues. Mr Owen described how the general issue, are they able to decline to purchase care on grounds of cost and he sought some advice about this later in 2019 because there were issues common to services. It was a live issue. This email exchange was an ongoing discussion that they had had since about 2014 regarding this matter. Mr Owen made the point that in this email exchange that it was not said that the Authority was acting illegally although there is the word used “unlawful”. Mr Owen did not think it was clearly unlawful.[80]We accept the evidence of Mr Dylan Owen that he did not consider that this was itself, protected disclosure but rather part of an ongoing discussion regarding the live issue of interpretation of the act. Allegation of potential misconduct – 6 February 2019.[81]On 6 February 2019, Mr Dylan Owen sent a letter to the Claimant headed “Notice of investigation that may lead to disciplinary action”. Mr Owen says that he is writing to inform the Claimant that a thorough investigation into an allegation of potential misconduct would be undertaken. The investigating officer will be James Munro, Professional Lead, National Trading Standards Estate Agency Team, and will be accompanied by a member of HR. The allegations consist of: “• In 2017 and 2018 you took in excess of your annual leave entitlement without requesting these in the Trent system. This resulted in you having 4.5 days in 2017 and 8 days in 2018 annual leave which you are not entitled to.• Unacceptable levels of sickness absence over a 12 month period.• Failure to report your absence from work in line with a sickness absence policy.• On 23 January 2019 you portrayed inappropriate and offensive behaviour towards a work colleague. This is a breach of the Council’s Code of Conduct. Please note that the above allegations have the potential to amount to gross misconduct”. The Claimant was told that he would be invited to an interview to offer explanation or comment on the allegations and to be accompanied by a Trade Union Representative or work colleague.[82]On 13 February 2019 the Claimant was asked to broker a package of care to a company called Suncare. Miss Sally Beech, the Strategic Commissioning Manager (Promoting Independence) Adult Services had email exchanges about this. In an email the Claimant says that he is happy to broker the full package to Suncare at an agreed rate and to issue contract and care planning etc., and that is the end of brokerage responsibility. But, in an email to Sally Beech and Martin Heuter, Jennifer Jefferies and Dylan Owen, he says “I think there are some issues for panel to consider – I am unclear about the legal and technical aspects of Suncare charging the client at an additional amount for the same service we had paid for in its entirety? I cannot find provision in the Social Services and Wellbeing Act for a top up for home care or anything that would supersede the maximum contribution. This would especially be the case as we do not have any other fully funded option we have offered the client. Whilst not currently my responsibility, I would be professionally interested in how we finesse the situation?”[83]Mr Dylan Owen asked the senior manager for older people, Mr Adam Greenow, for his views about the point made by the Claimant. Mr Greenow replies, with a copy to the Claimant saying that his initial thoughts are, this is similar to the third party arrangements with care homes. If a family are willing to pay extra for a particular provider above our rate, he doesn’t see a major problem. Of course, we might get challenged but think this is unlikely.[84]Mr Owen replies to say to the Claimant, “I tend to agree with you and also Adam’s point, that the family are happy and a challenge is unlikely then that is fine. Can you broker please. It does raise another question around Dom Care Agency’s availability for us and how they may be playing us here. A discussion for another time maybe?[85]Mr Dylan Owen says that by raising this matter the Claimant was doing his work and is a good question. They considered it and did not agree to top up payments and confirmed that that was their practice. They had generally taken legal advice but it wasn’t specific to this email. There may be top up for residential care but not domiciliary care. They worked well with the provider and in the end the charge was not made. Mr Owen said it was valid for the Claimant to raise this issue. We accept this evidence of Mr Owen because it is in line with the replies that he gave to the Claimant at this time and the fact that there was some uncertainty regarding the top up issue which he did further consider in the way that he said he did.[86]On 1 March 2019 Miss Lorna Simpson, HR Manager (Operations) wrote to the Claimant and copied to Mr James Munro, a letter inviting the Claimant to attend an investigation interview with Mr James Munro on 14 March 2019. The letter reiterated the four allegations that had been made and that the matter was being investigated under the Council’s disciplinary procedure, copy of which Miss Simpson enclosed. Miss Simpson says in the letter that investigation interviews with potential witnesses commenced this week and a further two interviews are schedule at the time of writing the letter and should the investigating officer wish to meet any other potential witnesses, would endeavour to do this prior to meeting the Claimants on 14 March. Miss Simpson says it should be possible to provide the Claimant with an accurate timeframe for concluding the investigation when they meet on 14 March 2019. Miss Simpson ends by saying, “in the meantime, please do not hesitate to contact James Munro or herself should the Claimant have any queries”. Investigatory interview on 14 March 2019[87]A transcript of the investigation interview can be found at page 833-854 of the bundle. The Claimant says that there is reason to believe that he is the victim of a malicious and possibly criminal conspiracy. He refers to the grievance appeal, was not fair or as proper as it ought to have been and was completely stage managed by the Council itself to the office of Human Resources (as both clerk of the court as it were and as a litigant in defence against his appeal). The Claimant says the intent behind the criminal prosecution failed because there is no crime and now the same perpetrators, having failed to prosecute him for a crime, have dropped their charge to one of gross misconduct. There may have been errors ironically but ought to have been shared by the Council itself there has been no gross misconduct. The Claimant says the entirely misguided attempt to assert that he has abused a colleague is false, malicious and opportunistically discreditable but together with a growing dossier of evidence it does provide further substance as opposed to fact that he has been maliciously and improperly prejudiced. Accusations are denied absolutely.[88]In relation to the allegation about taking more leave than he was entitled to, the Claimant was asked how has this been discussed between himself and the line manager at the time, including to now and then and now, to which the Claimant said that he had no recent discussions about any of it some but not all of it and a much smaller number than 12 and a half days was raised with him previously about leave. He was able to clarify a number of them and the ones he was not able to fully identify an activity naturally requested that they seek out further information such as his clock on records, his logging in records in IT so they could start to identify exactly what had happened on these dates but he said that nothing else until he received this letter. He has been off a number of months. The Claimant said it’s a long period of time when nothing has happened before I get accused of a crime and gross misconduct is not a reasonable course of events. The Claimant says he is not admitting anything but if there has been clerical errors and omissions made in good faith there was ample remedy to resolve any excess leave that has been taken. The Claimant says that he would like to see all of the evidence and records so that he can respond fully in a considered way.[89]In relation to the second allegation he referred to the freedom of information request because it does not apply the absence policy in anything like a consistent manner, in fact in the vast majority of cases like his, it is not applied and he is talking over 95% of cases like his.[90]In relation to the third allegation he says that he has rung the office and not Dylan Owen but is that really gross misconduct? He says it is preposterous that this offence had been handled in this way.[91]In relation to the fourth allegation, he denied this and that he was sure that the investigator will find, that witnesses present, that his conduct was neither inappropriate or offensive. There was a discussion in the office and they had a difference of opinion. It was articulated a little bit. The Claimant says he was discussing continuing health care and the way that they failed to exercise the duty of care in charging health decisions which not only cost the Council millions but also aiding and abetting of fraud against servitude as beneficiaries when they are paying for services that ought to be delivered free of charge by the Health Board. That was the subject of the discussion. The Claimant says that if he is provided the allegation in writing he would respond. The Claimant says that the idea that he is not fulfilling requirements of his role is preposterous and absurd and there is no exception for him to be treated in this exceptional way except for the malicious conspiracy against him and you can articulate the motivations, the reasons, the evidence for why that course of action is being pursued against him.[92]The Claimant says there are a number of flexible working arrangements which he used to use to manage his sickness levels for everyone’s benefit, for his own benefit, for the Council’s benefit for the service’s benefit and for service user’s benefit and the decision to restrict that was inevitably going to drive up his levels of sickness and there is no justifiable reason.[93]He says, “Dylan has tried to justify it which again, only reveals either his incompetence and lack of knowledge about the service and/or his real motivation and when you take that whole statement and analyse it in the whole, which I have done and broken down and rebutted on almost a line by line basis, is self evident what is really going on here. I am hopeful you will see this James” the Claimant says, “I am ready, whatever happens, I really don’t care what the Council wants to do now, I am ready to go to law, this is chance, a final chance”, he sees to avoid it.[94]After the finance investigation interview, Miss Lorna Simpson had a discussion with the Claimant, she says, was specifically in respect of his wellbeing and James Munro was also present. In a letter of 15 March 2019, after reiterating this, Miss Simpson says that, in respect of consideration of a temporary change of the Claimant’s direct line management, pending the outcome of the disciplinary process, he had not yet approached the service area about this. Miss Simpson provided details of the Council’s own counselling service. Also, in relation of consideration, mediation with Mr Dylan Owen, it was agreed this may be an option to explore further, upon conclusion of the disciplinary process though not at the current time. In the letter Miss Simpson says that the Claimant asked about the possibility of redeployment to another post within the Council and she encourages the Claimant to view the post being advertised on the Council’s website. Other matters such as transcript and possible employment references were also referred to in the letter.[95]By email on 21 March 2019, Dylan Owen wrote to the Claimant to say that, following a conversation with Lorna Simpson and a conversation with Martin Heuter, he writes to confirm that the Claimant’s line manager would transfer to Martin Heuter from tomorrow onwards. This was an interim arrangement at the Claimant’s request and will be reviewed at an appropriate time. Mr Dylan Owen says that the line manager should eventually be Mr Adrian Andrews. Mr Owen says that with ongoing HR involvement and outstanding issues, Mr Owen adopted this role since he became unwell, especially as Adrian was new into his post. The plan was to review and return line management to Adrian Andrews at the point when the HR issues have been resolved and that remains the longer term plan.[96]On 8 August 2019 Mr James Munro wrote to the Claimant following the investigation outcome. A decision was made that there is a case to answer in relation to allegations 2 and 3. A disciplinary hearing will be arranged and the case will be heard by an independent disciplinary panel. The letter explains that in relation to annual leave entitlement the Claimant had appeared to have engaged with line management to address the situation and be prepared to remedy any identified loss of hours. This situation had been dealt with between the Claimant and his line manager with the assistance of HR colleagues as appropriate and did not warrant any further formal action.[97]In relation to allegation 2 being the number and frequency of absences, Mr Munro concluded that this is a breach of the sickness absence management policy and will be heard by a disciplinary hearing panel.[98]In respect of failure to report absence from work in line with the sickness absence policy, Mr Munro concluded that the Claimant had failed on a number of occasions to verbally notify the line manager that he was unable to attend work due to sickness absence. Litigation had been provided but even records from Dylan Owen show that while he may have made some notifications about taking sick leave, these notifications had frequently been made to other members of staff by email and not in a timely manner, thereby breaching the sickness absence management policy. That allegation will be heard at my disciplinary hearing panel.[99]In relation to the fourth allegation of portraying inappropriate and offensive behaviour towards a work colleague, it was concluded that there are different opinions of the nature of the incident and perceived effect or the interaction on the individual, Dominique Jones. The Council’s code of conduct has not specifically addressed this type of behaviour and therefore considered this situation to be dealt with by the relevant line managers of those involved and the assistance of HR Colleagues and that of mediation services as appropriate. Therefore this doesn’t warrant any further formal action.[100]Mr Munro says that he has concluded that an amendment should be made to the wording of the allegations against the Claimant saying that: 1. During the period of 4 March 2018 to 13 December 2019, the Claimant has had an unacceptable level of sickness absence leading to a breach of the sickness absence management policy. 2. During the period of 17 September 2018 to 6 March 2019, the Claimant failed to follow the Council absence reporting procedure leading to a breach of the sickness absence management policy. It is said that these allegations have the potential to amount to misconduct. The Claimant will be written to in due course with further details and a date for the hearing.[101]Mr Munro had sent a letter informing the Claimant the date of the disciplinary hearing together with a 235 page bundle. The Claimant responded in an email of 23 August 2019 to Mr Munro, copied to Mr Paul Bradshaw, requesting copies of all documents and then enough time to prepare in that the 30 August was not a reasonable date for the hearing and asked for a rescheduling.[102]The Claimant says he heard nothing until he collected a package from the local Post Office on 21 October 2019 which required a signature. The package had been franked 12 October 2019 by Royal Mail. There was an invitation letter to a hearing either the 23 October or 24 October, as stated in the body of the text. The Respondents had still not sent all the documents so the Claimant emailed Sadie Hughes and James Munro explaining the situation to request a rescheduling. The response was that the hearing would go ahead but the Claimant advised the August date was clearly invalid and the policy allowed him to reject one date, even without valid reason. The Claimant believes that the timescale was motivated by him having made protected disclosures previously and a desire, on the Council’s part, to remove him from his position.[103]Mr Martin Heuter was informed of this. The Claimant also, on 7 October, sent an email to Ali Bulman, detailing an ongoing incident raising breaches in the Social Services and Wellbeing Act Wales and misrepresentations to elected representatives. Disciplinary hearing – 24 October 2019[104]On 24 October 2019 the Claimant attended the disciplinary hearing. At that hearing the Claimant read out a prepared statement about the impropriety of arrangements for the meeting and the wider issues of his treatment.[105]The meeting was adjourned before the Claimant was told that they would reconvene at another date. The Claimant believes that the insistence that the hearing should proceed prior to his statement, an imposition of an unreasonable timescales relating to it, were clearly motivated by disability discrimination. In order to “weaponise my absence levels”. The second disciplinary hearing – 3 December 2019[106]The Panel consisted of Shaun James, Senior Manager Technical Services (Chair) and Sharon Nicholls, Employee Relations Business Partner. Mr James Munro presented the case. Mr Dylan Owen was a witness. The transcript of the hearing is on pages 751-808 of the bundle. During the course of the hearing the issue of flexible working or working from home was asked by Sharon James of Dylan Owen. Mr Owen said it had not been allowed but that is going back to the days of Lee and is something that he supports because the brokerage service is one of the few services on the Council, where they had not been able to do that and the team has been vulnerable and fragile and has been for a long time and really they need people to be working together and need them to be in one place. This is something that they can look at going forward then they need a strong stable team but working flexibly is impossible to date.[107]Mr Owen says, I have had a few members of staff come to him and raise real concerns about all kinds of issues, including lack of supervision, that they feel they have been asked to do things above their pay grade because the Claimant is not in work without planning etc and he has had that from a large number of people and from within the team. Mr Owen said they clearly needed a team manager for the brokerage service because they have had times when they have had literally nobody in the team because of different illnesses etc., and the Claimant, they not being available either and they have had situations where significant large transfers of care had happened when the Claimant wasn’t available and he went off ill or he doesn’t know if it was ill or unannounced leave or whatever and therefore the service was not in a safe situation at that point. It goes on, Mr Owen says he thinks the brokerage, which he doesn’t want to play down the role of brokerage, but it is an essential part of the service to make sure that the service is safe and is facing significant challenges. Mr Owen says, if you were to ask me, in fact scrutiny asked me the other day, what do I think is the main challenge that Adult Social Services face in parts at the moment, we talked about the availability, provision and procurement of domiciliary care is a real challenge. So without doubt it is a high-risk service and it’s a vulnerable service and it is a service that needs people in post to do the work.[108]The Claimant robustly defended his position. He pointed out that on 11 September 2019, Martin Heuter had granted another employee, the ability to work from home and would not afford him the same opportunity which he contended, amounted to less favourable treatment because of his disability. He says he was prevented from asking relevant questions of Mr Dylan Owen which he believes shows clear motivation and desire to treat him unfairly for having raised a protected disclosure.[109]By letter dated 9 December 2019 the outcome of the disciplinary hearing was sent to the Claimant. The letter included reference to the fact that during the hearing the Claimant acknowledged that he had not always followed the procedure as laid out in the absence management policy with regards to sickness absence notifications but, however, asserted that contact was either attempted or made by other team members or made by other means due to incapacitation. It was also stated that the stress risk assessment questionnaire was a mandatory requirement within the absence management policy but on two occasions the Claimant was offered the opportunity to complete it, he confirmed that he felt that it was of little benefit to his circumstances and chose not to engage in the process. The absence levels within the date period equated to a significant amount of days which exceeded the trigger points within the policy requiring intervention. The letter noted that it was evident that throughout the investigation hearing the Claimant considered there to be an undercurrent of persecution by the service. A decision was therefore made, the panel found that misconduct had occurred due to unacceptable absence. It was recommended that the service reference the occupational health report and consider appropriate trigger levels regarding the debilitating back condition should the condition still be a prevalent matter. It was recommended that home/agile working be considered by the service in exceptional circumstances by line manager approval. The panel decided that the Claimant’s actions warranted a sanction of written warning which remain on the record for a period of 12 months, effective from 3 December 2019 with a view to see improvement of sickness absence over a sustained period of time. Appeal against disciplinary decision – 14 December 2019[110]By letter dated 14 December 2019 the Claimant lodged an appeal against the outcome decision of the disciplinary hearing. The appeal letter questioned the lack of clear reasoning as to decision making together with a number of self-contradictory findings. The Claimant says that the outcome letter made no reference to the fact that his treatment in the matter was profoundly exceptional and inequitable as proven by the unlawful obstruction by the Council in unsuccessfully trying to prevent the freedom of information data that was finally provided only after six months of his persistence and threat of law that proved that profound exceptionality. The Claimant says that after many “trials” during which half a dozen charges, including criminal and gross misconduct, have been made against him, all but one of which have so far failed, this last charge of sickness absence misconduct, is one that the Council is now clinging to as its last excuse to suppress him and invade the consequences of its own behaviour, for reasons that any competent and independent judgment will have little difficulty in finding. The Claimant says that the evidence strongly supports his long sustained accusation that he is being persecuted, for one or more of a number of motives that he has described in his previous “trials” in a manner consistent with conspiracy.[111]On 13 March 2020 the Claimant began a period of absence from work. The Claimant says this was because of stress and anxiety resulting from the actions of the Respondents.[112]The Claimant had attended a disciplinary appeal hearing on 13 March 2020. The panel consisted of Mr Michael Grey, Head of Adult Services (Chair) and Sarah Chistoforou, Employee Relations Business Partner. There was one subject of the appeal, the other matter not having been upheld by the previous disciplinary panel, and the matter that proceeded was namely, “during the period of 4 March 2018 to 13 December 2018, the Claimant has had an unacceptable level of sickness absence leading to a breach of the Sickness Absence Management Policy”. The sickness absence from 5 March 2018 to 13 December 2018 equated to 10 separate episodes with a total absence of 47.5 days. There were five periods of sickness that were related to either “back and neck problems” or “other musculoskeletal problems”. The total period of absence due to these reasons was 14 days. There were five periods of sickness absence with a total absence 33.5 days between 5 March 2018 and 13 December 2018 and were not related to sickness absences caused by “back and neck problems” or “other musculoskeletal problems”. The panel said they were content that even with the above consideration the level of absence is unacceptable, therefore breaching the sickness absence management policy. The panel acknowledged that the above breached constituting misconduct as set out in the disciplinary policy and procedure and whilst the disciplinary policy and procedure does not have an exhaustive list of what constitutes misconduct, failure to adhere to any of the Council’s policies as they are applicable to the employee or their role/ station is provided as an illustrative example. The panel noted section 5.8.10 of the disciplinary policy and procedure which states six potential outcomes of a disciplinary hearing. The panel therefore concluded that that a written warning in this case was an appropriate outcome of the disciplinary hearing. The panel were therefore not upholding the appeal.[113]The Claimant says that Mr Michael Grey, Chair, was a close colleague of Mr Owen implying implication that there was a conflict of interest. The Claimant says that the decision to uphold the disciplinary sanction was tainted by desire to treat him less favourably on account of his[114]The Claimant says that he believes the finding of the appeal were clearly motivated by the desire to treat him unfavourably, resulting from him having made protected disclosures to his employer previously and the obvious desire to remove him from post. They were again tainted by disability discrimination as well. We reject these allegations and find that Mr Grey did find as he did for the reasons he gave.[115]After the appeal hearing the Claimant returned to his office and says that Sally Beech had been insinuating that he was AWOL and that was because he did not disclose to his colleagues where he had been for confidentiality reasons. The Claimant says that that day he visited his GP and was signed off with work related stress and would not return to work after this day. Events later in 2020[116]This time the Claimant’s line manager was Mr Martin Heuter. Mr Heuter said that the Claimant’s absences had a significant impact upon his team, that he frequently had to act as de facto team manager until the Council were able to fill the role with temporary arrangements. From the time that the Claimant commenced his sixth absence he had overall responsibility for managing the Claimant’s sickness absence. In accordance with the absence policy he made contact with the Claimant. On 22 September 2020 there was a skype welfare meeting with the Claimant and Mr Heuter was joined by Miss Michelle Griffiths.[117]On 14 October 2020 Mr Heuter sent the notes of the meeting of 22 September 2020 to the Claimant. In the letter attaching the notes Mr Heuter says, “As discussed and agreed with you at the meeting, on your return to work we will agree a level of remote working for you”. In addition, Mr Heuter would review the trigger points as appropriate and consider short term annual leave requests to manage the Claimant’s back problems. His reference to the Claimant stating that he wanted a meeting between the legal team and the Respondent’s legal representative to discuss and acknowledge wrongdoing by named Council Officers and assurances that such alleged wrongdoing would not occur in the future. Mr Heuter said that all allegations to date had been fully investigated and concluded and therefore they do not accept that a meeting as requested, would be appropriate. Mr Heuter says the legal representatives are at liberty to put forward proposals which the Claimant believes might achieve the same. But that is a matter for the Claimant. Mr Heuter says that the occupational assessment of 28 August 2020 they look forward to the Claimant’s return to work upon expiry of the fit note and that the above measures would be implemented as recommended by the occupational health report.[118]The occupational health report is dated 4 September 2020 and in relation to the appointment that took place on 28 August 2020. Dr Owen Thomas, Occupational Health Physician, undertook the appointment. The report is on page 602-605 of the bundle. The reason for the referral is said to be that the Claimant has been absent from work since March 2020 because of stress related symptoms. The report recounts the history of the matter, given to the occupational health physicians by the Claimant. Dr Thomas says the Claimant would potentially be fit to return to work if the issues within the workplace could be resolved. Dr Thomas says that his feeling is that the Claimant has developed psychological symptoms in response to his perceptions of issues within employment. These feelings have developed because of employment that are the main barrier to the Claimant being able to sustainably return to work. Dr Thomas says that in terms of adjustments for back pain then you would mirror those that were set in his last report with flexibility of hours, contingency for home working and also consideration of short term leave to manage symptoms which can occur unexpectedly. There may still be some increased levels of short-term absence and would ultimately be for the organisation to consider what level would be sustainable. Dr Thomas says that given the frequency and recurrence of back pain over many years it would seem more likely than not that the Equality Act 2010 will apply and therefore reasonable adjustments should be put in place if reasonably practicable to do so.[119]The Claimant replied in an email of 16 October 2020 to Mr Heuter to say that the meeting notes seem somewhat non-committal compared with his understanding of the meeting they had. The Claimant says can you confirm that you/PCC have made absolutely no commitment at all to change my working conditions with regard to flexible working, home working, annual leave or trigger levels. Only that you will consider these things again after my return to work? What is to prevent clarifying these restrictions prior to return to work? The Claimant says that Mr Heuter will be aware it is his perception these measures were taken in order to drive up his sickness levels in an attempt to find justifiable cause to take action against him. The Claimant says he has suffered the indignity of formal warnings and spurious allegations consequential to this so he is concerned that the retreating commitment to fair and equitable treatment of him to be in writing against the verbal assurances given.[120]On 20 October 2020 Mr Heuter replied to the Claimant’s email of 16 October 2020 and said that, as confirmed at the last meeting, he would consider flexible/home working, annual leave/trigger levels, as and when the Claimant returns to work. Given the current Covid pandemic it would be remiss of him, he says, on behalf of the authority, to commit to a change in working pattern now which may require discussion/alteration upon the Claimant’s return to work which, based on his current sick note, would be January 2021. Mr Heuter says the authority are committed to making any reasonable adjustments which may assist him in his role and for the sake of clarity and whilst he is keen to move forward in a positive manner, he must confirm that the Claimant’s allegation regarding deliberate measures taken is not accepted.[121]Mr Heuter goes on to comment about the grievance and disciplinary investigations, that the authority did not raise criminal charges against the Claimant rather the investigation was initially conducted by income and awards as there was an allegation relating to annual leave. As a result of the investigation findings the allegation was not taken forward to a hearing, those matters are concluded and as such they must look forward to the future and how best to support the Claimant in his return to work which is where Mr Heuter says his focus lies.[122]On 21 October 2020 the Claimant emailed Mr Heuter in which he says, “together with the duplicitous behaviour in our previous meeting and the different notes provided, I can now only give way to written or recorded communication”. In that email the Claimant also says, “As far as for your welfare meeting that he would attend though he objects to Jo Davies being involved. The Claimant says she was present advising me with ridiculous measures that started this, also describing my questioning of the equitability and fairness as “confrontational”, subsequent freedom of information data proved the inequity. Jo has shown no good faith towards me in a professional capacity. Jo is also advising me to threaten Sarah for four absences in the year despite her Lupus and overall impeccable performance in post. Jo is not competent with regard to employees with a disability or long-term condition”. The Claimant goes on to say, that they have three consistent occupational health reports pointing out the stupidity of the Council’s position with regard to these matters and despite Mr Heuter’s attempts to portray himself and the Council having some concern for his welfare, Mr Heuter’s actions and lack of them reveal that nothing has in fact changed and he looks forward to something tangible to take from the next meeting.[123]The notes of the meeting sent to the Claimant, a following note appears, “MC raised the trigger levels in the sickness absence policy in that he had 5/6 absences prior to discussions and said he was not sure why everyone jumps on his sickness. What is an appropriate level as that is within the gift of people present today?”. Jesse stated that with regard to the “elephant in the room”, the only way is to discuss during a protected conversation with legal people in the room. Jesse stated that he does not feel safe working under Dylan Owen, Clive Pinney and HR and they all acted with “in proprietary and caused damage”. (This is discussed in the stress risk assessment). He needs an acknowledgement, what has happened is wrong. Jessie asks how can he come into work without knowing if there is a conspiracy against him? Martin asked for clarification of what “acknowledgement of what has happened” means. Jessie stated that this would be part of the negotiation and he needs apologies, meaningful reassurance and they wont be able to act like that towards him in the future. Jessie stated that words don’t mean anything and that he has three years of written evidence. This is not just him having a bad one to one. He has been interviewed under caution. Jessie confirmed he could not go into further detail, and needed to have a protected meeting. Martin discussed trigger points and confirmed he would need to discuss this with HR to consider”.[124]On 22 October 2020 Mr Heuter wrote an email to the Claimant saying he did not accept the comments the Claimant made against him and in particular denied that he has been prejudiced or duplicitous. He found the tone and the unfounded allegations against him aggressive, abusive and totally unacceptable. Mr Heuter says, in all future correspondence, please act in a professional manner. Mr Heuter says that insofar as the allegations that Dylan and Adam have committed financial abuse of a vulnerable adult through fraudulent activity are concerned, he has discussed these with Clive Pinney as a monitoring officer. In light of the seriousness of such allegations Clive has asked that you put your detailed allegations to him or to Alison Bulman in writing, together with any evidence that you may have in support. Mr Heuter goes on to say that in considering the welfare of all officers involved, it will be himself and Michelle Griffiths that will attend welfare meetings moving forward. They would need to rearrange the welfare meeting scheduled for 27 October 2020 to 5 November 2020. Mr Heuter says they are seeking to facilitate his return to work for the Claimant and it is imperative that they work together on this within an environment of mutual respect and trust and communicate in an appropriate manner with one another.[125]The Claimant replied on 26 October 2020, saying that Mr Heuter had expressed an opinion about things which he has no experience or involvement nor in fact a reason to base it on. The Claimant also said they had a meeting where Mr Heuter assured him that things would change but then wrote notes of the same and very carefully made no commitment to anything. The Claimant did not accept Mr Heuter’s description or assessment of the nature to any of his communications. The Claimant says we have no trust and have been shown no respect. Every action taken only continues to reinforce that. In respect of the financial abuse of a client, the Claimant says Ali Bulman previously received notice and a decision to do so on the basis that was unlikely to be challenged from the victim. The experience has eroded any faith he had in them to police the Council’s own behaviour. The Claimant said he would be able to attend on 5 November 2020.[126]The meeting with Mr Heuter and Michelle Griffiths took place on 18 November 2020 via Teams (virtual). On 26 November 2020 notes of the meeting were sent to the Claimant. There is reference in the notes to the Claimant saying, there are practical issues to be resolved at his returning to work and he does not understand why this cannot be done now, prior to returning to work. Mr Heuter explained that at present all staff work from home (unless there is a business need to attend the offices in person) and the Claimant would be in the same position on his return to work. However, post-covid this has to be reviewed in line with future plans of the Respondent and business needs in/of the brokerage team. The Claimant also stated he could not understand why he had to return to work before trigger levels could be determined. Mr Heuter explained that this needed to be done in line with policy and will be the same for everyone who is in a similar position. Mr Heuter assured the Claimant that when discussing this on his return it will be done within policy and will be looked at sympathetically. The Claimant stated that nothing has been done to alleviate this situation and that he feels the Council is trying to “manoeuvre” him out of the Council. Michelle Griffiths stated that she understands that is the Claimant’s view but assured him that there is no attempt to manoeuvre him out of the Council. The Claimant said he did not appreciate the response and does not take anything at face value and had good reasons for not doing so.[127]With reference to ongoing counselling, Mr Heuter asked if there was anything else he or the Council could do to enable the Claimant to return to work. The Claimant said that he did not understand the refusal to agree to his request for flexible working, trigger point review and short-term leave for sickness absence. The Claimant said there was malicious intent in not granting this prior to returning to work. This was denied. The Claimant brought up the possibility of a protected conversation to resolve the issues. Mr Heuter outlined the issue of redeployment to the Claimant and the Claimant answered he would consider that. Michelle Griffiths outlined that once the current fit note expires and the Claimant does not return to work an ill health capability hearing will be convened as per the sickness absence management policy. The possible outcomes of such a hearing would be: - You are fit to return to work. - A warning, either written warning or a final written warning. - You are not fit to return to work – which would you choose on grounds of ill health capability.[128]The Claimant asked who would be in the hearing and use the word “lacky”? Michelle Griffiths rejected this term and said that for officers of the Council, such language was unacceptable. There was to be another welfare meeting in about six weeks’ time.[129]Prior to the meeting on 18 November 2020, the Claimant had sent an email of 17 November 2020 to Miss Alison Bulman and received an email from Miss Bulman dated 11 November 2020 referring to an email of October 2019 from the Claimant which, amongst other things referred to misleading draft reports, bullying intimidation, incompetence in procurement and a commission which said that he feels he is in a slow motion car crash having pointed out the danger but they are now actually in collision, the bonnet crumpling and our heads rushing towards the steering wheel. It has been the most frustrating, disheartening and embarrassing period of his professional life. There is also reference to the fact that Miss Bulman will be aware that his working relationship with Dylan is entirely broken. Miss Bulman did reply on 11 October 2019 saying that she would like to meet with the Claimant, Martin and Dylan and understand concerns about the DPS and how they can resolve them but in relation to the relationship with Dylan they need to discuss and agree how this can be fixed and how they can find a way forward.[130]In the later email of 11 November 2020 Miss Bulman says she did consider the financial abuse of a vulnerable adult for the reason it was a third party payment so no financial detriment to the individual. A family member had offered to make a top up payment to enable them to use the provider of choice which, on reading the email, appears to have been a previous relationship with a client. The issue of third party payment is something they have addressed and developed a clear operating policy since the time of the original email. In the reply of 17 November 2020 the Claimant sent Miss Bulman for her belated response to his email, highlighting one of the many cases of unlawful and abusive behaviour perpetrated by the Department against vulnerable service users in carers and families. It says that he is quite unwell as a result of his unfair treatment with little sign of any improvement in that treatment. As part of that reply the Claimant says that while Martin (Heuter) is required to maintain the charade of having concern for his welfare during his ill health, he does not believe he is now an appropriate go between on the more serious issues at hand. More senior agents of the Council, appropriately empowered, to take the lead if he had to discuss protected conversations or other means of resolution. The Claimant says the Council’s multi failed attacks against him are not only shown to be without merit but manifestly prejudicial, defamatory and selfevidently conspiratorial, as evidenced within the account of his own written evidence. The motivation for which has been an attempt to stifle his justified belligerence towards the arrogant improprieties of his superiors. The Claimant ends by saying, because the Council has repeatedly doubled down on its atrocities towards me, only a significant and meaningful remedy can now suffice.[131]On 10 December 2020 Mr Heuter emailed the Claimant to say that the Claimant’s assertion that the Respondents remain unwilling to consider what reasonable accommodations of flexible working arrangements you/PCC are willing to agree to is incorrect. Regarding working from home, this had been agreed and attendance in the office will be discussed as and when this changes. Adjustment of sickness absence trigger levels were also agreed that this would be taken into consideration but they could not simply agree, for example, instead of 3 absences, you can have 8 prior to triggering a formal procedure. Mr Heuter says that, as has happened previously, they will make adjustments to the trigger levels but will not specify a number as the point at which it may be appropriate to move to a formal procedure will depend not just on the number of absences but on various other factors such as reasonable absence, duration, whether sickness absence reporting procedure has been followed and so on. Mr Heuter says they would, of course, communicate with the Claimant in respect of each absence so that he is fully aware when he is approaching point when they may consider formal procedures and need to be invoked.[132]Regarding utilising annual leave when the Claimant was unwell instead of sickness, Mr Heuter confirmed they will allow this where it is appropriate, however, they will need to be considered as time goes along in terms of frequency, impact on the team and so on. Mr Heuter says, as discussed, we are now able to work much more flexibly but they will need to be mindful of the core duties of the roles and requirements of the team which need to be covered and may reduce that ability to adjust hours on a given day.[133]Mr Heuter said that there are occasions when he needs discretion to make concessions when the Claimant was unwell. Mr Heuter recalled that one of the Claimant’s colleagues, Sarah, had a long term condition and he cannot remember if it was sickness or annual leave but he quite possibly allowed her to go home, he cannot quite remember. Mr Heuter said that from members of the team he had specific complaints about the absence from work of the Claimant. These were informal and not formal complaints. Mr Heuter said it was the Claimant’s needs as well as the Department’s needs that he took into account. Mr Heuter said that there are a number of absences, such as to do with a child, he granted annual leave to the Claimant. Mr Heuter described the relationship with the Claimant to be a good working relationship but it became difficult when the Claimant was on the long-term sick leave. He described the unacceptable language used by the Claimant. Mr Heuter said that there were attempts to get in touch with the Claimant and that he sent the Claimant a stress risk assessment template so that he could put his views on and that Mr Heuter could put his comments. Mr Heuter said that he offered the Claimant support, for example a counselling service and all the things a direct line manager would provide. Mr Heuter said that in respect of disciplinary grievances it is best if he focused on the work with the Claimant and senior managers, including Dylan Owen would deal with the other matters. Mr Heuter asked the Claimant if there was any other support that might be suitable. Mr Heuter said it was quite clear that the Claimant was unhappy about decisions in the past and it had an impact on him and there was no doubt about it. Mr Heuter said he had no influence in relation to the disciplinary and other matters. Mr Heuter said he had no recollection of what there was in place and what the Claimant says was taken away and Mr Heuter did not research the matter. Mr Heuter said that the Claimant’s concerns about matters regarding top up payments and generally were valid but they were dealt with. Mr Heuter described how the Claimant had demands around admissions of wrongdoing and apologies and things not shared and the Claimant and the organisation were too far apart. Mr Heuter and HR, Michelle Griffiths, sought to clarify if the Claimant’s absence was medical or not and a request was made that the occupational health provider contact the Claimant’s GP but the Claimant refused.[134]Mr Heuter assured the Claimant that he would look sympathetically at the matters which had been raised and which he had given clarification on regarding absences. We accept the evidence of Mr Heuter that he was seeking constructively and positively to engage with the Claimant and to resolve the matters and provided clarification of these matters subject to the conversation when the Claimant returned to work. This was not an unreasonable attitude on the part of Mr Heuter, the line manager. Mr Heuter hoped that the Claimant would trust him enough and give him the benefit of the doubt that quite clearly the Claimant’s concerns are very much wider and Mr Heuter couldn’t give him what he wanted. The Claimant would say on occasions to Mr Heuter that he could not share things and matters would be beyond Mr Heuter’s paygrade. Mr Heuter reminded the Claimant to use language professionally but he didn’t and he describes how they went round and round in a stalemate. Mr Heuter said it contributed to the reasons when he was burnt out himself, that he took sick leave in December 2021.[135]Mr Heuter was put in a difficult situation to line manage the Claimant and clearly there were longstanding issues that the Claimant had with individuals other than Mr Heuter. We accept Mr Heuter’s evidence that he made real efforts to engage with the Claimant and to deal with matters within his remit such as dealing with issues of absence which would arise during the time he line managed the Claimant sympathetically and also suggestions as to what would be the position should the Claimant return to work after he went on long term sick leave. We find that the Claimant did not engage with Mr Heuter and had reached a position where his distrust for the organisation included a distrust of what Mr Heuter was saying and rejected Mr Heuter’s assertions that he would deal with him sympathetically. We find that Mr Heuter made all reasonable efforts as a line manager would be able to do to meet the expectations of the Claimant regarding the recording of absences from work and in consequences.[136]On 21 April 2021 there was a further welfare meeting between the Claimant and Mr Heuter and Miss Michelle Griffiths via skype. Notes of the meeting were sent to the Claimant on 6 May 2021. The Claimant did not agree it was a full and accurate record of the meeting. The Claimant says in his email in response that he had already explained why Mr Heuter’s wordsmithing, conciliatory sounding responses had promised nothing and had failed to alleviate his well-founded concerns about his historic, ongoing and probable future treatment. Notes of the meeting included a summary of matters from the absence of the Claimant from March 2020. It was a reiteration of the three points about working from home, adjustment of sickness absence trigger levels and utilising annual leave when the Claimant was unwell instead of sickness. Mr Heuter said that they were not challenging the Claimant’s ability. It was noted that the Claimant was receiving support from his GP and NHS services which was helpful to varying degrees. The Claimant says that he was undergoing counselling and receiving therapy for PTSD and anxiety. Mr Heuter confirmed that, amongst other things, much of the work was being undertaken remotely and contract managing visits, for example, to care homes, were undertaken by video link or telephone. Ill health capability was discussed with HR confirming that the Claimant was unable to return to his substantive post and it was clarified by occupational health that this was for a medical reasons then given the length of time that he had been absent they will arrange an ill health capability hearing. There would be a possible outcome of that being a dismissal on grounds of ill health capability. If the Claimant opted to explore redeployment then the Claimant would remain on the register all through the process and continue to have the opportunity to secure an alternative post with the Authority. Mr Heuter said that they had spoken to Dr Thomas from occupational health and their understanding now was that the Claimant’s absence was not due to ill health but rather to the pursued lack of resolution of the issues previously discussed. Mr Heuter says they will now have to consider a different way forward and with that in mind the Claimant was asked to confirm whether he intends to return to work once his current fit note expires on 4 June 2021.[137]Mr Heuter sent a further letter on 25 May 2021 in response to the Claimant’s email. It reiterated a number of points that had been discussed including the three specific matters the Claimant had raised regarding work issues. With regards various internal processes which had been concluded, Mr Heuter set out what these were from February 2017 to March 2020 and confirmed, as previously stated, if there were additional issues the Claimant wished to raise which had not been addressed, he was entitled to utilise the grievance procedure. Mr Heuter says that they have offered management support via Care First in occupational health, they had clarified to the Claimant that to assist him to return to work they would agree a graduated return over a 4 week period and have also offered the opportunity to arrange redeployment, which the Claimant has not yet availed himself of by completing and return a redeployment application form which enables recruitment amongst candidates to post. The Claimant declined to make any suggestions as to additional support that were offered to facilitate his return to work. Mr Heuter said that as the Claimant had been absent since 16 March 2020, occupational health have clarified the reason for the Claimant not returning to work is not medical and therefore could the Claimant confirm when he anticipated returning to work so the necessary arrangements could be made for his return.[138]On 13 October 2021 the Claimant was asked to confirm no later than 5.00 pm on Tuesday 19 October 2021 whether he wishes to either discuss a return to work to the Council or explore any redeployment opportunities. Should the Claimant not confirm by this date the Respondents will assume he does not wish to explore any options and will therefore continue with the procedures to consider his continuing employment at Powys County Council.[139]The Claimant replied on 22 October 2021 and copied the reply to various Local Authority Councillors and also a law firm. He attached a letter that Mr Heuter had sent him in a concise narrative which had previously been provided to Clive Pinney at HR. He realises this will provide some dense reading for those new to the issues which is a serious matter for serious people.[140]The reply is on pages 475-482 of the bundle. The Claimant complains of the deadline which was clearly inequitable. The Claimant says that neither Martin (Heuter) nor the Council have made “any” let alone “all” reasonable attempts to resolve the issues that he has raised. The Claimant says that contrary to the simplistic narrative in Martin’s letter, his ill health has been caused by a combination of the impossible situation he has been placed in, together with the uncomfortable revelations about the breadth and scale of the conspiracy to ruin his career at Powys County Council. He says that hindsight applied to these revelations provided in the Council’s own written evidence reveals that Lee Anderson, Dylan Owen, Clive Pinney, Rebecca Williams, Dominique Jones, John Bevan, Michael Grey and the entire HR Department are liable for a sustained impropriety against him which cannot simply be ignored because it ultimately failed to have him criminalised or dismissed. Ali Bulman also emerges with questions to answer and failed to respond compliantly to concerns that he has raised about abuses of their vulnerable adults and their families and misleading reports to members. The Claimant says it is his perception that is in fact his competence and lawfulness that is the problem together with a corrupted culture within the Council of “Institutional hierarchical prejudice”. He says he has not applied for redeployment because that would not address the main underlying issues, his persecution, victimisation by HR, his management within adult services and the handling of his grievance and appropriate internal criticism of Clive’s (Pinney) input to the terms of the domiciliary care frame of contracts and the impact of those on the implementation problems and ultimate failure of all providers burdened with sub-contracting requirements. The Claimant says that for him to be able to return to work he needs to be materially reassured that he will no longer be a victim or vulnerable to such disgraceful treatment in the future. If the Respondents are unwilling to act with integrity to accept its failures and take action against those who carried out these abuses of him and their own office to reassure that the Respondents do not condone or indeed support the levelling of false allegations, falsification of evidence, conspiracy to make demands and a threat of menaces and more then he would require contractual protection of all the benefits of his employment able to withstand such matters in the future.[141]Any remedy must include rectification of the real and substantial damages which he has had to endure. The Claimant says that as he has articulated previously, he finds the statements that Mr Heuter has given amount to crafted ambiguity. The Claimant says that if the main antagonists are unwilling to make any concessions to resolve matters, the following interested parties are copied to the letters so that they may be advised properly and have a final opportunity to correct the Council’s behaviour.[142]On 17 November 2021 the Claimant emailed Mr Heuter, Sadie Hughes and various other Councillors that he has not received an acknowledgement of any kind from any of them and that he assumes that all the recipients reject the opportunity to achieve a mutually agreed remedy. For the avoidance of doubt he says his previous correspondence constitutes a complaint to the Council. He invites a clear indication of intent failing which he will be free to elevate these matters above and beyond the initiative of the Respondents. Investigation of the Claimant’s complaint by Julia Coggins – 14 December[143]Miss Julia Coggins is an independent HR Consultant. She was contacted by the Respondents on 14 December 2021 and commissioned to undertake an investigation. Terms of reference were sent to her on 6 January 2022. The investigation consisted of a paper-based review of all the documentation sent to her by HR and the number of discussions and emails with HR representatives to answer queries she had which had arisen as a result of a review of the documentation. The full terms of reference set out on pages 1411-1412 of the bundle. The initial scope was to identify whether there are any outstanding matters from the Claimant’s complaints that require further investigation and to provide a report with a full conclusion and the appropriate recommendations in relation to the findings. Should there be matters that require further investigation, Miss Coggins’ recommendations will be considered and a scope for that element will be agreed separately. To be clear, Miss Coggins says she was not asked to deal with the Claimant’s complaint on 21 October 2021 but with “any outstanding matters that have not been previously addressed and ensure that these are considered and concluded before dealing with any other processes in relation to the current absence of the Claimant. In Miss Coggins’ view her investigation into the Claimant’s complaints would require a separate investigation.[144]The letter written to the Claimant on 17 December 2021 by Sadie Hughes, HR Manager, says that the Council has commissioned Julia Coggins, External Investigating Officer, to investigate the complaint. The investigation would be by reviewing documentation available and Miss Coggins would contact the Claimant directly should she require to interview him as part of the process.[145]In terms of reference, as further set out at pages 486-487, which asks that a report is provided and no later than 31 January 2022. The terms of reference are signed by Miss Gemma Gabriel, Professional Lead Human Resource Management and Development.[146]The decision to appoint an independent investigator, Miss Coggins, was as a result of discussions which were held between HR, that is Mr Paul Bradshaw, Head of People Services and Gemma Gabriel, Professional Lead Human Resource Management and Development, and also management in Legal Services since it was considered it best to commission an investigatory officer who could consider all concerns along with related documentation from the Department to identify whether any matters were outstanding and so therefore need to be investigated under the relevant procedure.[147]The Claimant sent an email 7 January 2022 to confirm that his contact details could be given to the investigator and in the email he says it is essential to contact him to ensure that she is pointed to all of the relevant evidence. The Claimant sent the email to Mr Paul Bradshaw and copied to Sadie Hughes and other individuals including Counsellors. The email also says that both Sadie and Michelle are subjects of his complaints and that he would expect none of the subjects of his complaints be involved in facilitating any investigation or indeed in liaising with him whilst this is carried out. Miss Gemma Gabriel replied to say that she would be his point of contact during the investigation and she provided the terms of reference for Miss Coggins.[148]Miss Gabriel emailed on 25 January 2022 to say that due to some leave they had not anticipated by the investigating officer she will provide further information and expected timescale, following the meeting with Miss Coggins on 3 February.[149]Miss Gabriel updated the Claimant on 9 February 2022 to say that the investigator indicated she would conclude by 28 February 2022. The Claimant asked for further information regarding an update with a realistic timetable on 21 March 2022 and Miss Gabriel replied to say that Miss Coggins is looking at concluding her investigation by the end of March. Miss Gabriel also said in that email of 23 March 2022 that she was conscious that the Claimant’s line manager was currently off work and would normally be in touch with the Claimant to undertake welfare meetings and, in the absence of this support, she wondered if the Claimant would like to meet with her so that she can provide some support in the interim.[150]The Claimant replied on 23 March 2022 to say that he had no desire to participate in welfare meetings that had no concern for his welfare or of any tangible support. The Claimant says the Council may aid his welfare and provide support by following its own equality and disability policies, the advice of occupational health and take action against officers that act with malicious intent towards him and make good the losses and suffering that he has endured. The investigation report of Julia Coggins – April 2022.[151]Miss Coggins’ report is on pages 505-516 of the bundle.[152]Page 1422 is an addendum to the report dated May 2022. The addendum has two paragraphs. The first is headed ‘Protected Disclosure’ and Miss Coggins says that following the submission of her report she was supplied with an email chain starting 11 November 2020 from Miss Bulman about the Claimant’s protected disclosure. This email from Miss Bulman was in response to an email from the Claimant in October 2019 which she had not seen. Miss Coggins says she has been informed by HR that with this email exchange in mind, along with the recommendation in her report, the Claimant has been contacted and asked if there is anything outstanding in terms of his protected disclosure. At the time of writing the addendum a response was awaited from the Claimant and the issue is therefore ongoing. The second paragraph had a heading ‘Stress Risk Assessment’ and Miss Coggins says that since the submission of her report she has been informed by HR that as part of the discussions about the Claimant’s return to work, his stress risk assessment will be reviewed completed and actioned in line with the Council’s policy on Corporate Working Arrangements for Stress Management. This issue is also therefore ongoing.[153]In the original report Miss Coggins gives recommendations that deal firstly, with working from home. Miss Coggins recommends that as the Claimant has moved on since October 2021, that home working be reviewed again to see if more clarity can be provided for the Claimant on when he can work from home. Miss Coggins says that one suggestion mentioned by occupational health is that home working could occur when the Claimant has signs that his back was becoming worse to allow him to manage this and that it has the potential to reduce the Claimant’s sickness absence. Miss Coggins says, clearly the needs of the service have to be considered when deciding if this form agile working is a practical resolution and, in addition, consideration has to be given to how the Claimant’s role within this service provision can fit with home working and all of this would be done in conjunction with the principles laid down in the Councils Working Policy.[154]Another recommendation of Miss Coggins was in relation to sickness trigger points. Miss Coggins recommends that this be reviewed and it needs to be more specific and clear, maybe in the style as outlined in the occupational health reports would be helpful, to facilitate a return to work for the Claimant.[155]The third recommendation regarding utilising annual leave when the Claimant is unwell instead of sickness, Miss Coggins recommends that clarity is given to the issue in order to support the Claimant’s return to work. Miss Coggins considered that the statements made by Mr Heuter were confusing that while Mr Heuter’s confirming it would be allowed where appropriate and then saying, “if unwell, the Claimant’s absence should be recorded as such himself”. Miss Coggins says, if the Council take up the suggestion from occupational health and say that the Claimant can use annual leave when he is absent due to sickness, it seems that they are saying they will allow this when appropriate, I would recommend the Council are specific. Miss Coggins says she thinks it would be helpful to lay down how often, for how long and what circumstances the Claimant can use his annual leave entitlement rather than reporting his absence as sickness.[156]Another of Miss Coggins’ recommendations was in respect of whistleblowing. Miss Coggins refers to the Claimant referring to a number of times which may constitute whistleblowing but from the information that she has been provided with she cannot say that this has been addressed.[157]In respect of sickness absence management procedure, Miss Coggins says it would be useful to be provided with the sickness absence data as previously requested by the Claimant for the last three years which could then help to illustrate the improvements mentioned by HR and subsequent action taken in relation to policy.[158]Miss Coggins earlier referred to the 2015-2017 number of employees received formal action and says they could lead to the conclusion there is some validity in the Claimant’s concerns about inequitable treatment in terms of aspects of the Council’s sickness absence management policy. As to recommendation regarding stress risk assessment, Miss Coggins says she requires clarification on this as to whether it is an outstanding area of concern for the Claimant.[159]In relation to occupational health, Miss Coggins says that this highlights to her that there are still outstanding workplace concerns from the Claimant’s viewpoint which have not been addressed to his satisfaction and this, together with other points, illustrate a number gaps between the Claimant’s position and that of the Respondents. If the Council could move forward using the recommendations in her report then progress may be made in the resolution of the workplace issues.[160]The conclusion of the report by Miss Coggins is that whilst undertaking the initial scope investigation to identify whether there are any outstanding matters for the Claimant’s complaints, it has become clear this is a complex matter with many layers that have built up over a number of years from 2017 to date. Her findings, conclusions and recommendations laid out in the report as stated, highlight where she thinks there remain outstanding matters to address and where further investigations and actions need to take place. Miss Coggins says she is happy to discuss her report with the relevant parties.[161]On 25 April 2022 the Claimant wrote to Miss Gemma Gabriel asking what support or help she had in mind. The Claimant also says that if the Council wishes to reconvene the section 111a confidential conversation that Clive (Pinney) unilaterally closed somewhat recklessly, is a very small window of opportunity for the Council to mitigate outcomes. There is then reference to the need for review of the report before making any contact with him. The Claimant says he does not accept that the original copied recipients ought to be excluded from these communications. The Claimant says that if he is not provided with some tangible update as to the expectations within the Council about the outcome subsequent to Miss Coggins’ investigation within 48 hours of report submission (5.00 pm Thursday 5 May 2022) he will recommence the action they paused in seeking justice and remedy via the Ombudsman, other oversight bodies the Crown and the Courts.[162]On 28 April 2022 Mr Paul Bradshaw sent an email to various Councillors, a copy to Caroline Turner and Clive Pinney regarding recent emails from the Claimant. The email says that Mr Bradshaw wants to reassure them that his services management have the support and advice of the HR Legal Services Teams on managing matters to do with his employment in line with Council procedures and good employment practice. It is important that officers continue to support the Claimant to resolve matters and we ask that they do not become involved in the matter.[163]On 12 May 2022, Miss Gemma Gabriel wrote a letter to the Claimant, the outcome of the investigation. In the letter Miss Gabriel said that the Respondents accept the associated recommendations made within the report. The Respondents had understood that all the Claimant’s outstanding queries had been responded to, however, the report made some recommendations to provide some additional clarification and so these have been provided in the letter.[164]The first recommendation was working from home. The Respondents were in the process of implementing new ways of working so it was an opportune time to review discussions. In essence there are three categories of workers. These are place based workers; on the go workers; and flexible workers. The Claimant’s position as Team Leader Brokerage Service would be classed as a flexible worker and, as a result, it was anticipated that providing he has a safe working environment at home (the Respondents will provide a DSE assessment and provide appropriate equipment, including a desk and chair) the majority of the Claimant’s work could be undertaken at home. However, there is some need for the Claimant to attend Council offices for some activities but it is anticipated that at least 80% of the working time could be undertaken at home.[165]Secondly, in relation to sickness trigger points, the Respondent suggest any short-term absence following a return to work for the first 12 months, the adjustment would be:• Five episodes of short-term sickness of any length in any role in a 12 month period, or• Three episodes of sickness which, when combined, total more than 22 days in any role in a 12 month period. This adjustment would be reviewed at the end of that period.[166]The third matter of utilising annual leave when unwell rather than sickness absence, the Respondents would not agree that the Claimant use annual leave when he is unfit for work. It is important that the Respondents have an accurate record of sickness absence so that they can support him appropriately and if any absences when he is unwell and unfit to work should be recorded as sickness. However, the Respondents would support the Claimant using your annual leave to manage your symptoms. This may include taking annual leave at short notice when you feel this would be helpful which would prevent a deterioration of health which may result in him being unwell and therefore unfit for work. The Respondents say that, of course, when such requests are made his manager would need to consider the operational impact of any request and may need to discuss a compromise with him. For example, if staff attendance on the request day of leave is particularly low they may need to discuss how you might provide some cover through the day. However, they would consider favourably at all requests and keep the arrangements under review.[167]In the letter Miss Gabriel said that the reports highlight some areas where they need to seek information from the Claimant, whether he regards the matters as concluded. In relation to the complaint which was referred to as a protected disclosure, they were aware that Ali Bulman, an Executive Director of People, an organisational department, responded to the Claimant and therefore concluded this matter in November 2020. The Respondents therefore consider this matter closed and would be grateful if the Claimant could specify any particular areas that he considers remain outstanding.[168]How sickness cases are managed following steps that were taken to make improvements. Some of the steps that have been taken include revision of Sickness handbook, Training for line managers and Bespoke training for Departments. To support this they have reviewed the monthly reporting and updated automatic emails to managers to support effective absence management practices. Unfortunately, the impact of Covid and subsequent continuity plan being in force (and in part remains in force) resulted in some typical decisions being taken and only critical case work management cases were taken forward. They are therefore unable to provide any analysis of the impact these improvements have had but it is expected that as they move forward to business as usual, this will be revisited.[169]The Respondents anticipated the responses to the recommendations in the letter provide sufficient reassurances on the outstanding concerns to enable a meeting with the Claimant to discuss how to move forward and facilitate a return to work. Part of this would also need to be discussed when they review the stress risk assessment. The proposal is that there be a meeting on 26 May to discuss the contents of the letter and discuss next steps. The Claimant could be accompanied at the meeting.[170]On 23 May the Claimant said in an email, that a formal response to the letter has been drafted and will be made in due course but he was not available on 28 May to meet. He asked for details of the meeting. Miss Gabriel replied to say that the purpose of the meeting was to discuss the content of the matter and move forward. In terms of attendance she had anticipated just herself and the Claimant meeting along with anyone that the Claimant wanted to accompany him.[171]In an email of 9 June 2022 Miss Gabriel said that in the absence of a line manager, she had made contact and offered to meet with the Claimant to discuss any support during the period of absence but, to date, the Claimant has not wanted to discuss this welfare support. Miss Gabriel asked for a response to the suggestion for a meeting by 15 June 2022.[172]The Claimant replied in an email of 9 June saying, “Aside from the wordsmithing, is the “outcome of the investigation” the response to my complaint? A simple question. You will be well aware that you have failed to address the vast majority of my complaint. Don’t assume anything. After 5 months of procrastination, your timescales are risible. I will respond when I am ready, as the Council has done”.[173]Miss Gabriel sent a further email on 13 June which she said that should the Claimant feel his complaint has not been adequately responded to, then he would need to detail this to her in order to provide the Council with an opportunity to respond. The date of 15 June is reasonable to ask to provide some detail around when you are likely to respond and set out your intention or not to meet with her to discuss the letter of 12 May 2022.[174]On 15 June 2022 the Claimant sent an email to Caroline Turner, Councillor James Gibson and copied it to Gemma Gabriel and a number of other County Councillors with a series of attachments. The email was headed to the Chief Executive, Leader of the Council and other interested cabinet members. In the attachments was a “response to an investigation outcome”. The email says that documents are attached so that the recipients of the email could understand his complaints and consider quite how inadequate the response from Gemma has been.[175]On 20 June 2022 the Claimant sent a further email to Caroline Turner and Councillor James Gibson-Watt, copied to various other individuals, mainly Councillors. That email attached a letter saying that he had written on 13 October 2021 to make a formal complaint about a sequence of events starting with improper restrictions being placed on his flexible working arrangements at a meeting in 2017, culminating in a chair of the final disciplinary hearing he was subjected to, stating that it was not his job to answer the legality of his actions while disregarding both law and policy defined against him at that hearing. In that letter the Claimant sets out what he says are serious concerns and abuses together with unlawful and ingenuine activities occurring within adult social care that he had raised with line managers and elevated to Ali Bulman. The Claimant says that with reservations he gave permission and insistence that Julie Coggins contact him as part of the investigation. The Claimant sent out a sequence of events in 2022 in which he also mentions flexible working arrangements which he says were a desperate straw clutching attempts being made to cover up more than five years of improper treatment that he had suffered at the hands of the HR Department. There is also reference to the freedom of information request, the occupational health report and his own representations. Gemma Gabriel proposed that on his sixth absence he be subject to the full weight disciplinary action, certain officers of the Council had been so eager since at least 2017 and probably earlier. The Claimant says that he had been given some hope by the change in political environment and stated intent of the Respondent’s new elected leadership and it for this reason and for the avoidance of doubt, and this reason alone, that he delayed the submission of the dossier of the Council’s failings to a higher due process beginning with the Ombudsman before the seeking of remedy in the open court. He says he will not get any sense from Gemma. The Claimant says that the Council, via its officers, have failed to carry out any investigations into the substance and gravity of his complaint and so it is inappropriate for him to meet with Gemma to discuss a return to work or any other attempt at sweeping this mess under the carpet. He remains aggrieved at his treatment and contempt of the Council’s processing his complaint.[176]By email of 17 June 2022, Mr Bradshaw said to the Claimant that the Chief Executive had asked him to acknowledge and respond to his emails. Mr Bradshaw said that timing wise he would be away on annual leave and needs some time to consider the email along with relevant background information before being able to respond so it will be unlikely to meet the timescale requested. Mr Bradshaw, in the meantime, attached a copy of the final report which was the addendum of Julia Coggins.[177]On 11 July 2022 Mr Bradshaw further responded to the Claimant. Mr Bradshaw said that whilst the Respondents had understood that all of his outstanding queries had been responded to, the investigating officer made some helpful recommendations to provide you with additional clarification. Gemma Gabriel, in the letter of 12 May 2022 provided you with clarification and Mr Bradshaw was satisfied that what was proposed was appropriate and provides the Claimant with reassurance on each of the points. Mr Bradshaw said that the Council remains committed to seek to support and facilitate a successful return to work on its part which is why he has been offered the clarity and reassurance. Mr Bradshaw noted that Gemma Gabriel had offered to meet the Claimant on a number of occasions but the Claimant had not availed himself of those opportunities.[178]The Claimant replied on 17 July 2022 in an email, that his complaint remained un-investigated and unanswered and covered up. The Claimant said that Paul and Gemma have confirmed that prejudice or intent not to make any meaningful investigation to his complaint. Paul and Gemma are as bent as a nine bob note. The Claimant said he had no interest in meeting with Gemma to resolve his complaint, because he made his offer to the Council. The Claimant says that in that email the Respondents need to deal with his allegations about Dylan Owen and Clive Pinney. Although he never “deemed” his communications as a “protected disclosure” he has never been offered an opportunity to make one. He says he should make at least three of them. The Claimant says the report says that the blustering excuses are preposterous and manifestly untrue. The Claimant says that the Respondents can do whatever they like, wriggling and screaming won’t help their ridiculous assertions and the deadline offered to the Council has passed and the matter moved on to higher arenas. The Council had its chance to remedy its errors and corruptions in house but there is no process or policy available to the Council other than further self-incrimination. A consistent theme throughout the entire case. The Council’s oafish culture of unqualified entitlement is their own downfall. Justice will be done and will be seen to be done. The Claimant ends “Good luck on planet Gemma”. Invitation to some other substantial reason hearing[179]By a letter dated 23 November 2022, the Claimant was invited to attend some other substantial reasons hearing. The letter has the signature of Mr Paul Bradshaw, Head of Workforce and Organisation Development on it. Mr Bradshaw said in evidence that he had not seen it and senior staff had put his electronic signature on the document. It was Sadie Hughes who would go to the Directors and discussed with Lynette Lovell who agreed to be the disciplinary chair. Miss Lynette Lovell was Director of Education and Children. Mr Bradshaw said he was not involved with this matter. Mr Bradshaw said that the Respondents did not have a separate some other substantial reason policy and it was the disciplinary policy that was adapted in this case. Mr Bradshaw referred to disciplinary policy on pages 1442- 1456 of the bundle, particularly paragraph 3 under the heading of ‘Scope’ says the policy applies to all Council employees (although it does not apply to certain chief officers (viz) of paid service, Monitoring Officer, the Chief Financial Officer and the Head of Democratic Services) and teachers employed in education establishments including apprentices, trainees and those on fixed term contracts.[180]Paragraphs 7.4 and 7.5 deal with appeals. Paragraph 7.4 says that appeals against dismissal will be heard by a Director or Chief Executive. They will be supported by a HR Representative who will not have been involved in the original case. Paragraph 7.5 says, where appropriate, a subcommittee may be convened in an Employment and Appeals Committee, where it is not appropriate for the appeal to be heard by senior officers (for example, when an appeal is being lodged by a director). Where appropriate, Mr Bradshaw said he is referring to the Local Government Act as senior officers appeals can only be considered by elected officers. Appropriate is not, in general terms, governed by law. The policy is not used generally by staff and clarity is put into paragraph 7.5.[181]Mr Bradshaw said that management and the officers supporting them, he became increasingly concerned that there may have been a substantial and irretrievable breakdown in relationships between the Claimant and Respondent. Therefore, arrangements were made to consider whether there had been a substantial and irretrievable breakdown in relationship. Mr Bradshaw said that the person who had been appointed later to hear the appeal, Mr Brinn, was known to him to say hello to. Mr Bradshaw said that no one asked him to do anything improper and no one spoke to him or his deputy and he was not involved in a conspiracy against the Claimant. Mr Bradshaw said that he had three deputies who would come to him if there were aspects that they need some oversight about but he did not know about the Claimant’s case and it was the staff and employment lawyers who did not need to speak to him as head of HR. He said that thousands of letters are sent out in his name and he doesn’t read them. He did not think that the use of the term ‘bent as a nine bob note’ had an impact upon him because he was thick skinned. We accept the evidence of Mr Bradshaw about this matter and also generally in relation to his evidence about his involvement in the case. We reject the suggestion that Mr Bradshaw was engaged in a conspiracy with others in order to ensure that the Claimant was dismissed. Mr Bradshaw described how it was unfortunate that the Claimant did not avail himself of a meeting with Gemma Gabriel to discuss matters. Mr Bradshaw said that he has seen “conspiracies” documents alleged by the Claimant and most people are involved including HR persons. Mr Bradshaw said that he is impartial and he has no doubt that others can act professionally. His email to members was to assure them that matters will be dealt with properly. Elected members do not manage day to day activities and the situation was being managed properly.[182]The invitation to some other substantial reason hearing letter of 23 November 2022, said that the Respondents considered to make reasonable efforts to resolve the Claimant’s concerns about his employment. To date, the Claimant has not accepted genuine offers to discuss concerns but responded with numerous inappropriate emails. This and his refusal to engage with the Respondents efforts to support him back to work have resulted in the need for consideration of his dismissal for reason of some other substantial reason on the grounds that there has been a substantial and irretrievable breakdown between the Claimant and the Respondent. The Claimant was therefore invited to attend a hearing on 12 December 2022 which will take place remotely via Teams and will be chaired by Lynnett Lovell. Miss Lovell will be supported by Rachel Hudson, HR Manager (Schools). It was said that Rachel Evans, Head of Commission and Partnerships will be presenting evidence included with the letter. There were Appendix A-E and discipline policy and procedure included with the letter. The letter says that there has been a substantial and irretrievable breakdown in relationships, evidenced by the Claimant’s emails to the Council since 21 October 2020 and more recently 23 March 2022-20 June 2022 and his refusal to follow a reasonable instruction to return to work. The Council had made a number of attempts to meet with him to discuss any areas of concern about his return to work following the conclusion of the investigation in May 2022. Both prior to and following this the Claimant sent emails to officers and Counsellors of the Council which, it is believed, evidenced a substantial and irretrievable breakdown of relationships between himself and Powys and the Respondents.[183]The reasons given were, firstly, the language and tone in the emails is considered inappropriate and threatening, demonstrating a significant and irretrievable breakdown in relationship. There were some examples then given of emails. Secondly, email correspondence between the Claimant and Gemma Gabriel between 23 March 2022 and 13 June 2022 provides evidence that genuine attempts were made to arrange a welfare meeting with him and attempts were made to arrange a meeting to discuss the content of the investigation report to discuss how a return to work could be facilitated for the Claimant. Along with a discussion to discuss any remaining areas concerned. The Claimant refused to engage in these meetings and therefore failed to supply the Council with the opportunity to discuss the matters with him. Failure to meet with Gemma Gabriel and confrontational tone of the emails from the Claimant further evidences a breakdown in the relationship between the Claimant and the Respondents in which the Claimant appears to have lost trust in all officers, regardless of their role or involvement in this case. This breakdown of relationships and the Claimant’s actions therefore pose a real difficulty to the Council in considering how it can facilitate and support a return to work in any capacity and serves as further evidence of a breakdown.[184]Thirdly, the Claimant had copied in Councillors to email exchanges which the Council has considered unnecessary. The involvement of Councillors at this stage of policy and process is not appropriate and provides further evidence of the breakdown in relationships between the Claimant and the Respondent.[185]The letter says when considering dismissal on the grounds of some other substantial reason, the Council will be using the principles outlined in its disciplinary policy and procedure based on the ACAS code of practice and discipline and grievance procedures. One of the possible outcomes of the meeting could be the termination of the Claimant’s employment but the letter says, please be assured that a decision on this will not be made until the Claimant will have had a full opportunity to put forward everything he wishes to raise and the meeting has been concluded. The Claimant wished to obtain and submit other documents and listed documents held by HR and ask that they be provided. The Respondents offered that the Claimant went into County Hall to manually take copies and then give those copies back to the people that he had borrowed the originals from. Some other substantial reason hearing - 1 February 2023 and 6 February[186]The hearing was conducted by Mrs Lovell, who had no knowledge of the Claimant’s case before being asked to chair the hearing. All the documents were submitted including those by the Claimant. The Claimant was able to state his case and he raised a number of issues. The remit of Mrs Lovell was to decide if the relationship had irretrievably broken down. A transcript of the hearing was in the bundle at pages 105321402. The case for the Respondent was presented by Mrs Rachel Evans who was then asked questions by the Claimant. Amongst the points raised by the Claimant to Miss Evans was that he was not offered the opportunity to meet with anyone else other than Gemma Gabriel. Mrs Rachel Evans made the point that the Claimant’s failure to meet with Gemma and the confrontational tone of emails is further evidence as breakdown in relationship. Mrs Rachel Evans was asked whether the Claimant had refused to return to work but said that genuine, meaningful, constructive attempts were made to support the Claimant back to work and the Claimant did not engage with those meetings so she did not say that he had refused to return to work. The Claimant said that he had bent over backwards to give the Respondents every opportunity to protect itself from the consequences of its actions. He said that he is from Powys and he lives here and his family and friends are here and he spent his whole life here. He came to work for Powys because he cares about Powys and still has a great affection for Powys but there are certain people that are an embarrassment to the Council and that he has an issue with them.[187]It is clear from the transcript that the Claimant had full opportunity to state his case and did so. The Claimant agreed that he has a terrible relationship but disagreed that it was irredeemable. He set out what he thinks is the path to reconciliation and he thinks that Nelson Mandela in South Africa, encapsulated it best. The path from this terrible relationship to reconciliation is to start with truth. We have to have some truth about how we got to where we are and not just talking nonsense and pluck words from the air. The Claimant says, ideally, we would mutually arrive at some version of the truth and we could agree that this is what’s happened. If we can’t do that then there is going to be some external assessment of that truth and he has set out his route. After truth comes restitution. He says he has been hurt and on how to continue to be heard he has been damaged and is suffering now and if he loses his career at Powys as a result of the meeting, then he has lost even more. The Claimant says that if they can arrive at some truth then they can make some restitution, then they can get to reconciliation. The Claimant said that Gemma Gabriel’s messages are inappropriate and he considered her offers ingenuine and they don’t meet his complaint or the requirements they are going to have to go through to reach reconciliation. The Claimant says, you suggest it is impossible for us to reconcile because Clive Pinney has written down minutes of a meeting in which he has made inappropriate recommendations to Dylan, either because he wasn’t aware of the evidence, which is the least bad option, or he was aware of the lack of evidence and still made inappropriate advice. Now that reconciliation is first to acknowledge the truth and then we are going to decide what we do about that.[188]It is clear to Mrs Lovell from the information that the Claimant himself provided and from his conduct at the meeting, that he felt negative towards the Council. At the outset he did say that he was entering the process with hope and little faith which Mrs Lovell appreciated and understood. The Claimant was clear that he wanted agreed truth and then restitution and then reconciliation. The shared perception of truth was the key factor. He had lost faith in senior officers and HR and the Chief Executive. He considered that Mrs Lovell was hostile to him. Mrs Lovell had been Director for just over a year and been a Headteacher and in Education in Powys before that date. She did not know Dylan Owen well or Martin Heuter, didn’t know those because she was in Education. She knew Caroline Turner and Clive Pinney professionally but personally because they were part of the Executive Team.[189]Mrs Lovell said she looked at all the evidence and did not talk to other officers. The Claimant brought historic matters which she did not look into and did not accept the concerns were unanswered. Mrs Lovell had the same pack as the Claimant had, she had it a few days before the hearing. The Claimant explained that things were outstanding, he said that there was a lot more the Claimant could bring. Mrs Lovell felt the internal procedures and all things had been exhausted. There was a lot of detail provided by the Claimant and it was clear from the tone that there was a complete relationship breakdown.[190]Mrs Lovell emphasised that her role was to look at the relationship, whether it had substantially and irretrievably broken down. Mrs Lovell considered the various emails that were in the pack and that they had been genuine efforts by Miss Gemma Gabriel to discuss matters with the[191]Mrs Lovell said that there had been references to the independent report of the hearing but no particular reference on protected disclosures but rather a lot about absences. HR said that they had been dealt with. Mrs Lovell said that what she looked at showed that the relationship had irretrievably broken down and she could not see a way forward. The Claimant did not trust the local Authority and Mrs Lovell did consider why, the lack of trust of officers as a whole. It was because the Claimant believed there was a conspiracy.[192]Mrs Lovell considered the disciplinary policy and appendix 1453- 1455 with there not being illustrative in respect of gross misconduct. But there was no finding of gross misconduct or misconduct by Mrs Lovell because she was concerned with the issue of whether the relationship had substantially and irretrievably broken down.[193]The Claimant did not suggest how the shared truth could be achieved and examples were given which showed no shared understanding of truth. An investigation had been done, there was a mistrust of all the officers and Mrs Lovell considered there was no way back from the Claimant and, in terms of the Claimant his behaviour is unacceptable and with the mistrust it was all about him.[194]By letter of 17 February 2023, Mrs Lovell set out the decision. Mrs Lovell made a number of findings. First of all, Mrs Lovell found that while some latitude can be made for the fact that the Claimant was unwell, the fact remains that the Claimant’s communications had not been appropriate or in line with the Council’s values. Mrs Lovell set out a number of examples of that that had been presented in the evidence pack. Secondly, Mrs Lovell said that whilst she believed that Gemma Gabriel’s offer to meet with the Claimant was genuinely well intentioned and intended in a supportive way, as the independent investigation had already been commissioned she understood why the Claimant felt this time that Gemma Gabriel would not be an appropriate person to meet him. However, the evidence showed that the Claimant was unwilling to participate in welfare meetings that had been undertaken by other officers previously. Thirdly, during the hearing the Claimant stated that he felt it was appropriate to copy emails of complaint to the Councillors on the grounds that they had reasonable genuine interests in the contents of his complaint. The Claimant also stated that he was complaining to the line managers of the officers that you are complaining about. The email exchanges demonstrate the Claimant had lost faith in many senior members of the Council, feeling it necessary to copy in cabinet members and share with committees. Mrs Lovell did not accept that it was necessary or reasonable to copy communications to these members.[195]Mrs Lovell said that based on the documents that had been provided to her and the Claimant’s comments during the hearing, it seemed to her to be impossible that there would be an agreement on what the Claimant described as “the truth” relating to historical events. Mrs Lovell says that during the hearing the Claimant’s language was understandably accusative towards many officers in the Council against whom the Claimant felt he had complaints, but he also made it clear that he felt Mrs Lovell was hostile to him and that Rachel Hudson, as part of the HR Team was prejudiced against him. Mrs Lovell said the Claimant named many officers at senior level of the Council up to and including the Chief Executive he had lost faith in.[196]Mrs Lovell referred to the fact that the Claimant used a number of terms including, “malicious, prejudicial intent”, “organised administrative impropriety”, “institutional hierarchical prejudice”, he described the conduct of the Council and its officers which indicates to her that were the Council to attempt to work with him to agree a version of the truth as the Claimant requests, this would not be possible as the Claimant does not trust the Council or its officers to deal with him fairly. The Claimant was aware that many of the senior officers to whom he referred, had left the Council but this did not seem to make any difference to his perspective.[197]Mrs Lovell found that the Claimant’s inability to acknowledge the need to draw a line under past events in order to move on and mend the relationship confirms the relationship has substantially and irretrievably broken down. The Claimant has stated that he demands that the Council concede to a number of his conditions, in particular, requests regarding agreeing “the truth”. This is not consistent with any possibility of any reconciliation between the Claimant and the Council. Therefore, Mrs Lovell found the relationship between the Claimant and the Respondents had substantially and irreconcilably broken down and that his employment with the Respondent should be terminated on the grounds of some other substantial reason with effect from Friday 12 May 2023. Mrs Lovell referred to the fact that the Claimant had a right to appeal against the decision.[198]We accept the evidence of Mrs Lovell. She had no prior knowledge of the Claimant’s case and that she considered carefully a number of the sources of evidence in coming to a decision which included the evidence presented by the Claimant himself. We find that Mrs Lovell was open minded and not prejudiced in the way she approached the case. Mrs Lovell was focused on her remit to decide if the relationship had irretrievably broken down and was balanced in the way that she arrived at her findings. We accept Mrs Lovell’s assertion that she was able to make an informed and fair decision based on the evidence. Mrs Lovell felt that all things had been exhausted but it was clear there had been a complete breakdown in the relationship between the Claimant and the Respondents. Mrs Lovell did not contact anyone before coming to her decision and it was her decision alone. We found Mrs Lovell to be a convincing and accurate witness regarding perceptions and reason for the decision that she came to. Her conclusions are supported by the interactions of the Claimant at the hearing and what he said regarding officers of the Respondents and generally in relation to how he perceived the Respondents have acted. Mrs Lovell’s conclusions reflect what evidence was put before her. Appeal against dismissal[199]On 24 February 2023 the Claimant emailed Mr Paul Bradshaw advising him of the Claimant’s intention to appeal the findings of the recent hearing chaired by Mrs Lynette Lovell. The Claimant says the grounds for appeal will be that the findings and inferences relied upon to reach this conclusion are flawed. The Claimant sets out a non-exhaustive list of arguments that are to be presented at the appeal including the fact that varying assumptions had been made about him which are not true. The Claimant sets out the conspiracy referred to is the meeting of 9 October 2018 in which Clive Pinney, Rebecca Williams and Dylan Owen planned to coerce him out of his employment by threatening him with criminal prosecution if he refused a severance agreement. That meets the definition of a conspiracy as provided by the Crown Prosecution Service. Among the points made by the Claimant is that the quoted statements using the outcome letter, only the statement about “… as bent as a nine bob note” could be construed as in any way unprofessional. As a term to describe manifest underhand dishonesty and flagrant lying, it is relatively mild. The Claimant says that the problem is the Council’s inability and/or reluctance to take seriously, allegations against senior officers of the Council. The Claimant says that he has not been identified, protected or processed as a whistleblower and has never been invited to make a protected disclosure. The Claimant says that he copied in specific committee chairs and elected members to his complaint as they all had genuine interest in allegations about Directors. The Claimant says he continued doing so when it became clear that his complaint was not being handled as a complaint by those acting in lieu of line management. The Claimant says it is entirely illogical to conclude that the deterioration of relationship is irreconcilable because of him. He remains open to any serious and honest attempt to resolve it.[200]Mr Paul Bradshaw replied to the Claimant’s email by noting that the Claimant intends to appeal rather than advising the appeal itself in the timescale, Mr Bradshaw says can we take this as being the form of an appeal. The Claimant responds on 24 February 2023 to say, given the timings this will have to be his appeal. The Claimant adds to his previous list of grounds that Mrs Lovell appears to suggest that unless he is willing to draw a line over past events which have yet to be investigated, let alone rule upon, upon which he has complained and received no response, the Council is unwilling to explore the truth. It could be put, in other words, as withdraw your complaint about senior people otherwise we will get you. What demands has the Claimant says he made about the truth other than it being investigated. The Council has made no counter proposal beyond discussing Gemma Gabriel’s correspondence with Gemma Gabriel.[201]On 23 March 2023 the Claimant was informed that the appeal will be on 20 April via Microsoft Teams. The Chair of the appeal hearing will be Nigel Brinn, Executive Director Economy and Environment. He will be advising in relation to policy and process by Sarah Christoforou. Mrs Lynette Lovell and Rachel Hudson will also be in attendance.[202]On 30 March 2023 the Claimant, by referring to the disciplinary policy and procedure, asks what guidance or president exists for a clause regarding clause 7.5 to be invoked. The Claimant says his case seems exactly the situation in which members are required to avoid any allegation of coercion or conflict of interest before imposing the ultimate sanction of termination of his employment. The Claimant makes a formal request under clause 7.5, that his appeal be heard by a sub-committee from the Employment and Appeals committee. The Claimant says that the panel are not including the members of his grievance appeal hearing. Ground for the Claimant’s request are now that Senior Executive Officers, whose actions he attests are improper corrupt and in one case criminal and are otherwise able to apply undue pressure and control over the investigation hearing and conclusions of any such process is a clear conflict of interest. On 4 April 2023 the Claimant sent an email to Councillor Baynham saying that he has been identified as Chair of the Employment and Appeals Committee from the public website and refers to clause 7.5 of the disciplinary policy. Councillor Baynham replied to say that staffing is no longer his remit, it is Councillor Jake Berriman. The Claimant then emailed Councillor Baynham before he had received Councillor Baynham’s reply to say that Paul Bradshaw is deliberately trying to interpret the Council’s policy. The Claimant says the fundamental issues in this case concern not only the behaviours of senior officers and the County Solicitor themselves on the record but also Paul Bradshaw himself and the Senior Executive of the HR Department, all of whom have been accused on record and in writing, backed up with the voluminous evidence of unlawful administration of the case at issue being it best a sustained organised administrative impropriety or a criminal conspiracy at worse. The Claimant says that Paul Bradshaw continues to play a role in the action against him as a brazen corruption. This email was sent because Mr Bradshaw had earlier said to the Claimant that paragraph 7.5 does not relate to his particular circumstances which are in accordance with paragraph 7.4 under which a Director would consider the appeal.[203]Councillor Lucy Roberts, who was now Chair of the Employment and Appeals Committee, emailed the Claimant on 5 April to confirm that the Counsel’s Head of Workforce and Organisational Development and his Team have arranged for the Claimant’s appeal to be heard in accordance with the Council’s procedure. The Claimant replied saying, “could you alleviate my impression that this is simply further evidence of the institutional hierarchical prejudice which blights our Council and that you have in fact carried out due diligence before responding with such flippancy?”.[204]The Chair of the Appeal Hearing, Mr Nigel Brinn was approached by HR and asked to assist in relation to the appeal. Mr Brinn said he couldn’t remember who, but it was possibly Sarah Chistoforou who supported him during the procedure and process and was independent of the HR Team and did not report to Rachel.[205]The transcript of the appeal hearing is on pages 1480-1557 of the bundle. The Claimant asked to bring a solicitor with him but that was refused. The Claimant said he was quite capable of going ahead but it would be nice if he could have some support as the Respondents all got teams of people behind them. Mr Brinn had not previously met the Claimant and had no involvement in the matter until he received the documentation for the appeal. He confirmed that Sarah Chistoforou had also not been involved in the case previously. Mr Brinn explained the purpose of the appeal was not a rehearing. Mr Brinn confirmed that he had seen the documentation and transcript of the earlier hearing and also documents such as the Claimant’s email of 24 February 2023 of his intent to appeal.[206]The Claimant put forward his submissions first. The Claimant said, that broadly speaking he thought they were still in dispute about whether his language and tone was inappropriate and threatening. They agreed it was not threatening. He disagreed that even if the language is slightly inappropriate, which he didn’t think it was, but for arguments sake and accept that it was inappropriate, he still does not think that that means the relationship is irreconcilable. He might face some sort of disciplinary and maybe he would have some mediation and perhaps there will be a black mark and maybe wouldn’t be a sackable offence. Secondly, the Claimant said that he did not think he refused to engage with Gemma Gabriel. And, if he did unreasonably refuse to speak to Gemma Gabriel, is that the end. Does it make it impossible for the Council to liaise with him in any way whatsoever. The Claimant said it was perfectly reasonable for him to refuse to speak with Gemma specifically because she had lied to him numerous times and talks nonsense. The Claimant said he was off work with stress and cannot be dealing with people who just talk gibberish and make stuff up. He is stressed and anxious and hasn’t got the patience for it and needs to speak to an adult please. The third allegation about inappropriately and unnecessarily copying Councillors into email exchanges is that that is disputed. His complaints are not being responded to. His complaints about Clive Pinney, Dylan Owen, Rebecca Williams, Paul Bradshaw and Gemma Gabriel. He has had no response from officers. If you are unhappy you go to someone’s boss, that is perfectly normal and reasonable. It is necessary because he had no other avenue to go to. In relation to Mrs Lovell’s findings, the Claimant referred to the penultimate paragraph where there were longstanding issues in the relationship and he feels “that a number of concerns are not being resolved and so says again, perhaps this is my borderline Aspergers, it is nothing about feeling, its hard fact. I put concerns in there, there is evidence, I have lodged a concern, I have put allegations in and then there is nothing back.” So it’s not, he feels, if he responded to his allegation that Clive and Dylan and Rebecca Williams were part of a criminal conspiracy. He says stuff just goes into a void and he gets nothing back.[207]The Claimant said that he was telling Lynette and took 9 hours last time and could probably cover 10% of all the stuff about Dylan Owen and HR and all the appalling treatment and crap decisions in commissioning adult social care or wasting money. Mrs Lynette Lovell told Mr Brinn the questions she had to consider was whether the working relationship between the Claimant and the Council had substantially and irretrievably broken down. She was not asked to assess historical events although, as the Claimant had already said to Mr Brinn, they did have a 9 hour hearing around listening to some of the historic events which do obviously come into the decision but she was not asked to assess any of those. It was not her role to consider apportioning blame but to consider the status of the relationship between the Claimant and the local Authority as his employer. Mrs Lovell said that she did not think or feel that there was any possibility that the Claimant and the Council would be able to agree on a shared perception of the truth. The Claimant said to Mrs Lovell that he would like there to be an investigation and if the investigation says he is mistaken or wrong, he is ready to accept that. In the absence of any investigation it is difficult to move forwards and thinks the way to move forward is to have an investigation. Mrs Lovell said that she thought that the Council had tried to resolve the Claimant’s complaints and she stood by her decision.[208]The Claimant said that the HR and Legal Departments are compromised because Paul Bradshaw and Clive Pinney have conducted themselves in a poor way on a number of occasions. That doesn’t mean that the people who are under them are bad people but for them to criticise their bosses is like putting their head above the parapet and is a big leap and so he does not trust any process initiated in the Respondent’s HR Legal Department but that doesn’t mean that he won’t engage with it and won’t give it the opportunity to approve his competence and his propriety. Mr Brinn understood the Claimant may have fallen out with one or a couple of people but not everyone. He had worked with some who were exemplary. He had a professional relationship and not a personal one with a number of people. Mr Brinn emphasised that he knew in a professional sense the people that the Claimant had accused. Apart from the matters in the bundle there was also verbal comments made at the hearing such as the Claimant saying that he had spoken about institutional hierarchical prejudice and thinks certainly from Dylan Owen it is a malicious, prejudicial attempt and a failure of anybody who investigates let alone return or respond to that. The Claimant said it has been an ongoing intentional impropriety which is organised, which was his perception, because he could not go through all the hearings and false allegations and arbitrary nonsense and extrapolations of evidence, I don’t think it’s possible to be that incompetent. It’s organised. It is part of the plan.[209]We accept the evidence of Mr Brinn and his lack of involvement with the Claimant in this case before the appeal. We accept he only knew the people mentioned by the Claimant professionally and not personally. He gave the Claimant a full opportunity to state why the decision of Mrs Lovell was wrong.[210]The appeal hearing took three hours. It covered all the points that the Claimant wanted to make. Mrs Lovell had an opportunity to consider and explain her decision.[211]Mr Brinn considered that there were no grounds that he could identify that would lead him to challenge the previous findings. He concluded that the decision taken following the original disciplinary hearing should remain unchanged and there were more than reasonable grounds to conclude that there had been a substantial and irreconcilable breakdown of the relationship between the employee and the employer, including verbal comments made at the hearing and in email extracts identified this breakdown.[212]Mr Brinn wrote to the Claimant on 9 May 2023 with the outcome of the dismissal appeal hearing. In the letter Mr Brinn referred to the ACAS guidance as good practice to follow in such matters, noting that the Respondent’s policy was in any event very closely aligned to this. Mr Brinn concluded the decision taken following the original disciplinary hearing should remain unchanged and the appeal dismissed. Mr Brinn confirmed that the matter he was asked to consider related to the hearing of 1-6 January 2023 and the subsequent appeal. He has not been asked to consider the previous matters raised although, through the Claimant’s verbal evidence, he was aware there had been a number of previous processes undertaken. Mr Brinn says it was clear that there was a breakdown with key corporate service areas of the authority such as HR Legal Teams who play an integral role in any employment relationship. Mr Brinn said that he could accept that there could be a breakdown in relationship with an officer or a number of officers but the list in the case is the most extensive he had seen and appeared to be all officers who have been involved in the case, however independent they may be. This led Mr Brinn to concur with the hearings findings that the relationship between himself and the Respondents had substantially and irreconcilably broken down. Mr Brin confirmed there was no further rights of appeal.
The Law
[213]Section 98 of the Employment Rights Act 1996 says: “1. In determining for the purposes of this part, where the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or if more than one, the principal reason) for the dismissal, and(b) That it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Section 98(4) says : Where the employer has fulfilled the requirements of sub-section (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) – (a) Depends on whether, in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and, (b) Shall be determined in accordance with equity and the substantial merits of the case”.[214]Section103A headed protected disclosure says: “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one the principal reason) for the dismissal is that the employee made a protected disclosure” Section 43A says – “In this act a “protected disclosure” means a qualifying disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.[215]Section 43B says, under the heading Disclosures qualifying for protection “ (1) In this part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following: (a) That a criminal offence has been committed, is being committed or is likely to be committed. (b) That a person has failed, is failing or is likely to fail to comply within the legal obligations to which he is subject. (c) That a miscarriage of justice has occurred, is occurring or is likely to occur. (d) That the health or safety of an individual has been, is being or is likely to be endangered. (e) That the environment has been, is being or is likely to be damaged or (f) That information tending to show any matter falling within any of the preceding paragraphs has been or is likely to be deliberately concealed.”[216]Under section 47B(1) “a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by the employer done on the grounds the worker has made a protected disclosure.[217]By (1A) a worker has the right not to be subjected to any detriments by any act or any deliberate failure to act done –(a) by another worker of the workers employer in the course of that other worker’s employment or(b) by an agent of the worker’s employer with the employers authority on the ground that the worker has made a protected disclosure.[218]By (1B) where the worker is subjected to a detriment by anything done that is mentioned in subsection (1A) that thing is treated as also being done by the worker’s employer.[219]By (1C) for the purposes of subsection (1B) it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer.[220]The Equality Act 2010 Section 4 lists characteristics which are protected characteristics. These include disability.[221]By Section 13 of the Equality Act 2010 that a direct discrimination, “(1) a person(a) (A) discriminates against another(b) (B) if because of a protected characteristic (A) treats (B) less favourably than (A) treats or would treat others”.[222]By Section 15 headed discrimination arising from disability (1) a person (A) discriminates against a disabled person (B) if – (a) (A) treats (B) unfavourably because of something arising in consequence of (B)’s disability and (b) (A) cannot show that the treatment is a proportionate means of reaching a legitimate aim.[223]By Section 20 of the Equality Act 2010 headed duty to make adjustments(1) where this act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable schedule apply and for these purposes a person on whom the duty is imposed is referred to as (A). By(2) the duty comprises the following 3 requirements – 3) The first requirement is the requirement, where a provision criteria or practice of (A)’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 4) The second requirement is the requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 5) The third requirement is the requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.[224]By Section 21 of the Equality Act 2010(1) a failure to comply with the first second and third requirement is a failure to comply with a duty to make reasonable adjustments.(2) (A) discriminates against a disabled person if (A) fails to comply with that duty in relation to that person.[225]By Section 23 of the Equality Act 2010 and in comparison, by reference to circumstances(1) on a comparison basis for the purposes of Sections 13, 14, 19 or 19A there must be no material difference which in the circumstances relating to each case.(2) the circumstances relating to a case include a person’s abilities if (a) a comparison for the purposes of Section 13 a protected characteristic is disability.[226]By Section 26 of the Equality Act 2010 headed harassment (1) a person (A) harasses another (B) if – (a) (A) engages in unwanted conduct related to a relevant protected characteristic and (b) The conduct has the purpose or effect of – (i) violating (B)’s dignity or (ii) creating an intimidating hostile degrading humiliating or offensive environment for (B). 4) in deciding whether conduct has the effect referred to in subsection (1)(b) each of the following must be taken into account (a) the perception of (B) (b) the other circumstances of the case (c) whether it is reasonable for the conduct to have had that effect. 5) the relevant protected characteristics are - ….. disability.[227]By Section 136 of the Equality Act 2010(1) this Section applies to any proceedings related to a contravention of this Act(2) there are facts from which the Court could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred.(3) but subsection (2) does not apply if (A) shows that (A) did contravene the provision.(4) the reference to a contravention of this act includes a reference to a breach of an equality clause or rule.[228]A number of reported cases were cited to the Tribunal by both parties in their written and oral submissions. A bundle of Authorities was also handed to the Tribunal on behalf of the Respondent. It is not the intention to set out here all of these Authorities and the parts of them relied upon by the parties. The Tribunal has had regard to the Authorities coming to their conclusion. Submissions[229]Both the Claimant and Respondent made oral and written submissions.[230]Dealing with the dismissal of the Claimant, the Respondent submitted that the question is what was the sole or principal reason for the dismissal of the Claimant. It was asserted that the Claimant was dismissed because of a breakdown in the working relationship between him and senior figures within the Respondents organisation including the Claimant’s managers and HR. This was “some other substantial reason” for the purposes of Section 98(1)(b) Employment Rights Act 1996. The Respondents rely upon the evidence of Mrs Lovell and Mr Brinn, to which it was said that in fact there was no challenge to their evidence in substance. The language and tone that the Claimant used in various emails together with the refusal to engage with HR and the copying of emails to County Councillors demonstrated a lack of trust that the Claimant had in officers especially senior officers within the Respondents. Finding there had been a substantial breakdown in the relationship between the parties was entirely reasonable. Despite the Claimant’s argument it had not been reasonable to conclude the breakdown was irreparable in the absence of any investigation into his complaints about the way he had been treated, the allegations do not reflect the Respondents reasons believing the relationship was irretrievably broken. Given the vitriolic nature of the Claimant’s communications the situation would have been intolerable as the Claimant wanted restitution for the damage he had suffered so that they could get to reconciliation. Given the evidence of Mrs Lovell and Mr Brinn and the reasons why they had formed the view that there had been an irretrievable breakdown in the relationship, the decision to dismiss was fair in all the circumstances of the case.[231]The Respondents submitted that in considering the reason for dismissal Section 103A of the Employment Rights Act 1996 required the Tribunal to identify the sole or principal reason for the dismissal which ordinarily involves considering the set of facts known to (or beliefs held by) the decision maker which caused them to take the decision to dismiss. Reference was made to the case of Orr -v- Milton Keynes Council [2011] ICR 704. It was submitted that there was no basis of any causal link between the protected disclosures and the decisions made by Ms Lynette Lovell or Mr Nigel Brinn. It was submitted that it was not open to the Tribunal to find that Lynette Lovell’s reasons for dismissing the Claimant and/or Nigel Brinn’s decision to reject the Claimant’s appeal was because of any public interest disclosure that he might have made.[232]The Respondents submitted in the most significant claims regarding flexible working, an analysis of the reasons for absences, both disability and non-disability related, and an analysis shows that the issue regarding flexible working did not drive up absences from 2017. The number of disability related absences are broadly consistent across the three periods from 2007 to 2011, 2012 to 2015, and 2016 to 2018. In 2017 Mr Anderson’s outcome letter of discussions regarding absences consistent with occupational health and inconsistent with what the Claimant’s case is. There had been a history of informal treatment of non-disability related absences and he was treated too generously in respect of the application of the sickness absence policy. The Respondents submitted that there was no contemporaneous documents that referred to alleged restriction on the Claimant’s ability to work from home. The evidence does not support the Claimant’s allegation that his manager acted improperly in placing restrictions on his ability to work flexibly the Claimant was told he could not take short term annual leave to cover sickness absence but he [????] believed that this restricted his ability to take annual leave to prevent sickness absence.[233]The Respondents submitted there was a second issue regarding allegation of a conspiracy into a fraud/gross misconduct investigation. There is no dispute on key facts which is that the Claimant did not keep an accurate record on the Trent computer system being the employees responsibility to enter dates. Why were 11.5 days not reflected? Were they errors or deliberate? Whatever the opinion of Mr Dylan Owen there needed to be an investigation and HR spoke to the Fraud Team to follow a process. Although the Claimant says it was a conspiracy in fact the evidence is that of people doing their jobs. The possibility of fraud was not linked with sickness absence and it is wrong to have conflicted these two matters. The matters which led to gross misconduct possibilities included failure to notify as well as attendance records and alleged interaction with a colleague. The reality was that the Claimant was a frequent non-attender who had a huge responsibility for domiciliary care and Dylan Owen felt this situation could not continue to be tolerated. Matters were dealt with formally and the process worked out as it should have been with no evidence to back up the suggestion of a conspiracy.[234]Freedom of Information matters that the Claimant requested broken down as two parts namely – the number of Respondent employees with 9 or more sickness absences in the years 2015, 2016, 2017 who were subject to formal action (written warning or other disciplinary action); and the number of Respondent employees with 34 days or more sickness absence in the years 2015, 2016 and 2017 who were subject to formal action. The response to the request shows there were relatively few employees with 9 or more sickness absences in any given calendar year although the number of employees with more than 34 days absence was much higher. The Respondents submit that when these figures are viewed together it suggests the Respondents had to deal with fewer but longer periods of sickness absence among its workforce. What the statistics do not reveal is how many of the employees had a sickness record that was comparable to the Claimant’s. This is important because the sickness absence managing policy applies a different approach to short term absences compared to long term absences. It is impossible to say by reference to the Freedom of Information data whether the circumstances of any other employee from 2015 to 2017 are materially the same as the Claimant’s. The inference the Claimant relies upon to support his case has no proper foundation. Furthermore, the fact that Julia Coggins appeared to think there might be “some validity” to the Claimant’s concerns can be met with a simple response that Julia Coggins was wrong to think that the Claimant’s analysis and the Freedom of Information data might have merit.[235]The Respondents drew attention to the interchange between the Claimant and his then Line Manager, Martin Heuter in 2020 where the Claimant alleges that there was backtracking on assurances given regarding work and Martin Heuter said that he could not commit to a firm proposal regarding what a return to work would look like which were not related to disability but the fact that the Claimant’s return to work was not imminent and it was impossible to predict what future restrictions would be in place to manage the COVID pandemic. Mr Heuter was not saying that no adjustments would be made on the contrary he reiterated the Authority was committed to making reasonable adjustments which may assist in his role. It is not open to the Tribunal to find that there was harassment of the Claimant for reasons related to his disability.[236]In respect of the matters in 2022 arising from the Coggins Report and the actions of Ms Gabriel and Mr Bradshaw Ms Gabriel said that although the Claimant had ongoing concerns about the way he had been treated and warranted an investigation into these concerns, this presumed that the concerns had not been investigated previously or alternatively the Claimant erroneously believed they could be revisited when he is not happy with the outcomes. The Coggins Report identified various recommendations and none of them suggested the Claimant had raised complaints that remain unanswered. It is regrettable that the Claimant did not accept Ms Gabriel’s invitation to specify any issues that remained outstanding particularly in relation to any protected disclosures.[237]The Respondents position is that in relation to a consideration of the case of Ezsias -v- North Glamorgan NHS Trust [2011] IRLR 550, Perkin -v- St George’s Healthcare NHS Trust [2005] IRLR 934 and Sainsburys -v- Hitt shows it is not necessary for an investigation about where blame lies but there has to be a resolution and here an investigation into conspiracy would not be effective there was never going to be a resolution of the relationship between the parties, there had to be a parting of the ways if the Claimant does not go who else goes. It was a reasonable decision.[238]Regarding limitation, different managers dealing with the situation and HR representatives and there was no continuing act for the purposes of limitation. A number of the claims are well out of time.[239]It was submitted that none of the claims based on disability discrimination or protected disclosures should be upheld and all should be dismissed.[240]The Claimant submitted that the case was actually quite straightforward. The Claimant made a protected disclosure to his employers, subjected to detrimental treatment on the ground of having made a protected disclosure and the principal reason for his dismissal was the disclosures and therefore his dismissal was automatically unfair. In addition his dismissal was in breach of the ordinary principles of fairness. Furthermore, he was discriminated against on account of his physical disability which amounted to direct discrimination harassment discrimination arising from disability and a failure to make reasonable adjustments.[241]In relation to the Respondents case regarding the reason for dismissal there was a failure to ascertain why. The way that the Claimant was treated from the grievance and termination or disciplinary action is consistent with the limited scope of individuals engaged to look at it. There was no resolution or investigation of matters. There was a reluctance from the Respondents to accept its failures. The decisions to terminate made by Mrs Lovell and Mr Brinn were a foregone conclusion. There was no fairness in relation to the way the Claimant was treated.[242]The indifference shown to the Claimant’s contentions, failure to fully investigate key concerns lines of enquiry, the decision to disregard alternative avenues for resolution link directly to the motivation on the part of the Respondent to either force the Claimant to resign from his employment, subject the Claimant to a criminal fraud investigation or seek as did transpire to remove him on the basis of “irretrievable breakdown of the relationship”. This is a paradigm example of a whistleblowing case. The cause or nexus between the whistleblowing and the detriment and ultimately the dismissal is very clear. Rather than engage with the Claimant about his whistleblowing he was largely ostracised. His absence was micro-managed. Thereby correspondence was poured over for any sign of misconduct. His attempts to mitigate matters to speak to someone about his concerns were disregarded and/or ignored.[243]In relation to ordering unfairness there are a great many grounds on which the Claimants dismissal was unfair. It is accepted by the Claimant that he not always used professional language but there was no swearing or threats. Mrs Lovell should have considered the extenuating circumstances and items remained outstanding. There was no need for councillors to be involved if the Respondent had done what it should have done. Frustration levels should be taken into account. The proper process was not carried out by the Respondents. There was no new evidence that he was impossible to work with. The case of Ezsias where the facts are different nevertheless indicate that there was a pretext to conceal real reason as in this case. The reasons given for dismissal do not warrant termination of employment. The public interest disclosures were not dealt with and complaints made by the Claimant were not pursued. It is now conceded that two protected disclosures were made.[244]All the acts which were complained of were part of a continuing act for limitation periods reasons.[245]The Claimant relies on the difference in treatment of himself and those with greater sickness absence levels as identified in the Freedom of Information Request. The statistics in the Freedom of Information Request clearly show the Respondents policy was applied inconsistently inequitably and unfairly as it relates to the Claimant as opposed to hundreds of other employees of the Respondent. There can only be one conclusion why the Claimant was targeted for removal.[246]The Claimant asserts that his flexible working had been restricted by the Respondent in 2017 which increased his sickness absence levels not taking into account his disability and various occupational health reports. He was subjected to inflated absences by the Respondents attempt to find the Claimant guilty of gross misconduct threatening to dismiss him in March 2019. Management granted short term annual leave to other employees while refusing his request for the same placing him at a disadvantage which contributed to driving up his sickness levels. The Claimant asserts he was subjected to a criminal fraud allegation and interview and a caution regarding anomalies on annual leave authorisation only after bringing anomalies regarding sick leave to his managements attention. His absences from work and by extension the dismissal were a direct result of his disability.[247]The Claimant contends that a continued pursuit of unfounded disciplinary procedures against him for a period of 5 years amounted to harassment having regard to his disability. The repeated maladministration of disciplinary process amounts to a sustained organised administrative impropriety. The Claimant was subjected to a hostile working environment by the Respondent which is tantamount to harassment.[248]The Claimant sought the following reasonable adjustments namely allowing the Claimant to take annual leave at short notice; adjusting trigger points for disability related absence; allow home working; and stick to the facts and not use the way the Claimant articulated himself as a way to dismiss him. There was no consideration for reasonable adjustments from 2017 until after the production of the Julia Coggins Report in May 2022.[249]The Claimant says there was a conspiracy against him based on his treatment from 2017 to 2022. The Respondent did not accept its shortcomings in relation to what it should have done regarding anomalies with the Trent system. It is surprising there was a decision to go to the fraud route if the Respondents did not think the Claimant was dishonest or fraudulent. The Respondents had many opportunities to discuss matters with the Claimant before proceeding upon the routes of the disciplinary process. They failed to have discussions with the Claimant. The Respondents were not interested in the truth and every time there was investigation its scope was limited. There was a similar theme with protagonists failing to widen the scope by investigation. The Claimant did not say that he would not meet. There is reason for the Claimant to have suspicion of HR. The Respondents have the blame for not taking the Claimant’s concern seriously. When a disclosure was made to Mr Pinney he failed to consider it. The employers failings obviously had an impact on the sickness level of the Claimant. Blame cannot be left at the feet of the Claimant. The Respondents were well aware of disclosure complaints made and it was a stark contrast in his treatment in 2017.
Conclusions
[250]The List of Issues sets out a number of alleged qualifying protected disclosures. We will deal with our conclusion in respect of each of these alleged qualifying protected disclosures as follows. Firstly (para 2.1.1.1) it is said that in 2014 (or 2015) sending internal emails challenging the way in which the council apportion blame for errors made concerning the provision of domiciliary care, covered up its own responsibility and shortcomings in implementation of the plans. The first issue is what were these internal emails because they have not been recovered and which particular individuals were sent these emails. The Claimant says he clearly recalls sending internal emails challenging the way in which the council apportioned blame for the clear errors in the provision of domiciliary care following the collapse of the framework. It is impossible to determine what was the information alleged other than opinion evidence on the part of the Claimant. We are not satisfied that what the Claimant says about these internal emails constitute qualifying protected disclosures. We note that the Claimant does not identify which of the grounds such as breach of legal obligation is relied upon in any event. There is insufficient details to conclude that they were qualifying protected disclosures.[251]The second alleged qualifying protected disclosure (para 2.1.1.2) is that on 13 February 2019 the Claimant emailed Dylan Owen about failures to comply with the Social Services and Wellbeing Act Wales including failures to provide care or support when required and financial abuses. The Claimant says that he is unclear in relation to matters and it is in the nature of an enquiry seeking guidance. It is opinion evidence and not information giving we do not consider this to be a qualifying protected disclosure.[252]The third alleged protected disclosure (para 2.1.1.3) is that in or around September 2019 an email to Ali Bullman about the same issues raised with Dylan Owen. There is nothing unlawful in the email and there was no repetition of unlawfulness as far as the Tribunal can ascertain. The Respondents say the relevant email has not been produced. We do not find that this was a qualifying protected disclosure in these circumstances.[253]The fourth alleged qualifying protected disclosure is (2.1.1.4) in November 2020, in an email raising the same matters again with Ali Bullman. The Respondent accepts that the email sent in November 2020 contained a qualifying disclosure since some of the issues addressed went to the same topic raised within the Claimant’s email dated 22 June 2022 which Mr Clive Pinney accepted in evidence was likely to amount to a qualifying disclosure. The alleged qualifying protected disclosure number 5 (para 2.1.1.5) on 7 October 2019 in an email to Ali Bullman about a misleading report sent to elected members to seek authority to pursue a course of action which was in breach of the requirements of commissioning procurement in the Social Services and Wellbeing Act Wales and a misrepresentation of that to elected members. The misleading draft report was about misleading politicians as to the success of the DPS as being rolled out. Bullying and intimidation was an allegation based on suggestions round Mr Heuter, Line Manager, the Claimant could research alternatives to etenderwales and that these alternatives should be funded through the brokerage budget. There is also the Claimant saying that there is incompetence in procurement or commissioning. The email does not refer to the Social Services and Wellbeing Act Wales. While breach of that legislation or that health and safety of any individual was being or would be endangered. Nor is there anything about the purported breach of legal obligation or any other matter that would come within categories found to be a qualifying protected disclosure. We did not find that this was a qualifying protected disclosure.[254]The sixth alleged qualifying protected disclosure (para 2.1.1.6) the first part about allegations of failure to follow policy and maintain lawful and propriety in administration of grievances and disciplinary processes affecting the Claimant is related to him personally and does not show breach of any other categories of failure nor is the public interest test satisfied. In relation to the second part of allegations of failure to follow legislation and guidance when commissioning services the Pembrokeshire case referred to is not directly relevant. It is not a criticism of the Claimant but he is not a lawyer and gave a personal opinion where others may have a different point of view. This is a complex matter in which it is too remote to the facts of the case. The Claimant in effect was trying to put responsibility on Mr Dylan Owen. We accept the submissions of the Respondent that the statutory test requires the disclosure of information to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject and an assertion that the Respondents are vulnerable to challenge or fall short of the requirements. In respect of the allegation of misleading elected members we find that the wording does not lead to showing that any of the categories for disclosure of information has been met. We do not find that this is a qualifying protected disclosure.[255]The seventh alleged protected disclosure (para 2.1.1.7) is an email of 15 June 2022 to the Chief Executive and Chair of Committees and a Leader about maladministration in the investigation into the Claimant’s complaint. The Claimant says he was disclosing information that the Respondent was in breach of a legal obligation about how the council should deal with his complaint and should not obfuscate and corrupt their own investigation. The Respondents accept that this document contained a qualifying disclosure.[256]The eighth alleged qualifying protected disclosure (para 2.1.1.8) is an email dated 20 June 2022 to the Chief Executive and Committee Chair and Leader about the same matters. The Claimant says that he relies on the correspondence of the protected disclosure because he explained why it was entirely inappropriate for Paul Bradshaw to respond to his complaint given his involvement in his departments sustained organised administrative impropriety. The thrust is the way that the Claimant himself was treated and which is entirely personal to himself. The relevant legal obligations are not specified and the conduct that he believed was inappropriate was short on the matter of being such that there is a breach of a relevant legal obligation. We do not find that this email falls within any of the categories of being a qualifying protected disclosure.[257]The ninth alleged protected disclosure is (para 2.1.1.9) an email dated 17 July 2022 to the Chief Executive and Committee Chairs and Leader about the same matters. Again the Claimant was expressing concerns about how he had been treated and there is no information that tended to show a breach of a legal obligation. There is a comment on the Coggins Report. We do not find this comes within the category of a qualifying protected disclosure.[258]The tenth alleged protected disclosure (para 2.1.1.10) is an email dated 25 January 2019 to Dylan Owen about spot contracts for interim care placements being declined because the rates “were too high”. The Claimant asserted that the decision to decline those rates was unlawful in the circumstances. The Claimant said that declining to meet peoples assessed eligible needs for purely financial reasons. While they are not obliged to meet any providers proposed rates they are required to meet eligible needs. We consider there was information that tended to show someone has failed or is failing to comply with the relevant legal obligation that is a failure to meet eligible needs. This is notwithstanding that further parts of the email indicate they do not appear to have closed that loop. The public interest test would be satisfied on this ground. We accept that the Claimant had a genuine reasonable belief in what was being said in this email and that it constitutes a qualifying protected disclosure.[259]The eleventh alleged qualifying protected disclosure (para 2.1.1.11) is an email dated 26 June 2019 from the Claimant asserting that he was still working in a hostile environment despite the change to his line management. This email is personal to him and there is nothing in the public interest. The hostile environment and challenging day was when Mr Anderson dropped a Freedom of Information Request on himself. We do not consider the facts are to be within the categories of being a qualifying protected disclosure.[260]The List of Issues then under paragraph 3 deals with the issue of detriment. (3.1.1) in 2017 Lee Anderson and Jo Davies placed restrictions on the Claimant’s flexible working. The Claimant asserts that this (and what happened after) was not done to help him be in work but was to manufacture a case against the Claimant, to force the Claimant out, because of his protected disclosures. We find that the actions of Lee Anderson and Jo Davies are not related to the protected disclosures. Mr Lee Anderson had been concerned about the sickness absences of the Claimant and this was a matter which had not been resolved informally and which had proceeded to a first formal absence management meeting as set out in the chronology. We accept the evidence of Mr Dylan Owen that there were genuine concerns on the part of management regarding the impact of absences through sickness upon the team that the Claimant was leading.[261](3.1.2) It is alleged that on or around 9 October 2018 there was a conspiracy that included Dylan Owen, Clive Pinney and Rebecca Williams to force him out after his 2015 disclosures through to dismissal. We reject the assertion that there was a conspiracy against the Claimant by these individuals. We accept the evidence of Mr Pinney that he was asked to consider what could be done in the circumstances and gave some advice. He had no motive or reason to conspire against the Claimant as alleged. We have already set out our findings in relation to why the discussions took place and what led on from those discussions which we will not repeat here. We reject the suggestion that any disclosures in 2015, whether protected or not, led to this meeting between the parties and the actions that took place from October 2018. There were no protected disclosures which led to the actions of a conspiracy and thereafter matters leading up to the dismissal as alleged by the Claimant.[262](3.1.3) In January 2019 subjected the Claimant to a criminal fraud allegation including an interview under caution. We find that the Respondents acted out of concern for the discrepancies in annual leave which required an investigation and that HR liaised with the Income and Award Fraud Team to initiate an investigation. This was unconnected and had no causal link to any disclosures, whether protected or not, by the Claimant in relation to concerns that he had about the operation of domiciliary and/or residential care provision with the Respondents. We note that on 24 January 2019 the Claimant was told that there would be no further investigation by the Income and Awards Team. On the following day 25 January 2019, the Claimant wrote an email making complaints regarding fees for a provider charging an individual a top up to enable choice. It may be thought unfortunate that matters were not put to the Claimant before a referral had been made to the Income and Awards Team but if there had been wrongdoing then it would not be inappropriate for matters to be put to that team for investigation. That is the purpose of an investigation to see if it is a matter that should go forward in a criminal field or otherwise on an allegation of impropriety.[263](3.1.4) In March 2019 subjecting the Claimant to a gross misconduct investigation. The gross misconduct investigation concerned matters which included but was not limited to the annual leave discrepancies, since the matters included allegations that potentially could be gross misconduct. We reject the suggestion that any disclosure by the Claimant, whether protected disclosure or not, was the reason why this alleged gross misconduct investigation was initiated or continued. There were genuine concerns about the matters related to what was alleged which were reasonable to be investigated in the way in which the Respondents did investigate.[264](3.1.5) In December 2019 subjecting the Claimant to an ordinary disciplinary. After the investigation two matters of alleged misconduct went forward. We find that the Investigating Officer reasonably considered on the evidence that there were matters to go forward. We reject the suggestion that this had anything to do with disclosures, whether protected or not. The level of sickness absence and issues regarding reporting were subjects which reasonably required further investigation.[265](3.1.6) On 24 October 2019 subjected the Claimant to an ordinary disciplinary hearing without a reasonable time for the Claimant to prepare his case. The Claimant had been sent a letter dated 20 August 2019 which suggested a date of 30 August 2019 but was later postponed to 24 October 2019 at the request of the Claimant. It was unfortunate that the Claimant did not pick up a parcel as he said from the post office until 21 October but it was reasonable for this hearing to proceed on the date that it was. We do not find that the decision regarding this had anything to do with disclosures, whether protected or not, by the Claimant.[266](3.1.7) On 3 December 2019 during an ordinary disciplinary hearing the Respondent prevented the Claimant from raising points about information provided by witnesses. Specifically the erroneous statements giving Dylan Owen’s testimony to the hearing. The Panel Chair was Shaun James. At one point in the hearing the Claimant is asked what is the question. There is also a reference to Heron 1. (Page 796) The observations by Mr James had nothing to do with the fact that the Claimant had made disclosures, whether protected or not. Mr James was anxious to ensure what was the relevance of questioning to the allegations which the Claimant faced. We find that the behaviour and conduct of this hearing by Mr James was not caused by any disclosures, whether protected or not, made by the[267](3.1.8) The procedural impropriety of arbitrarily finding against the Claimant in this hearing was revealed when the decision was reversed at appeal, only after the Claimant presented unassailable evidence of that impropriety. We do not consider there was procedural impropriety as alleged or that if there was it arose because of any disclosure, whether protected or not, made by the Claimant.[268](3.1.9) In March 2020 not upholding the Claimant’s appeal against the disciplinary outcome we find that Mr Grey not upholding the appeal against the disciplinary outcome did not do so because of any disclosures, whether protected or not, made by the Claimant. There is no evidence that Mr Grey was influenced by any of the matters alleged by the Claimant.[269](3.1.10) Subjecting the Claimant to an improper disciplinary/dismissal process we do not find that any disclosure, whether protected or not, led to the disciplinary/dismissal process conducted by the Respondents.[270](3.1.11) Using the Claimant’s absence as a means to threaten his employment as set out above the Respondents reasonably conducted an investigation into matters regarding the Claimant's absences and the investigations proceeded in accordance with their policies. We reject the suggestion that the matters such that it was a means to threaten his employment. We reject the assertion that this had anything to do with disclosures, whether protected or not, made by the Claimant.[271](3.1.12) Dylan Owen subjected the Claimant to disciplinary action because the Claimant left work early to collect his child. We do not accept that Mr Dylan Owen subjected the Claimant to disciplinary action because he left work early to collect his child. The reason for disciplinary action was well set out in the chronology set out above. Furthermore we do not find that this was in any way related to or caused by disclosures, whether protected or not.[272](3.1.13) Disciplinary outcomes were reached in 2019 after a refusal to investigate. We find that the disciplinary outcome in 2019 was not related to or caused by any disclosure whether protected or not by the Claimant. There was clear evidence of the findings that were made and for the sanction that was given namely a written warning.[273]We will deal with the allegations as in the List of Issues. Firstly direct disability discrimination. (8.1) Did the Respondent do the following things? (8.1.1) In 2017 threatening the Claimant with a warning and improperly limiting the Claimant’s flexible working arrangements (by not allowing home working or short notice annual leave). Prior to the Claimant being given a written warning on 15 December 2017 there had been meetings to formally review absences of the Claimant. On 1 March 2017 the notes and outcome of the first formal absence management meeting of 20 February 2017 were sent to the Claimant with the decision not to issue a written warning on this occasion. However there will be a review of sickness absence over the next 6 months and any further sickness absence may result in proceeding back to the first formal sickness absence. We do not consider that this was a threat but reflected the reality of the situation regarding the level of absence at that time of the Claimant and was reasonable and fair treatment of the Claimant. We accept the submissions of the Respondents that the contents of this letter are inconsistent with an allegation that Mr Lee Anderson stopped the Claimant working from home to drive up his sickness levels. As was recorded in a meeting of 12 May 2017 Mr Anderson advised the Claimant that following his recent sickness absence it has been agreed with HR that in the future when the Claimant is sick absences need to be recorded as sick. Holidays to cover sickness will not be granted. A written warning would be issued as a result of the latest sickness with ongoing sickness monitoring will continue. This was a management process which applied to the Claimant and was reasonable because there was a probability of annual leave masking sickness matters which was not in the Respondents or the Claimant’s interest. We find that it was not unreasonable to enforce a policy the way that Mr Anderson explained. There had been discussions about a workstation which had nothing to do with annual leave. Furthermore the meeting does not say that the Claimant cannot work from home. Following occupational health assessment there was a welfare meeting on 10 August 2017 in which Mr Anderson said he would agree for the Claimant to work from home if he felt unfit to come into work but will be for a short period of 3 months and reviewed after this time. It is noted the Claimant confirmed this did not sound too unreasonable and that he was happy with this. The contents of this letter are inconsistent with the suggestion that Mr Anderson had improperly restricted the Claimant’s ability to work flexibly. It was clear from the contents of this letter and the previous letter that Mr Anderson properly applied the policy at this time but took into account points which had been made by the Claimant regarding flexible working within the context of the need of the Respondents work. We reject the suggestion that the Claimant was threatened and improperly limited in his arrangements. The formal absence meeting of 14 December 2017 was summarised in a letter of 2 January 2018. There had been 9 occasions of absence totalling 34 days. The Claimant acknowledged that absence levels were unsustainable and unhelpful and understood that the Respondents were following the policy but hoped there could be some flexibility. The explanation given for the written warning was concern at the levels of absence the impact this has and the lack of improvement since the last meeting. We find that these were legitimate and reasonable reasons which at that time were accepted on that basis by the Claimant. The trigger for the warning was the circumstances for non-disability related absences. We reject the suggestion that the warning or circumstances surrounding the arrangements for the Claimant’s flexible working were related to his disability and were discrimination on that basis.[274](8.1.2) In March 2019 attempting to use inflated absences to find the Claimant guilty of gross misconduct and threatening to dismiss him. We find that there was no attempt to use inflated absences to find the Claimant guilty of gross misconduct. The Respondents had discovered anomalies in the leave record of the Claimant, which is separate from the sickness absences, and which led to the investigation. The letter of 6 February 2019 said that there would be a thorough investigation into allegation of potential misconduct on the basis of annual leave entitlement; and separate levels of sickness absence over a 12 month period; failure to report absence from work and annual sickness absence policy; and on 23 January 2019 inappropriate offensive behaviour towards a work colleague. It was said that the above allegations had the potential to amount to gross misconduct. The letter from Mr Munro on 20 August 2019 said that there would be considered sickness absence and failure to follow correct absence reporting procedure and these allegations had the potential to amount to misconduct. There was not a reference to gross misconduct. These matters were unrelated to the disability of the Claimant. There was no attempt to use inflated absences to find the Claimant guilty of gross misconduct.[275](8.1.3) On 11 September 2019 Martin Heuter granted short notice annual leave to other employees working the same service while refusing the same for the Claimant. In his evidence Mr Heuter said that he recalled one of his team, a person he called Sarah, had a long-term condition and needed to go home. Mr Heuter could not remember if this was classified as sickness absence or annual leave because it was too long ago. Mr Heuter said it is quite possible he allowed her to go home and either she was in work or she rang in unwell and could not work. Mr Heuter said that he had some degree of discretion in line with policy. This was the only example that we found that was put to Mr Heuter and that he dealt with. We accept the evidence of Mr Heuter on this matter. Mr Heuter said that he had made concessions to the Claimant regarding sickness. The Claimant’s position was different from that of Sarah because he had fewer occasions of absence and had made various requests for annual leave on a short-term basis such as his own sickness, his child’s sickness and ability to support a friend. The frequency of the requests from the Claimant were excessive and which informed matters that proceeded forward in the Claimant's case. In any event the Claimant was being monitored by an informal/formal basis regarding the number of his absences which were materially different to the one instance in which Mr Heuter exercised his discretion in relation to the other employee (Sarah). We reject the allegation this rejection of the Claimant’s short notice annual leave was because of his disability.[276](8.1.4) In October 2019 and December 2019 holding an ordinary disciplinary hearing. The reasons for this hearing set out above was the basis for the Respondents to enquire into those matters. The Freedom of Information response which was relied upon by the Claimant to show the exceptional treatment of himself is lacking in detail regarding the sickness records of the other employees. There are differences between the way long term absences and short-term absences are treated under the policies of the Respondents. The points made by the Respondents in submission about the possibility to say what were the circumstances of other employees does not allow for proper inferences of exceptional treatment to be found as contended by the Claimant. We find that no such inferences can be made. We reject the suggestion that the ordinary disciplinary hearing and its outcome was based on disability and/or was discrimination based on[277](8.1.5) In March 2020, on appeal, upholding a formal warning about the Claimant’s sickness absence. The outcome of the disciplinary appeal hearing by letter dated 18 March 2020 caused the review undertaken by the panel of sickness absence and occupational health reports in particular the lower back condition be considered in the context of overall sickness absence. It records there were 5 periods of sickness absence with a total absence period of 33.5 days between 5 March 2018 and 13 December 2018 that were not related to sickness absences caused by “back and neck problems” or “other musculoskeletal problems”. The panel were content that the level of absence even with the above consideration was unacceptable therefore breaching the sickness absence management policy. The panel also acknowledged the above breach constituted misconduct. It was concluded a written warning was an appropriate outcome of the disciplinary hearing. We find that the panel chaired by Mr Gray took into account that disability aspect arrived at a conclusion and an outcome that was based upon non-disability related absences. There was a reasonable conclusion reached by Mr Gray and the panel. We reject the suggestion that this was direct disability discrimination.[278]In relation to discrimination arising from disability (9.1) did the Respondent treat the Claimant unfavourably by 9.1.1 in 2017 threatening the Claimant with a warning and improperly limiting the Claimant’s flexible working arrangements (by not allowing home working or short notice annual leave). As set out above we find that the Claimant’s manager Mr Lee Anderson permitted the Claimant to work flexibly on terms advised by the Occupational Health and his condition was not improperly restricted. The Claimant did not suffer the treatment that he complains about. The points set out above in relation to direct discrimination factually are repeated. The warning had been triggered by his sickness absences which were not disability related. Treatment did not arise in consequence of the Claimant’s[279](9.1.2) In January 2019 subjecting the Claimant to a criminal fraud allegation including an interview under caution. These related to annual leave discrepancies as set out above. There was an interview under caution. This process was in line with the Respondents policies this had nothing to do with sickness absences. The decision to refer to the Income and Awards Team was because of anomalies surrounding the Claimant’s annual leave. It did not arise from any payments received during any sickness absence. It was reasonable for an investigation into these matters to be made. We find that the Respondents did not initiate the investigation because of something arising in consequence of the Claimant’s disability.[280](9.2) Did the following things arise in consequence of the Claimant’s disability –9.2.1 the Claimant’s absences from work were caused by his disability;9.2.2 the Claimant was dismissed; 9.3 was the unfavourable treatment because of any of those things –9.3.1 in 2017 did the Respondent threaten the Claimant with a warning and improperly limit his flexible working arrangements because of those absences?9.3.2 In January 2019 did the Respondents subject the Claimant to a criminal fraud investigation including an interview under caution because the Respondent was trying to force the Claimant to resign because of his sickness absence? 9.4 was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were9.4.1 to ensure that it always has a sufficient workforce as its disposal to ensure it can discharge its commitments to those who live within its jurisdiction9.4.2 to ensure that it serves as being managed and operating effectively. As already set out we find that there was no unfavourable treatment because of the Claimant’s disability. The warning and flexible working arrangements took into account the Claimant's disability and were for reasons unconnected with the disability. We reject the suggestion that the Respondent was trying to force the Claimant to resign because of his sickness absence as a result of his disability. The Respondents treatment of the Claimant was aimed at a legitimate aim to ensure that services were being managed and operated effectively and to avoid impact upon the workforce. There was no unfavourable treatment as alleged and we find that there was no discrimination arising from the Claimant’s disability.[281]Reasonable adjustments (10.1) Did the Respondent know or could it reasonably be expected to know that the Claimant had a disability. It is admitted by the Respondents that the Claimant’s back condition at all times was a disability. (10.2) A “PCP” is a provision criteria practice. Did the Respondent have the following PCP’s – 10.2.1 attendance requirement/the removal of flexible working provisions the Respondents agree that the Claimant was required to attend the office to work. The Respondents also say that it is accepted that on occasions during the employment and specifically during 2017 the Claimant would have been unable to attend at the office because of his back condition and that the Respondent would have known about this effect. The Respondents say that in August 2017 the manager agreed to implement that adjustment regarding permitting to work from home and that that effectively discharged any duty on the employee arising from this condition. We accept the submissions of the Respondent that they followed the recommendations to allow the Claimant to work from home when his back prevented him from attending work.[282](10.2.2) Absence trigger points. The Respondents had trigger points in its sickness absence policy. The Claimant was not substantially disadvantaged because of his disability in respect of trigger points because adjustments had been made to exclude disability related absences. We find that the reasonable adjustment was made in relation to this matter.[283](10.2.3) Failing to apply flexible working arrangements for the Claimant and a handful of other staff that hundreds of other staff were enjoying. There is a flexible working policy with the Respondents and in August 2017 the Claimant’s manager gave permission for the Claimant to work from home when he felt unfit to attend work. In May 2022 Miss Gabriel advised the Claimant that he could work from home 80% of the working week. This was at a time of post COVID when there had been a substantial shift in the ability to work from home. We do not find that hundreds of other staff were enjoying flexible working arrangements which were denied to the Claimant. Reasonable adjustments were made by the Respondent in relation to the Claimant’s disability in this respect.[284](10.2.4) Standards of behaviour. The Respondent has standards of behaviour expected of all staff. There is no evidence to support the suggestion that the Claimant’s disability gave him a substantial disadvantage in terms of complying with those standards of behaviour. We reject the suggestion that there was failure to make reasonable adjustments in relation to the behaviour of the Claimant.[285](10.3) Did the PCP’s put the Claimant under substantial disadvantage compared to someone without the Claimant’s disability in that (10.3.1) in 2017 and thereafter the removal of flexible working arrangements and failure to consider and amend trigger points causing exacerbation in the Claimant’s condition, stress and anxiety and contributed to the breakdown in employment relationship. We find that the Claimant was not put under any disadvantage. There is no substantial disadvantage compared to a nondisabled person. The matters set out above are repeated. We reject the suggestion that the removal of flexible working arrangements and failure to consider and amend trigger points in any event contributed to the breakdown in the employment relationship.[286](10.3.2) Making the Claimant fear for his employment, the threat of contract termination, stress and anxiety, pressure to attend work, inequitable treatment compared with others. Our findings above we do not find that the Claimant was put to the disadvantages that he complains about in relation to this matter.[287](10.3.3) He was stressed and anxious and 6 years of improper treatment meant the Claimant had run out of grace and capacity to forgive. The Claimant was more combative in language but was not abusive or threatening or insulting. The premise of this allegation is of a substantial disadvantage. The Claimant was not put to a disadvantage that is alleged. We repeat that the Respondents had followed the reasonable process and taken into account the Claimant’s disability at all stages.[288](10.4) Did the Respondent know or could it reasonably have been expected to know the Claimant was likely to be placed at a disadvantage. For the reasons set out above we do not find that the Claimant was put at a substantial disadvantage.[289](10.5) What steps could have been taken to avoid the disadvantage the Claimant suggests.[290](10.5.1) Allow the Claimant to take annual leave at short notice.[291](10.5.2) Adjust trigger points for disability related absence.[292](10.5.3) Allow home working[293](10.5.4) Stick to the facts and not use the way the Claimant articulated himself as a way to dismiss him.[294]The Tribunal repeats its findings set out above regarding the way the Respondents dealt with the request for annual leave at short notice, trigger points, and home working. We will deal with more fully the question of dismissal but we reject the suggestion that the Respondents did not stick to the facts. It is clear from the correspondence and what the Claimant said at various hearings that the Claimant did not agree with findings which were made and had a version of belief regarding the facts which were not supported upon investigation by those persons investigating the matter. We do not find that there was a failure to make reasonable adjustments in this respect.[295](10.6) Was it reasonable for the Respondent to have taken those steps and when the Claimant says the Respondent first failed to make adjustments in 2017 and repeated it on subsequent occasions, (10.6.1) when subsequent occupational health reports were received (10.6.2) following Julia Coggins’s Report (10.6.3) the March 2019 disciplinary process (10.6.4) the March 2020 appeal against the formal warning (10.6.5) in welfare meetings and communications about return to work once the Claimant was absent on long term sickness absence (10.6.6) in Gemma Gabriel and Paul Bradshaw’s response to Julia Coggins’s Report (10.6.7) at dismissal stage. We find that the Respondents did make adjustments as we have set out above. There were further adjustments which were made comprehensively after receipt of Julia Coggins’s Report. Adjustments were made in relation to the March 2019 and March 2020 appeal hearing. Matters complained of by the Claimant we find were not related to his disability. In short there is no failure to make reasonable adjustments as alleged or at all.[296](10.7) Did the Respondent fail to take those steps to which the Tribunal answers no.[297]Harassment related to disability (11.1) Did the Respondent do the following things. (11.1.1) In 2017 threatening the Claimant with a warning and improperly limiting the Claimant’s flexible working arrangements (by not allowing home working or short notice annual leave) (11.1.2) In January 2019 subjecting the Claimant to criminal fraud allegation including interview under caution (11.1.3) In March 2019 attempting to use inflated absences to find the Claimant guilty of gross misconduct and threatening to dismiss him (11.1.4) In March 2020 on appeal upholding a formal warning about the Claimant’s sickness absence. We find that none of these matters were unwanted conduct which violated the Claimant’s dignity or created an intimidating hostile degrading humiliating or offensive environment for the Claimant. Nor was that the effect of these matters even though the Claimant felt that it was unreasonable for the Respondents to undertake these processes. The Tribunal repeats the matter set out above regarding the reason and purposes and also the way that the matter was conducted by the Respondents.[298](11.1.5) Martin Heuter and HR engaged in disingenuous communications with the Claimant when the Claimant was on long term sickness absence and used the Claimant’s disability to manufacture cause to take action against him. We find as set out above that there had been meetings between Martin Heuter, Michelle Griffiths with the Claimant on 22 September 2020 and that there was an exchange between the Claimant and Mr Heuter in which Mr Heuter said he could not commit to a change in the working pattern given the restrictions imposed by the COVID pandemic and could not commit to a firm proposal regarding what a return to work would look like for the Claimant at that time. It was impossible to predict what future restrictions would be in place when the Claimant returned to work. Mr Heuter said that the Respondents were committed to making any reasonable adjustments which may assist in his role. None of these matters come within the definition of harassment as we find. Indeed these were straightforward and clear summaries of the position and were reasonable matters enunciated by Mr Heuter.[299](11.1.6) Gemma Gabriel and thereafter Paul Bradshaw (July 2022) misrepresenting and lying about Julia Coggins’s Report to continue a campaign against the Claimant. There has already been made the point that Mr Bradshaw was not the author of letters although his name was on there. We reject the suggestion that Ms Gabriel had a campaign against him. She had recently arrived in post and there is no basis for suggestion that Ms Gabriel harassed the Claimant. Indeed Ms Gabriel was anxious to engage with the Claimant about matters. We reject the allegation that there was misrepresentation or lying about Julia Coggins’s Report. The Claimant refused to engage with HR at this point. There was nothing of the nature of harassment whether based on disability or otherwise.[300](11.1.7) Using the Claimant’s communications as evidence when dismissing the Claimant and not taking the opportunity to correct their previous actions/inactions. The Respondents did use communications as part of the evidence for dismissing the Claimant. The communications are set out above earlier in this Judgment. We find it was reasonable for the Respondents to make reference to those communications when considering their decision. There is no evidence that the Claimant was harassed for reasons relating to his disability the decisions made by Lynette Lovell or Nigel Brinn. We reject the allegation that this matter was in any way harassment or the opportunity to correct previous actions/inactions pointed to harassment.[301]We find that the allegations connected with disability, are ill founded and a link between the Claimant’s disability and alleged discrimination of whatever sort and/or harassment does not exist. Those complained of were not related to the Claimant’s disability.[302]Paragraph 5 of the List of Issues is headed unfair dismissal/automatic unfair dismissal. It is accepted that the Claimant was dismissed.[303](5.2) Was the reason a principal reason for dismissal where the Claimant made a protected disclosure if so, the Claimant would be regarded as unfairly dismissed. We have already in our assessment of the evidence given by Mrs Lynette Lovell, who dismissed the Claimant, and Mr Nigel Brinn, who dealt with the appeal against dismissal. For the avoidance of doubt we find that both decision makers restricted themselves to the matters that they were asked to decide and did not consider or were in any way influenced by any protected disclosures that had been made by the Claimant. Their reasons as set out for dismissal we accept were their genuine reasons and were made in good faith. Although the Claimant says there was a conspiracy involving senior managers amongst others and HR for him to be dismissed we accept that Mrs Lovell and Mr Brinn exercised their own discretion and judgment in relation to the decisions they arrived at and that there was ample material for them to come to the decision that they did irrespective of any protected disclosure. Protected disclosures that had been made by the Claimant played no part in their decision to dismiss the[304]Dealing now with ordinary unfair dismissal under Section 98 of the Employment Rights Act 1996. We set out previously in the Judgment reference to the contents of the hearings before Mrs Lovell and Mr Brinn. It would not be reasonable for an investigation to take place as the Claimant alleged for the reasons which were given. The Claimant at the time of dismissal had a fixed view regarding a criminal conspiracy, a clear view of what the truth was regarding that criminal conspiracy and would never have accepted anything other than what he had alleged in his various emails and submissions that he made at the hearings. We find that the Respondents did act reasonably in considering that there had been a substantial and irretrievable breakdown in the working relationship with the Claimant. The Claimant by his own words and behaviour at hearings amply demonstrated that there had been this substantial breakdown. It was reasonable for the Respondents to conclude that that was caused by the behaviour and words used by the Claimant. It is unfortunate that by this time the Claimant had entrenched in what he wanted which was nothing less than not just an investigation but retribution to be made against those that he perceived had conspired against him. Indeed his conspiracy extended to all those from the Respondents who were tasked with having to deal with the situation whether from HR or otherwise or at hearings. In these circumstances it was reasonable for the Respondents to make the conclusions that they did. Reinvestigation would have been pointless.[305]There is one matter which the Respondents could and should have dealt with differently. In the evidence of Mr Clive Pinney it was accepted that correspondence by email sent to Mr Pinney did constitute an allegation of a protected disclosure but no action was taken in relation to following through with that matter. Although we find it had no causative effect upon the dismissal or otherwise any detriment to the Claimant as alleged by the Claimant, it would have been better for the Respondents to have expressly dealt with that matter and may have avoided a lot of the frustration that the Claimant clearly felt at this time. It may even have assisted in avoiding protracted arguments about matters. However we do not consider that in applying Section 98(4) that this matter is such that it would in any way have made the dismissal unfair.[306]Having considered all the matters and circumstances as required under Section 98(4) we find that the dismissal of the Claimant was fair.[307]Regarding matters of limitation whilst it is not necessary for us to deal with this in the light of our decision, we should add that regarding the claim for reasonable adjustments we would have extended time in relation to those claims as well as public interest disclosures because of the sequence of events that we have set out above and the views of the Claimant repeated during various proceedings about the way that he perceived himself to have been treated. Amongst other things, we have noted that the Claimant only became aware of what he says was the “criminal conspiracy” between Dylan Owen, Michelle Griffiths and Clive Pinney upon disclosure of documents in relation to his grievance. Indeed it appears to have been this disclosure which triggered a considerable part of the case that was put by the Claimant at various times to the Respondents. Bearing in mind the wealth of contemporaneous documentation we do not consider there was any prejudice to the Respondents in dealing with the allegations regarding disability discrimination and/or alleged detriment claims. We consider that discrimination claim that it was just and equitable to extend time for the discrimination claims and that in relation to the detriment claims to form part of a sequence of broadly similar alleged acts or failures and the allegations made within a reasonable time.[308]In final conclusion we find that the claims for unfair dismissal, automatic unfair dismissal, detriment because of protected disclosures, direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and harassment are dismissed.