Mr F D CruzClaimantB Braun Avitum UK LtdRespondent
Before
Employment Judge C SharpIn person for claimantMs S Ellison (instructed by Solicitor) for respondentDate 21 June 2024
REASONS
[1]The Claimant submitted an application to amend his claim in several respects on 6 February 2024. The Claimant sought to amend his claim by making typographical amendments to his grounds of complaint (the Respondent does not object; the Tribunal therefore will consent to these amendments). A helpful list has been provided by the Respondent in its letter of 19 February 2024; in essence these amendments centre on clauses 5, 7.5.26, 7.5.57, 7.5.59, 10.18 and 10.25 of the Grounds of Complaint (as currently drafted) where the Claimant wants to add words such as “partially” and “limited”. [Judge’s note - Since handing down this Judgment orally, I have seen the updated grounds of complaint provided by the Respondent’s representative and approved them – the numbering is different in this version due to the consequences of my amendment decision][2]Originally, it was understood that the Claimant sought to add 21 more breaches of contract to the constructive unfair dismissal claim, to which the Respondent objected. However, during the course of the hearing, the Claimant told me repeatedly that he was not seeking to add these allegations to the claim before the Tribunal. I clarified with him that this was the case, as his email and the list of additional claims he wrote that he wanted to add did set out these allegations in detail. The Claimant was adamant that he did not wish to do so. I acknowledge that there is a logic to this position – the Claimant only discovered these points after receiving the outcome between September 2023 and January 2024 to a DSAR he made to the Respondent; he did not know about these matters when he resigned. Therefore, the Claimant could not have had them in his mind when he resigned.[3]As a result, I did not treat the Claimant as applying to amend his constructive unfair dismissal claim. In addition, I explained to him that he was not entitled to a right of reply to the Grounds of Resistance of the Respondent and to change the grounds of complaint in order to do so. The way to address factual matters is either through his witness statement or by asking questions of witnesses or by making submissions based on the evidence in the hearing bundle. The Claimant is not permitted to amend his grounds of complaint to add new commentary or include matters arising from the DSAR of which he is now aware if they are not the basis of a claim before the Tribunal. I reminded the Claimant that he should focus on setting out the facts (including relevant background information) in his witness statement and his arguments in his submissions at the end of the final hearing.[4]That therefore means what I had to determine today were two points:a. can the Claimant add 19 more allegations of direct race discrimination to the current list of allegations of direct race discrimination?b. can he add a new claim of harassment under s26 Equality Act 2010? The summary of the new allegations and claim the Claimant wanted to add was usefully set out in a document sent by the Claimant entitled “Applied ET1 correction/additional claim and list of events forming parts of the claims – pending approval” dated 6 February 2024 (he also provided a marked up draft amended grounds of complaint).
Law
[5]The principles that govern applications to amend were summarised by the Employment Appeal Tribunal in Cox v Adecco UK Limited and others [2023] EAT 105 as follows: “6. The importance of the accurate pleading of a claim before the ET was stressed by the EAT in Chandhok v Tirkey [2015] ICR 527; as Langstaff J observed: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made—meaning … the claim as set out in the ET1”…[8]As His Honour Judge Tayler observed in Vaughan v Modality Partnership [2021] IRLR 97 (see paragraph 12), the approach to be adopted to deciding whether or not to exercise the discretion to allow an amendment has its origin in the National Industrial Relations Court decision in Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650, where it was stated (see p 657B-C): “In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”[9]In [Selkent Bus Co Ltd v Moore [1996] ICR 836, [1996] IRLR 661] it was similarly said that regard must be had to “all the circumstances”, in particular any injustice or hardship which would result from the amendment or a refusal to make it. In providing guidance as to the kind of factors that would be relevant, Mummery J suggested these would include (non-exhaustively) the nature of the amendment sought, the applicability of time limits, and the timing and manner of the application, whilst emphasising: “… the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment.”[10]In later cases, it has been confirmed that the guidance in Selkent was not intended to be a box ticking exercise, but a discussion of the kinds of factors likely to be relevant when carrying out the required balancing process; see Abercrombie v Aga Rangemaster Limited [2013] EWCA Civ 1148, per Underhill LJ at paragraph 47, and Vaughan at paragraph 16.[11]Where the proposed amendment simply amounts to a re-labelling of facts already pleaded, it will generally be readily permitted. Even, however, if it would introduce a new complaint or cause of action, the ET still has a discretion to allow the amendment; see Underhill J (as he then was) at paragraph 13 Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 (6 June 2007, unreported). That is so even where (as here, see section 48(3) ERA) the statutory test to be applied in determining whether to extend time would be of reasonable practicability rather than considering what would be just and equitable. In carrying out the balancing exercise it is required to undertake, the ET’s approach should be informed by the substance of the amendment, not merely its form; as Underhill LJ stated in Abercrombie: “48. … the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted: see the discussion in Harvey on Industrial Relations and Employment Law para. 312.01-03.”[12]And as HHJ Tayler cautioned in Vaughan: “21. … Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment. Representatives have a duty to advance arguments about prejudice on the basis instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice. This will save time and money and allow the parties and tribunal to get on with the job of determining the claim.”[13]The focus on the practical consequences of allowing or refusing an amendment requires the ET to determine whether - and, if so, how - it is actually of importance to the claim or defence that the amendment be allowed. That can then be weighed in deciding where the balance of justice lies. Examples provided in Vaughan provide a helpful illustration of this point: “24.1. A minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing. 24.2. An amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim. 24.3. A late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs.” However, as the EAT then went on to observe: “25. No one factor is likely to be decisive. The balance of justice is always key.”” 6. In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 132 the Employment Appeal Tribunal confirmed that the potential merits of a proposed complaint may also be a relevant consideration. However, any such assessment must be properly reached by reference to identifiable factors that are apparent at the preliminary hearing and taking proper account of the fact that the tribunal does not have all the evidence before it and is not conducting the trial. Analysis 7. Having considered the relevant factors, I concluded that I would refuse the Claimant’s application to amend his claim for both the additional claims of direct race discrimination and to bring the harassment claim. 8. Dealing first with the application to bring 19 additional allegations of direct race discrimination, these are new claims not within the ET1. While the ET1 does mention the submission of a grievance letter by Chloe O’Grady on or around 11 October 2022, a claim that the Claimant seeks to add is that that DW (Deanna Webber) actually reviewed the grievance letter and gave feedback on it before it was then officially submitted. I proceeded on the basis that all the additional direct race discrimination claims were new and not within the ET1. 9. I acknowledge that there is a claim for direct race discrimination already before the Tribunal; however, the inclusion of 19 more allegations based on different facts would be a substantial expansion of the current claim. As Abercrombie noted, permitting the additional claims is likely to involve substantially different areas of enquiry than the original claim. 10. In terms of the timing of the application, the Claimant explained that the reason they were not in the original claim form was because he said he was unaware of the matters until he reviewed the outcome of the DSAR. The Claimant did not provide with any evidence on this – the Tribunal does not know exactly what he received or when from the DSAR. The Claimant’s oral evidence was that he had the information drip fed to him from a period of about September 2023 to January 2024, but due to the lack of evidence and specificity about what he found out and when, I did not know whether the evidence/information was received as far back as September 2023 or received as late as January 2024. This is significant as it covers a 4-month period of time when the Claimant was allegedly receiving the outcome of the DSAR, and the time limit to present claims are 3 months minus a day from when the act happened. Allowing for the argument that until the Claimant is aware of whatever he seeks to complain about, it is more likely to be just and equitable to extend time, knowing exactly what the Claimant knew, and when, is essential. When considering the “just and equitable” extension of time test that applies to discrimination cases, the Claimant did not give any evidence of any reason why it would be just and equitable; he has told his story and left it at that. 11. It means that in my view, the issue of the timing of the application and time limits generally are closely connected. I was not assisted by the Claimant in understanding why the application was not made until 6 February 2024. I do not know if the application was made promptly. The claims appear to be out of time and the Claimant has not persuaded me that it is just and equitable to extend time. 12. I then considered the issue of merit. Often, the question as to whether there are merits in a potential claim is best left to a Final Hearing after all the evidence is before the Tribunal and subjected to submissions. Sometimes, the issue of merit and reasonable prospects of success is considered in a preliminary hearing specifically listed to consider a strike out judgment or a deposit order; such hearings should not turn into a mini-trial. This application is a rare exception in my judgment because when I consider the additional direct race discrimination claims that the Claimant wants to add, at no point does he explain in any way how they occurred because of his race as an Asian Philippino person. It is a fundamental tenet of discrimination law is that a Claimant cannot simply rely on the fact that they are of a particular race and assert that is enough to permit a Tribunal to find discrimination. There needs to be something more to enable the burden of proof to shift to the Respondent. I asked the Claimant about this more than once, and he was unable to explain the link to his race. 13. When I considered the specifics of what the Claimant wanted to add, they did not in my judgment obviously amount to discrimination or less favourable treatment due to race. One example was the allegation that on 15 December 2022 the Respondents were already planning (with their script to suspend) to call the Claimant the following day 16 December 2022 for a disciplinary investigation but it did not happen. What is the less favourable treatment if nothing happened? What the Claimant is asserting is that the Respondent did not do the thing that he did not want it to do and there is no explanation how his race is relevant.
Analysis
[14]I accept that some of the new allegations include matters that potentially could be less favourable treatment, such as Chloe O’Grady submitting a grievance letter that has been edited by DW. Again, I do not understand on what basis it is argued that it has happened because of the Claimant’s race. As a result, I concluded that the additional claims of direct race discrimination appear to have no merit.[15]I also considered the balance of prejudice. When I asked the Claimant about this, his answers were confused and talked about being able to rely on particular evidence at the final hearing and the difficulty of agreeing the contents of the hearing bundle. The Claimant said that he wanted to clarify matters. I did ask the Claimant about this more than once and explained the relevant principles again, but the Claimant was not able to direct me to any prejudice he would suffer.[16]In contrast, the Respondent’s representative submitted that if the amendment was granted, it would be put to considerably greater expense and there was a 6-day final hearing due to start in May 2024. By this point of time, the claim should be clear and not subject to change, and the hearing bundle should be close to being agreed. Ms Ellison on behalf of the Respondent noted that if the application was granted, it would have to call more witnesses, collect additional evidence, and entail further discussions between the parties. Ms Ellison indicated that as I put it during the course of the hearing the Claimant seemed to be struggling to see the wood from the trees. Expanding the claim would increase the costs and difficulties for the Respondent in dealing with an unrepresented Claimant who is struggling to focus on what is relevant. Ms Ellison also noted that the Claimant had not been able to explain any link to his race, which if the amendment was granted would inevitably lead to a request for further and better particulars.[17]Stepping back and considering what is in the interests of justice, I concluded that it was not in the interests of justice for me to permit the additional direct race discrimination claims to proceed. The claim would be substantially expanded, putting the final hearing dates at risk, the Claimant has not persuaded me why it would be just and equitable to extend time, the claims appear to have little or no merit for the reasons outlined above, and the Respondent would be put to considerable prejudice.[18]I reached the same conclusion to refuse permission to allow the Claimant to bring the harassment claim, but for different reasons.[19]The Claimant was not relying on the DSAR to explain why the harassment claim was not within the claim form. Harassment is a completely different claim to the claims currently before the Tribunal, with different relevant legal principles and evidence required. I accept that factually all of the information he relies upon were set out within the original grounds of complaint. There is one slight exception which is allegation 3(d)(xx) (in the list of additional claims), which is mentioned in the summary of events for unfair dismissal but not specifically pleaded as a claim.[20]The Claimant’s claim form set out clearly the heads of claim he wished to be determined by the Tribunal; harassment was not one. It was evident that the Claimant had considered the Equality Act 2010 and chose the heads of claim that he wished to pursue when presenting his claim to the Tribunal. As Ms Ellison submitted, just because an event is mentioned in a claim form, it does not mean that a claim has been brought about it. I bore in mind that Employment Judge R Harfield had closely examined the claim at the case management preliminary hearing on 18 January 2024 and found that the Claimant had not brought a claim of harassment. The elements of harassment were not within the original grounds of complaint.[21]Harassment is unwanted conduct that relates in this case to race. It is not enough therefore for the conduct complained of to be unwanted, it must relate to the protected characteristic. To use an example from a sex case, saying to a lady that she looks very attractive today is not openly making a sexual comment but one can potentially draw a line between that comment, which is the unwanted conduct, and to her sex because it could be a comment that could be related to her sex or of a sexual nature for example.[22]The allegations that the Claimant complains of as harassment do not set out any link to race. One example is that he alleges on 4 October 2022 he withdrew from mediation and requested instead for a formal disciplinary hearing so the Claimant could present his case properly. DW allegedly threatened him to prepare for a counter grievance that would be lodged against him. There was nothing in those words in my view, that could reasonably be read by an objective person as having any relationship to race.[23]If I look at another example, on 22 November 2022 the Claimant asked for a copy of Chloe O’Grady’s grievance letter with his notes written on it but was denied. MK allegedly said that she would give him the copy but would ask Vanessa first. The Claimant complains that he did not receive such document until he asked for a copy from LR days before the first disciplinary meeting. There is nothing here that relates to race at all.[24]Consequently, I agreed with Ms Ellison’s submission that the harassment claim was a wholly new claim, and it was not re-labelling what was before the Tribunal.[25]In terms of the timing of the application, the Claimant himself said that the DSAR was not relevant, and he knew all of the matters on which he relies for the harassment claim when he presented his claim. He did not explain why harassment was not listed as a claim in the original grounds of complaint or why he delayed in making the application to amend until 6 February 2024. The Claimant gave evidence that he was supported by a Union and had representation through the Union throughout the period of his employment and for a short period after he left his job. I understood his point that having lost his job he was unable to continue to pay the subscriptions, but that did not change the fact that he did have Union support.[26]The Claimant also talked about accessing advice through his insurer, about contacting ACAS, about his research and access to the internet. Mr Dela Cruz is an educated and intelligent individual who was able to learn about the Equality Act and potential claims that he could have brought. I consider that not only is the claim of harassment out of time, but there was no explanation before me why it was not in the original claim form or why it would be just and equitable to extend time. I decline to extend time in the circumstances.[27]I reiterate my findings about merit – there is no explanation how the harassment allegations relate to race, and it is not obvious on the face of the allegations. My findings about the balance of prejudice for the additional direct race discrimination claims apply equally to the harassment claim. I am not persuaded that the balance of prejudice is in the Claimant’s favour; it is in the Respondent’s favour. Stepping back again, I do not consider it to be in the interests of justice to allow the Claimant to amend his claim to bring a new harassment claim that appears to have little or no merit, which has been brought outside of the statutory time limit and for which time has not been extended, which would cause the Respondent prejudice and imperil the listed final hearing.
Law
[28]Section 13(1) Equality Act 2010 provides that: “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.”[29]Section 23(1) then notes that there must be “no material difference between the circumstances relating to each case” when undertaking the comparison.[30]The Court of Appeal summarised the approach to be taken in relation to section 13, and in particular the required degree of causation arising from the words, “because of”, in Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425, and stated, at paragraph 12: “Both sections use the term "because"/"because of". This replaces the terminology of the predecessor legislation, which referred to the "grounds" or "reason" for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the "reason why" issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport [1999] UKHL 36, [2000] 1 AC 501, referred to as "the mental processes" of the putative discriminator (see at p. 511 A-B). Other authorities use the term "motivation" (while cautioning that this is not necessarily the same as "motive"). It is also well-established that an act will be done "because of" a protected characteristic, or "because" the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.”[31]The House of Lords also noted, in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 that, in relation to causation, the Tribunal must identify “the real reason, the core reason, the causa causans, the motive”.[32]Section 136 Equality Act 2010 deals with the burden of proof and provides as follows: “(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[33]A two-stage test is therefore involved. First, the claimant has to prove facts from which the Tribunal could decide that discrimination had taken place, and secondly, if so, the burden of proof would then shift to the respondent which would have to prove, on the balance of probability, a non-discriminatory reason for the treatment in question.[34]With regard to the first stage of the test, i.e. the conclusion that there are facts from which, in the absence of a non-discriminatory explanation, discrimination could be concluded, the EAT made clear, in Qureshi v Victoria University of Manchester [2001] ICR 863, that the Tribunal must look at the totality of its findings of fact and decide whether they add up to a sufficient basis from which to draw an inference that the respondent has treated the complainant less favourably on the protected ground.[35]The Court of Appeal made clear however, in Madarassy v Nomura International PLC [2007] ICR 867, that something more than less favourable treatment compared with someone not possessing the claimant's protected characteristic is required. In that case, Mummery LJ noted, at paragraph 56, in relation to the burden of proof: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal ‘could conclude’ that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.”
Findings
[36]Our findings of fact, relevant to the issues we had to determine, reached on the balance of probability where there was any dispute, were as follows. Headings have been issued in an attempt to provide some structure to the narrative of events, but they should not be taken as indicators of selfcontained sections; there may be cross-overs between various sections, and not all findings will fit neatly under a particular heading.
Background
[37]The Respondent provides dialysis services at units operated by medical professionals, principally registered nurses. In South East Wales it operates at least four separate units, in Llantrisant in Mid Glamorgan, in Newport, in North Cardiff, and in South Cardiff.[38]The Claimant was one of the dialysis nurses, and he commenced employment on 7 June 2005. The Claimant is Filipino and therefore English is his second language. His standard of written and oral English is high but, understandably, his level of understanding of English is not as high as it would be if it was his first language.[39]The Claimant was initially employed as a Healthcare Assistant before progressing to a Dialysis Nurse and then to a Senior Dialysis Nurse. He applied for the role of Unit Manager of the Cardiff North Unit in April 2021 but was unsuccessful following interview. Shortly afterwards however, he was appointed to the role of Unit Manager of the Llantrisant Unit, commencing that role on 7 June 2021. Prior to that he had been a Senior Dialysis Nurse at Newport. As part of the Claimant’s role as Unit Manager, he undertook an Internal Leadership Programme known as “Passport to Leadership”.[40]Deana Webber was, at all relevant times, in overall charge of the Respondent’s Dialysis Units in South East Wales as the Respondent’s UK Operations Manager. She had also acted as the Llantrisant Unit Manager from 2019 until the Claimant took over in June 2021. She then remained a regular visitor to the Llantrisant Unit.[41]No disciplinary or performance concerns appear to have arisen in relation to the Claimant prior to the events in 2022, which are discussed in more detail below. Indeed, in his end of year review for 2021, undertaken by Ms Webber on 31 January 2022, she noted that the Claimant had “demonstrated dedication and determination in his tenure as a new UM”, and that the Claimant “leads from the front in a calm and resolute approach which has resulted in him managing the ongoing challenges with patients and staff really well”. She also noted that the Claimant’s enthusiasm had confirmed to her that the Respondent had offered the post to the right candidate.[42]From a fairly early stage in the Claimant’s tenure as Llantrisant Unit Manager however, there appeared to be difficulties, indeed conflict, between the Claimant and one of the Unit’s Senior Dialysis Nurses, Chloe O’Grady. There appear also to have been difficulties between Ms O’Grady and another of the Senior Nurses. During the course of the hearing, Mr Gittins put to the Claimant that there were, in effect, two cliques, a “Ferdi camp” and a “Chloe camp” and the Claimant did not disagree that that had been the case.[43]The issues between Ms O’Grady and the Claimant reached a stage where Ms Webber undertook a form of mediation between them in February 2022. Revalidation issues[44]To maintain their registration as nurses with the Nursing and Midwifery Council (“NMC”), nurses are required to go through a revalidation process every three years. The process requires the individual nurse to provide evidence of having worked a certain number of practice hours and of having undertaken a certain number of hours of continuing professional development (“CPD”). The nurse is also required to produce five pieces of practice related feedback, and five written reflective accounts of their CPD and/or practice. They must then have a reflective discussion on the reflective accounts with another NMC Registered Nurse, Midwife or Nursing Associate.[45]That other person, the confirmer, must then complete a form certifying that they have seen evidence regarding the number of practice hours and hours of CPD and the practice related feedback and reflective accounts, and that the reflective discussion has taken place. The process is undertaken online.[46]The revalidation process confirms a point that arises within the NMC Code of Practice generally, that notes or reflections should not include specific names, dates or locations, or descriptions of circumstances where an individual could be identified from the circumstances. The documents relating to the process indicate that the information must be recorded in a way that “no patient, service user, colleague or other individual can be identified from the information”. We anticipated that that requirement was principally focused on patient confidentiality, but we noted that it extended to colleagues.[47]As we have noted, the revalidation process is undertaken online, and there is no requirement for the specific accounts and reflections to be uploaded. Unless therefore, the particular registrant is someone who is looked at in more detail by the NMC on a sampled basis, the accounts and reflective forms will remain between the registrant and the confirmer.[48]In Ms O’Grady’s case, she completed a reflective accounts form which referred to “adjusting to a new manager”. In this, Ms O’Grady referred to having to adjust to a new manager whose expectations of her were different to those she was used to, and which were at times, she felt, unrealistic. She referred to having been used to having a lot of autonomy and being trusted in her decision making, which she felt had changed. She went on to say that she had attempted to discuss that on numerous occasions with the manager, but that had not had a good outcome as the manager could become very defensive.[49]The process then required Ms O’Grady to outline what she had learned from the event or experience, and she commented that everyone had different management styles and personalities, and that it was important to understand what the next step would be, and who the person could be who would support in those situations to ensure resolution without impacting on the team. In that section, Ms O’Grady referred to the manager having made comments such as having been warned about Ms O’Grady before they arrived, and as having made a specific comment to her as being a “Power Ranger” to another member of staff.[50]Within that reflective account form, Ms O’Grady used “he” and “his” when talking about her manager. That clearly narrowed the range of individuals about whom Ms O’Grady was referring. However, we observed that the sheer fact of referring to a new manager could, of itself, have led to a reader of the form, with some knowledge of the Respondent’s internal structures, being able to identify that she was talking about the Claimant.[51]Ms O’Grady asked the Claimant, as her line manager, to be the confirmer of her revalidation application. He took issue with the assertions the Claimant had made about her relationship with him, but also took issue with regard to the contravention of the NMC Guidelines that individuals should not be identifiable. The Claimant refused to confirm Ms O’Grady’s revalidation application unless she made changes to her reflective account. It appeared that, rather than do that, Ms O’Grady went to another Registered Nurse, a more junior nurse in the Unit, and asked them to act as the confirmer.[52]Whilst no direct evidence was put before us on the point, it appeared that that confirmer made reference to the issues Ms O’Grady had raised about the Claimant to at least one other colleague, as the Claimant became aware that other members of staff knew that Ms O’Grady had raised concerns about him as part of her reflective account. The Claimant’s “concern”[53]As a result of this, on 14 September 2022, the Claimant sent an email to Claire Gilmartin, then the HR Business Partner with responsibility for the Respondent’s business, and Ms Webber. The email was headed “Concern”.[54]In the email, the Claimant noted that evidence in support of a revalidation application should not be such as to enable the identification of an individual. He commented that at least one of Ms O’Grady’s reflective accounts identified him as the subject of her reflection. He commented further that some of the content of Ms O’Grady’s reflective accounts made it look like a grievance under the shadow of a reflection, had elements of false, misconstrued, and unsubstantiated allegations towards him, which were unprofessional, inappropriate and totally unnecessary, making him uncomfortable as a confirmer, and breached the obligation of confidentiality. We presumed that the last point related to the indirect identification of the Claimant.[55]The Claimant noted that he had discussed the documents with Ms O’Grady, noting that he had asked her to make some appropriate corrections in her CPD logs as required by the NMC, and to resubmit to him, but she had not come back to him. Instead, when he returned from holiday approximately a week later, it became known to him that Ms O’Grady had had the revalidation documents signed and confirmed by a junior member of staff, and that it was also known to some members of staff that Ms O’Grady’s comments included a complaint about him.[56]The Claimant, whilst acknowledging that any appropriate professional could act as confirmer, noted that he was deeply concerned about how Ms O’Grady had conducted herself, feeling that she had undermined and tainted his position as her immediate line manager. He commented that there had been a data breach relating to confidentiality, and that Ms O’Grady had been unprofessional, inappropriate and totally unnecessary, commenting that he felt the reflections had been made with malicious intent. He then went on to respond to the particular comments made by Ms O’Grady referred to at paragraphs 48 and 49 above.[57]The Claimant concluded by saying that he could speak and resolve the matter directly with Ms O’Grady, but, because of her view towards him and considering the previous challenging conversations with her, he could not promise that he would get a positive outcome. He noted that, for that reason, he was bringing the point to the attention of Ms Gilmartin and Ms Webber, requesting them to intervene such that the behaviour be stopped and Ms O’Grady “be reprimanded given due process”.[58]The Claimant, in his written witness statement and in his oral evidence, made reference on several occasions to having broader concerns about Ms O’Grady. On several occasions he referenced what he described as tardiness, insubordination and inappropriate behaviour. The content of the Claimant’s email was however, in our view, narrow, and was confined to the Claimant’s concerns regarding Ms O’Grady’s reflective account form.[59]Ms Webber replied to the Claimant within an hour, noting that she was due to speak to Ms O’Grady on 16 September 2022, but that if the Claimant had submitted his email as a formal grievance then an investigation would need to be undertaken, and she should not discuss the matter with Ms O’Grady. She asked how the Claimant wished to proceed, whether formally or by her endeavouring to mediate between the two of them. She concluded by saying that she was too close to the two individuals to undertake any formal investigation, and was also away for two weeks after 16 September 2022, such that Ms Gilmartin would need to allocate the investigation to someone else.[60]The Claimant replied to Ms Webber later that afternoon, noting that he would “like this sorted whatever way is best, informal or formal”. Ms Gilmartin, who continued to be copied into the email exchanges, replied to the Claimant on the morning of 15 September 2022, noting that the Respondent would normally try to deal with issues informally in the first instance, but that it was the Claimant’s decision. Ms Webber then emailed Ms Gilmartin later that morning, copying in the Claimant, noting that she and the Claimant had spoken the day before, and that the Claimant wished to proceed informally. She commented that she was meeting Ms O’Grady the following day as she needed to establish the root cause to all that had arisen as it could not continue. She commented that, after that, they would review the viability of mediation.[61]No written evidence of Ms Webber’s discussion with Ms O’Grady was before us, but the subsequent indication was that Ms O’Grady was prepared to proceed with mediation, but only on the basis that it would be undertaken by Ms Webber. Ms Webber, in her witness statement, noted that, during her discussion with Ms O’Grady on 16 September 2022, Ms O’Grady had commented that she felt that the Claimant had displayed lots of inappropriate behaviour towards her and that she felt singled out within the Unit. She also stated that, whilst Ms O’Grady had agreed to participate in mediation, she had told her that if mediation was not an option then her next step would be to raise a formal grievance against the Claimant. The mediation was then scheduled for 7 October 2022.[62]On 4 October 2022 however, continuing the “Concern” email chain, the Claimant emailed Ms Webber, copied to Ms Gilmartin, noting that he had contemplated mediation over the last couple of weeks and felt that “mediation is not for me at this point”. He then commented that he was requesting that the matter “be elevated as a formal action with a view to follow disciplinary hearing instead”.[63]Ms Webber replied to the Claimant a few minutes later, saying, “In this case, please be prepared to have a counter grievance submitted from the other party as they also have reported examples of “inappropriate” behaviour and statements from yourself that they wish to be investigated too. It is disappointing but I respect your decision.” The Claimant replied shortly afterwards, thanking Ms Webber for her reply, noting that he was sorry that he had disappointed her but that he would “take the courage to face and accept whatever consequences this may lead me to”.[64]At very much the same time as that email, Ms Gilmartin emailed Ms Webber and Vanessa Kyte, Ms Gilmartin’s line manager at the time, noting that if “this”, which we took to be the concern raised by the Claimant about Ms O’Grady’s revalidation comments, was a disciplinary matter, in that the Claimant believed there had been misconduct according to the Respondent’s Policies, then it should be investigated as per the Disciplinary Policy. She noted that the Respondent would not normally see managers putting in grievances against subordinates, and that if the behaviour was misconduct it should be addressed as such, noting that the Claimant’s initial email mentioned breach of confidentiality, inappropriate and unprofessional behaviour, and untrue allegations, all of which were potentially misconduct or even gross misconduct, although an investigation would need to take place to determine that.[65]Ms Gilmartin, in her email, asked a question of Ms Webber as to whether she had already spoken to Ms O’Grady in detail about the concerns, as it could be that, if they had been addressed, then it would be difficult to take the matter further. She noted that she was going to suggest that a manager not previously involved conducted an investigation into the matter, and they would then be better able to judge if there was an issue that needed to be taken further and the appropriate way of doing so.[66]Ms Webber replied to Ms Gilmartin’s email shortly afterwards, noting that the two individuals had agreed to mediation, commenting that both would only agree if she was to be the mediator as they both trusted her interactions as she knew them both well. She commented that she was annoyed with the Claimant because she believed he had escalated the issue with the actions he had taken and decisions and statements he had made. She commented that the Claimant’s focus was on the confidentiality issue which had arisen from Ms O’Grady’s revalidation reflection, and that it had in fact been another staff member, i.e. the confirmer, who had breached confidentiality by discussing the reflection with someone else. She commented that the Claimant was focusing purely on that, that it was all he wanted to talk about, and, with his decision to address the matter formally rather than by mediation, she believed the Claimant wanted punitive action against Ms O’Grady for it, rather than the confirmer who had breached the confidentiality.[67]Ms Webber went on to describe, we presumed as a record of what Ms O’Grady had discussed with her, a number of issues of concern which had arisen in relation to the Claimant’s management of Ms O’Grady, and commented that she wished “to bang their heads together, more so Ferdi as he should know better”.[68]Witness evidence put forward by the Respondent indicated that Ms Gilmartin and/or Magda Kahl, another of the Respondent’s HR Managers, had spoken to the Claimant about his desire to take his concern about Ms O’Grady forward as a disciplinary matter some time later in October, the HR position being that the issues raised were not ones which merited being taken forward on a disciplinary basis. There was however no documentary evidence to support that, and, even if such a discussion had taken place with the Claimant, it did not appear to have clearly got through to him, as, into November 2022, he continued to seek feedback from HR as to what was happening. We concluded that any such discussion that may have taken place between the Claimant and either or both Ms Gilmartin and Ms Kahl had not been of sufficient clarity to lead to the Claimant understanding that his concerns about Ms O’Grady were not to be taken forward on a disciplinary basis at that stage. Ms O’Grady’s Grievance[69]Towards the end of September 2022, Ms Kahl emailed the Claimant, noting that a performance review with Ms O’Grady was overdue. (It was confirmed during the hearing that this review is entirely separate from the NMC revalidation process, and is a purely internal process leading to the award of incremental pay subject to satisfaction of the required competencies.) The Claimant replied to Ms Kahl on 4 October 2022, noting that Ms O’Grady had requested to delay the performance review.[70]On 11 October 2022, Ms O’Grady emailed Ms Webber, enclosing a grievance letter. It appeared that this was done with a view to Ms Webber checking it, and she confirmed in her evidence that Ms O’Grady had sent it to her for checking. A version of the grievance letter with the proposed amendments was in the bundle, and it showed that relatively minor amendments were made.[71]The grievance was just over five pages long, and broadly outlined difficulties that Ms O’Grady considered she had with the Claimant as her manager, noting that the relationship had steadily declined over the previous year to the point where there was little to no communication between them. She referenced some of the comments she had made in the revalidation form, such as the Claimant saying that he had been warned about Ms O’Grady before he started in Llantrisant, and referring to Ms O’Grady as a “Power Ranger” to another member of staff.[72]Ms O’Grady then referenced five specific incidents, going back to 23 June 2022. She commented that the incidents had had a huge impact on her, that the situation was getting progressively worse, that the Claimant did not treat her with any respect, and that she felt massively undervalued. She commented that she felt that the Claimant treated her very negatively in everything he did, referencing a recent example of the submission of annual leave requests. She commented that she had tried on numerous occasions to speak to the Claimant to try to resolve matters, and noted that the Claimant had rejected the prospect of mediation. She commented that she could not see how the situation would get better, and that she did not want to be in work any more.[73]The grievance letter, whilst still being dated 9 October 2022, was then sent to Vanessa Kyte by Ms O’Grady on 12 October 2022. Ms Kyte forwarded the grievance to Ms Gilmartin on 19 October 2022, asking her to speak with another of the HR Managers to ask her to hear the grievance and carry out any relevant investigation. Ms Gilmartin then forwarded the email to the other HR Manager and to Ms Kahl, asking them both to pick the grievance up. At this time, Ms Gilmartin left the Respondent’s employment. Grievance investigation[74]Whilst there was no evidence before us as to the process by which Suzanne Loar was appointed to deal with the grievance, by the start of November 2022 she had been appointed. On 3 November 2022, Ms O’Grady sent a further document to Ms Webber, noting further recent incidents that had happened with the Claimant around annual leave and the rota, and Ms Webber told Ms O’Grady to send the document to Ms Loar ready for her meeting with her the following week.[75]That meeting then took place on 10 November 2022, with Ms Kahl also present as a notetaker. In her witness statement, which we had no reason to doubt, Ms Loar described Ms O’Grady as being very emotional throughout the meeting, and that they discussed the issues raised by Ms O’Grady in her grievance letter.[76]Ms Loar was conscious that the Claimant had completed the Passport to Leadership course, and was concerned that some of the matters raised by Ms O’Grady were not in line with the leadership behaviours taught by the course. Ms Loar recorded that the behaviours from both Ms O’Grady and the Claimant, two senior members of the Unit, were unprofessional and demoralising for the team.[77]By this stage, Laura Rawson had taken over as the HR Business Partner responsible for the Respondent’s business. The Claimant emailed her on 18 November 2022, indicating that he would like to speak to her about absences and other HR issues. It was arranged that they would meet on 23 November 2022.[78]The Claimant had emailed Ms Kyte on 9 November 2022, noting that he still had issues regarding Ms O’Grady and that he would like to know any updates or plans they had moving forward. He then sent a chaser email to Ms Kyte on 24 November 2022, and Ms Kyte then replied noting that she was aware that a meeting had been arranged with Ms Rawson.[79]On 21 November 2022, Ms Kahl notified the Claimant by telephone that he was required to attend a grievance investigation meeting the following day. This was the first the Claimant knew of the grievance brought by Ms O’Grady, the Respondent’s managers having consciously adopted the approach of not speaking to him about it prior to this stage in order to try to maintain the ongoing working relationship between the Claimant and Ms O’Grady in the meantime. The Claimant asked for sight of Ms O’Grady’s letter, and was told by Ms Kahl that he would see it the following day before the meeting. He eventually saw the grievance letter one hour before the meeting started.[80]The notes of the meeting, both the original ones taken by Ms Kahl and the version with the Claimant’s additional comments, record the Claimant as denying that certain events took place as described by Ms O’Grady. In other areas however, such as the “Power Ranger” comment, the Claimant accepted that he had made the comment, but indicated that he felt the comment had been a positive one and that he had not seen the need to apologise to Ms O’Grady for making it at the time as it had not been meant in a negative way. The Claimant did confirm that, during a discussion with staff about a patient complaint, when Ms O’Grady was not in work, he had discussed it in such a way that made it clear that it was Ms O’Grady who had been the subject of the complaint.[81]One of the specific elements raised by Ms O’Grady in her grievance was an incident which had occurred on 22 September 2022, involving one of the dialysis support workers and the completion of a temperature log. At this stage staff were taking their temperatures on arrival and recording them on a sheet. It was reported to the Claimant that the support worker had recorded not only her temperature but had recorded Ms O’Grady’s temperature at a point when she had not arrived. Ms O’Grady’s name was then recorded again a couple of lines later. Our examination of the temperature log suggested that the initial entries of the support worker and Ms O’Grady’s temperatures were done by the same person.[82]The particular concern raised by Ms O’Grady related to the Claimant’s subsequent discussion with the support worker, who reported to her in an upset manner that the Claimant had accused her of fraud, and had told her that the matter could go to court. Ms O’Grady indicated in her grievance letter that she and the support worker had gone to see the Claimant who had repeated that the matter amounted to fraud.[83]In relation to that, Ms Loar and Ms Kahl subsequently met with the support worker on 6 December 2022 to discuss the incident. The support worker broadly supported Ms O’Grady’s version of events and confirmed that she had been very upset by the Claimant’s accusations. In the meeting, the support worker noted that she had met with Ms Webber after the incident, who had reassured her that the issue was not one of fraud and that everything was fine.[84]Another specific incident raised by Ms O’Grady in her grievance had been a criticism the Claimant had made of her regarding the failure to record a diagram of a patient’s graft in his notes, which Ms O’Grady contended had happened. In her grievance letter, Ms O’Grady confirmed that another dialysis support worker had been involved and had supported her version, and Ms Loar then met that support worker on 9 December 2022. The support worker confirmed Ms O’Grady’s version of events.[85]At the end of that meeting Ms Loar asked if there had been any other incidents or inappropriate behaviour from Ms O’Grady or the Claimant. The support worker replied, saying that there had been nothing in relation to Ms O’Grady, but stated that she felt the Claimant had behaved inappropriately during her interview for her role. That had been in September 2022, at a time when the support worker had been working as a bank worker and had asked the Claimant if she could apply for the permanent position. She stated that the Claimant had said “Yes, but come best dressed tomorrow. I want to see you in a full gown”. The support worker also stated that when she attended for the interview wearing a dress, the Claimant had said, “Mmm you look good” and, “I could take a photo of you”, imitating taking photographs of her with his hands.[86]Following the completion of her investigation interviews, Ms Loar completed her grievance investigation report on 15 December 2022. In this, she separated Ms O’Grady’s concerns into eleven separate allegations, adding in the subsequent complaint about annual leave allocation to the five specified in the initial grievance letter, and taking into account some of the more general allegations that Ms O’Grady had raised in her letters, for example that the Claimant had preconceived ideas about her and did not like her. Of those eleven concerns, Ms Loar concluded that she believed that six should be upheld and that five should not.[87]She concluded that there had been multiple situations between the Claimant and staff members which had been poorly managed, that there had been no appropriate use of the Respondent’s “no blame culture”, with staff members feeling scared to make mistakes in case they were publicly shamed for it. She also noted that patients and staff had complained about the high level of tension within the Unit, particularly between the Claimant and Ms O’Grady, that there was very little self-awareness from the Claimant on the impact of his behaviour and his management style on the team, and that throughout the interview he had appeared unwilling to accept the situations from other people’s perspectives, stating that the team needed to adapt to him.[88]Ms Loar also noted that Ms O’Grady required further support and development, as her behaviour had also had a large impact on the rest of the team, often in a negative or divisive way, which had resulted in conflicts with other members of staff.[89]Ms Loar also recorded one witness having described an interaction with the Claimant where she had felt reprimanded by him, but had then been told by him to hug him before she went back to work, which she stated had made her feel very uncomfortable, and she also referenced the issue raised by the second support worker regarding her interview. She also recorded that when Ms Kahl had rung the Claimant to arrange the interview he had called her a different name by mistake and, when Ms Kahl corrected him, he had apologised saying, “Sorry, you’re both really attractive so not really a mistake”. She noted that Ms Kahl had found that a very inappropriate thing to say when trying to arrange a professional interview.[90]Ms Loar concluded by recording her recommendations. One was that formal action, which we presumed to have been a recommendation for formal disciplinary action, was required in respect of the current grievances. The other was that further investigation was needed in relation to the sexual harassment claims, which we took to be references to the second support worker’s concerns around the interview and the Claimant’s actions in hugging an employee and referring to Ms Kahl as being “really attractive”, which would be handled separately by HR. Separate internal incident[91]In the meantime, an incident had arisen in relation to the way Ms O’Grady had responded to a request for information about a patient by the police. The background to that was that an individual was found asleep in his car in a layby, and the police had been called to attend. When they did so, the individual confirmed that he had been sleeping because of his dialysis. The police, in the presence of the patient, then called the Unit, and spoke to Ms O’Grady. She replied that being tired and sleeping would not be a direct consequence of dialysis, but stated that there may be other medical causes such as sleep apnoea. A complaint had been made by the patient about what was contended to have been a disclosure of confidential information.[92]The Claimant brought the incident to Ms Webber’s attention the following day, but she replied to him noting that Ms O’Grady had discussed it with her the day before in any event. She confirmed also that she had discussed it with the Consultant in charge of the Unit, who had confirmed that his response would have been the same as Ms O’Grady’s. She noted to the Claimant that the investigation was “thus complete”, but had not involved him in that investigation at all. The Claimant’s meeting with Ms Rawson[93]As we have noted above, the Claimant also met with Ms Rawson in late November 2022. They initially met on 23 November 2022 and discussed sickness absences within the Llantrisant Unit. At the end of the meeting, the Claimant indicated he wanted to discuss his ongoing issues relating to Ms O’Grady but there was insufficient time to do that then. The meeting then continued on the following day.[94]The substance of that discussion was the area where there was the starkest difference of view in terms of the evidence relating to what happened. In advance of the discussion, the Claimant had sent Ms Rawson the “Concern” email chain that had arisen in September and October 2022. He then indicated that Ms Rawson had described his wish to deal with his concerns about Ms O’Grady on a disciplinary basis as having been “malicious, nonfactual and without merit”, and as having not been brought in a timely manner. Very brief notes made by the Claimant at the time were in the bundle and they encompass only 18 words in total, some of which were, “Not factual”, “Not B Braun policy”, “malicious” which was noted twice, and “not in a timely manner”.[95]Ms Rawson’s evidence was however that, whilst those words had been mentioned in the discussion, they were taken completely out of context.[96]On balance, we preferred Ms Rawson’s version of events, as it was supported by the content of an email that she had sent to the Claimant the day after the meeting, 25 November 2022. In that email, which Ms Rawson sent as a reply to the Claimant’s forwarding of the “Concern” email chain, Ms Rawson opened by saying, “As discussed my advice and recommendations would be that this case should not be referred to a Disciplinary Hearing”. She then confirmed that the incident had originally occurred in August 2022, which was three months earlier, and that the Respondent’s Disciplinary Policy indicates that an investigation into an allegation should be dealt with in a timely manner. She also noted that she understood that it had been intended to deal with matters through mediation, but that the Claimant had then advised that he wanted the matter to be dealt with formally. She noted that she understood that the Claimant had had a conversation with Ms Kyte about the disciplinary, and had been given similar advice about the matter not having enough merit to go to a formal disciplinary process.[97]Ms Rawson then noted that the Claimant had recently been informed about Ms O’Grady’s grievance, and that the timing of his request, i.e. during the meeting that they had had on 24 November 2022, to pursue disciplinary matters against Ms O’Grady could be perceived as victimisation for her raising the grievance. She commented that no employee should suffer a detriment for raising a grievance, and that the timing and nature of the Claimant bringing up the disciplinary allegation again could seem like he had done that in response to the grievance allegations.[98]Ms Rawson then went on to say that the Claimant’s allegation about breach of confidentiality had arisen from Ms O’Grady’s revalidation documentation, but that she could not see that Ms O’Grady had used the Claimant’s name, and that the comments she had raised were not factual ones but were her thoughts and feelings about her reflection over her previous three years in her role as a nurse. She commented that, having read through the revalidation process documentation on the NMC website, she did not see that a breach of the process had occurred. She concluded by saying that if the Claimant still felt that he had not been heard then he had the same rights as all employees to submit a formal grievance, and she attached the Policy for him to read through.[99]The Claimant responded to Ms Rawson just over a week later, on 7 December 2022, taking issue with what she had said. He concluded by saying that he would not raise a grievance against Ms O’Grady, as he would still see the matter as a disciplinary matter addressing an employee’s conduct. He commented that he hoped that the rest of his team could still see that there was hope and fairness when their concerns were being brought forward and that he would now focus on rebuilding his team. Disciplinary investigation[100]Following the completion of Ms Loar’s grievance investigation report, Ms Webber was appointed to investigate the outstanding disciplinary matters.[101]Ms Webber met with the Claimant, together with Ms Rawson, on 19 December 2022. No advance warning was given to the Claimant of the investigative meeting. The Claimant asked if he could have a union representative present at the meeting but was told by Ms Rawson that the meeting was only an investigative one, and he was not therefore entitled to representation at that stage.[102]It was noted that, as part of the grievance investigation, witnesses had been spoken to, and some additional allegations had been raised, which needed to be investigated as part of the disciplinary procedure. Ms Webber then raised the telephone conversation between the Claimant and Ms Kahl on 21 November 2022. He commented that he could not remember making the alleged comment, but stated that, maybe he did, meaning it only as a compliment.[103]With regard to the interview with the dialysis support worker, the Claimant indicated he could not remember telling the worker to come “best dressed tomorrow”, and that he wanted to see her in a “full gown”. He also said that he may have said something to her about what she was wearing on the day of the interview, but had not meant to offend her. When asked if he had said on the morning of the interview, “Mmm you look good”, and, “I could take a photo of you”, and had then imitated taking photos of the support worker with his hands, he replied that he had, and that he had made a comment because she was dressed up. He commented that his intention had been to give a compliment and not to offend.[104]The Claimant was then asked if he had ever told a member of his team to hug him, and he said that he remembered hugging the second dialysis support worker when she had told him about her PIN, which we understood to be the confirmation of her NMC registration. He commented that that was out of excitement and to congratulate her, and he had not meant anything sexual or harassing.[105]When asked if he felt it was appropriate to hug team members, the Claimant commented that, on reflection, he could see that it could be inappropriate, but his intention had not been to offend or take advantage. When asked if there was anything he would have done differently, he commented that, if there was a consequence, he would have to reflect and would have to be careful next time.[106]Following a short adjournment, the meeting resumed, with Ms Webber indicating that, following on from the allegations and having listened to the Claimant’s version of events, it had been decided to suspend the Claimant from work with immediate effect pending further investigation. It was confirmed that the suspension would be on full pay and would not constitute a disciplinary sanction. The Claimant was told that he needed to remain available to be contacted, but that he should not attend the workplace or make contact with his work colleagues.[107]Ms Webber then confirmed the suspension by letter of the same date. She opened the letter by saying that, as discussed, she was writing “to confirm your immediate suspension from work following the recent investigation into serious allegations of inappropriate behaviour with female colleagues which could be deemed as harassment and inappropriate behaviour which could be deemed as bullying.” We interpreted that as focussing on the disciplinary allegations which had arisen from comments made by witnesses during the grievance investigation process, i.e. the issues involving Miss Kahl and the dialysis support workers.[108]However, Ms Webber then specified five specific allegations of potential gross misconduct. These were: “1. Allegations of inappropriate comments and actions made to female colleagues, specifically commenting on their appearance, which made the employee’s [sic] feel uncomfortable. 2. Allegations of making comments that are deemed to be unprofessional and derogatory towards members of your team which has led to employees feeling upset. 3. Allegations of raising your voice in an aggressive manner towards members of your team which has caused them to feel upset and worried. 4. Allegation of discussing negative patient feedback in a team meeting with the intention of highlighting a perceived weakness to cause embarrassment to the person you believe the complaint was about. 5. Allegation of not carrying out performance conversations with a member of your team which resulted in her incremental pay being withheld since September 2022.”[109]With regard to the last allegation, Ms Kahl had emailed Ms Webber on 8 December 2022, noting that Ms O’Grady had been waiting for her anniversary increment since September. She commented that the Claimant had put it on hold and had said that he would not have a performance review with Ms O’Grady until the grievance was resolved. Ms Kahl then asked Ms Webber to confirm that the required skills, behaviours and attitudes, as outlined in the Respondent’s core competencies, had all been met by Ms O’Grady, in order to honour the anniversary increment and process it in December’s pay. She noted that the payroll cut-off for that was the following day, 9 December 2022.[110]Ms Webber had then replied, on 8 December 2022, noting that she was not aware that the Claimant had done that, i.e. had put the review on hold, and that he should have brought it to her attention so that she could have coordinated an appropriate review. She then confirmed that, from her knowledge of Ms O’Grady, she could confirm that she met the job role requirements. We observed however that Ms Kahl had been aware, from an email from the Claimant in early October 2022, that the Claimant had told her that Ms O’Grady had wanted to put the appraisal on hold.[111]The suspension letter was prepared by Ms Rawson in the late afternoon of 19 December 2022, and was sent to Ms Webber for approval. She replied later that evening noting that “this”, which we took to be the disciplinary allegations that she had been appointed to investigate was “now being combined with the Chloe complaint too”, which we took to be the matters arising from Ms O’Grady’s grievance which were to be taken forward as disciplinary matters. Ms Webber replied that the points from that day, i.e. that she had discussed with the Claimant, were correct, and that she assumed that the others were factual ones from Ms O’Grady’s complaint.[112]In summary, it appeared to us that the disciplinary allegations to be addressed with the Claimant dealt with the following underlying matters: 1. The comments made to Ms Kahl and the dialysis support worker. 2. The comments made about Ms O’Grady by the Claimant, e.g. the “Power Ranger” comment. 3. The allegation of fraud in relation to the first dialysis support worker. 4. The discussion of patient feedback in the absence of Ms O’Grady in circumstances which indicated that Ms O’Grady had been at fault. 5. The lack of a performance review discussion with Ms O’Grady.[113]Broadly, the second, third and fourth of those were matters which had arisen from Ms O’Grady’s grievance, whereas the first and fifth had arisen separately. The Claimant’s sickness absence and sick pay[114]The Claimant had a scheduled operation on 28 December 2022, and was signed off as unfit for work following that for the next six weeks or so. It was left that he would contact the Respondent when he felt in a position to take things forward.[115]The Claimant submitted further Fit Notes into 2023 in relation to his absence following his operation. That led Ms Rawson to make a referral of the Claimant to Aviva in relation to the Respondent’s Permanent Health Insurance Policy. Ms Rawson made that referral following a period of six weeks absence, but it transpired that a claimant under the Policy needed to be absent for 26 weeks before the insurance paid for a proportion of their salary, and therefore the referral went no further.[116]Although the Claimant was still certified as unfit for work, on 6 February 2023 he emailed Ms Webber, noting that he was willing to attend the proposed disciplinary hearing. Ms Webber replied on the same day, asking the Claimant to confirm that he definitely wished to proceed with the disciplinary hearing, as he had commented in an email the week before that he had been struggling.[117]The Claimant then replied, the following, day confirming that he would like to progress with the disciplinary hearing. He also raised queries as to when the disciplinary investigation had been concluded, and what the next steps were. He queried whether there had been any interruption to his suspension, and whether his absence was being treated as sickness and not suspension.[118]Ms Webber replied, on 10 February 2023, noting that the investigation had been concluded on 22 December 2022, and that the next step would be to arrange the disciplinary hearing, which had been on hold whilst the Claimant recovered from his surgery. She confirmed that a date would be set up without undue delay, and that the investigation pack and the disciplinary invite letter would follow shortly. Ms Webber also confirmed that the Claimant’s absence was now being treated as sickness, and that his suspension had been put on hold, albeit that the terms of the suspension were still in force.[119]The Claimant submitted a further Fit Note on 16 February 2023, and Ms Webber emailed him later that day noting that, although he had submitted a further Fit Note, in line with his earlier request, the disciplinary hearing would take place on 3 March 2023. She confirmed that an invitation letter and pack would be posted to the Claimant at home. Arranging the disciplinary hearing[120]That invitation letter was then sent to the Claimant on 20 February 2023. It was sent by Judith Beechey, and she confirmed that the Claimant was required to attend a disciplinary hearing on 3 March 2023. She confirmed that she would chair the hearing, and that Ms Rawson would also be present. She confirmed that the purpose of the hearing would be to discuss the Claimant’s alleged misconduct and set out the five allegations that had been specified in the earlier suspension letter. Also enclosed with the letter was Ms Webber’s disciplinary investigation report and the documents listed in the appendix to that report, together with a copy of the Respondent’s Disciplinary Policy and Procedure. The Claimant was advised of his right to be accompanied at the hearing by a work colleague or trade union official. The letter also noted that, depending on the facts established at the hearing, the outcome could be any disciplinary sanction up to and including dismissal.[121]The Claimant emailed Ms Rawson, on 23 February 2023, to confirm his attendance on 3 March 2023, noting that his trade union representative, Paul Gage, would also be in attendance. The Claimant also asked for his suspension to be lifted, or at least for him to be allowed to contact work colleagues and to use his work mobile and laptop to access files and emails in preparation for the hearing; that the hearing take place at a neutral venue; for a copy of the Respondent’s Employee Handbook; and for a copy of Ms O’Grady’s grievance on which he had written notes during the meeting in November 2022.[122]Ms Rawson replied the following day, noting that the suspension would not be lifted, although at present the Claimant was absent from work on sick leave, but still expected to comply with the suspension rules, including not to make contact with colleagues. She noted that if the Claimant wished to obtain anything to use as preparation for the hearing he should let Ms Rawson know, and she would assess whether he would be entitled to have the documentation and would send it across. She confirmed that she would arrange to hold the hearing in an off-site venue, and that the Respondent did not have an Employee Handbook currently in use, enquiring as to whether the Claimant wanted something specific which she could then look to send over. She also attached Ms O’Grady’s grievance letter, commenting that she thought Ms Kahl still had the copy with the Claimant’s notes on it, and she would check with her when she was next in work the following week.[123]The Claimant emailed Ms Rawson again, on 27 February 2023, noting that he had some documentation on his laptop, and wanted to check it and various emails in preparation for the hearing. Ms Rawson replied later that day, confirming that the Claimant could log on to his work laptop for the purpose of accessing the documentation he had requested, with all other suspension rules staying in place. She also enclosed the notes the Claimant had made on Ms O’Grady’s grievance letter. Ms Rawson then confirmed, on 2 March 2023, that she had booked a room at a local hotel for the disciplinary hearing. The Disciplinary Hearing[124]The disciplinary hearing took place on 3 March 2023 as scheduled, with those anticipated to be present being there. Mr Gage indicated that he had concerns about the grievance and disciplinary processes being merged, and that several witnesses named had not been interviewed. Mr Gage made his point about witnesses not having been interviewed on several occasions throughout the hearing.[125]Ms Beechey went through each of the allegations with the Claimant, and he responded to them. At the conclusion of the meeting, Mr Gage again referred to witnesses having been named but not interviewed, and noted the names of five individuals, including Ms Webber.[126]Following the meeting, Ms Beechey considered it appropriate to interview Ms Webber and another of the Unit nurses. She met and interviewed the nurse on 22 March 2023, and Ms Webber on 23 March 2023.[127]Following those meetings, Ms Rawson emailed the Claimant and Mr Gage on 23 March 2023, noting that Ms Beechey was unavailable the following week, and that she was unavailable the week after, and therefore that they had provisionally arranged 13 April 2023 as the date to deliver the disciplinary outcome. Mr Gage replied, noting that he was on leave on 13 April, and discussions then took place about rearranging the meeting later in April. In the event, it could not be rearranged until 3 May 2023. Further discussions about pay[128]In the meantime, at the end of March 2023, the Claimant emailed Ms Rawson, noting that he had not received his correct pay for that month. Ms Rawson replied, noting that that was due to the Claimant’s sick pay running out from 15 March 2023, commenting that, as the Claimant had been submitting Fit Notes, then his absence had been recorded as due to sickness and not due to suspension. She commented that if the Claimant would like the Respondent to start recording the absence as suspension he should confirm that in an email, and then they could backdate any payments to the Claimant that he had not received. The Claimant initially replied by commenting that he was confused as to when his absences started being recorded as sickness and not suspension, as he had not been informed of any changes until he had raised an enquiry on 3 February 2023.[129]Further emails were exchanged between the Claimant and Ms Rawson in late March 2023, with the Claimant raising queries over the calculation of his sick pay entitlement. Ms Rawson emailed the Claimant on 29 March 2023, providing clarification of the sick pay calculation, and repeating her comment that if the Claimant would like his absence to be changed from sickness to suspension then they could do that and backdate any pay the Claimant had not received in March. She noted however, that she needed the Claimant to confirm that, as she could not overturn a live Fit Note without confirmation.[130]However, on 13 April 2023, without any further response from the Claimant, Ms Rawson emailed him to note that, as the April pay date was approaching, a decision had been made to change the Claimant’s sick leave to suspension leave, and to reimburse any pay not received in March 2023 in April 2023. In that month, the Claimant then received his normal pay for April together with an adjustment for the underpayment in March. Completion of the disciplinary hearing[131]Returning to the disciplinary process, Ms Rawson provided the Claimant and Mr Gage with copies of the minutes of the 3 March 2023 hearing, and notes of the interviews with the Unit nurse and Ms Webber, in an email on 31 March 2023. The reconvened hearing then took place on 3 May 2023.[132]In that, a further discussion took place about the allegations and the comments made by the Unit nurse and Ms Webber in the interviews with them. Ms Beechey asked the Claimant and Mr Gage to provide her with names of anybody they felt they would like her to speak to, confirming that, if she and Ms Rawson felt they were relevant, then they would speak to them. Ms Beechey also asked the Claimant to provide any additional evidence he wished to provide, prior to a follow up meeting to conclude the process, which was set for 24 May 2023. Ms Rawson asked that the names of any individuals the Claimant and Mr Gage suggested should be spoken to, and any additional evidence they wished to produce, should be provided by 5 May 2023, in order to get everything completed in time for 24 May 2023.[133]Ms Rawson then sent an email to the Claimant and Mr Gage, late on 3 May 2023, confirming the arrangements for 24 May 2023, and noting that the Claimant had agreed to send additional evidence, and the names of additional witnesses he would like Ms Beechey to consider, by 5 May 2023.[134]The Claimant responded on 5 May 2023, noting that he had been asked to provide names of additional witnesses and that the position of Ms Beechey and Ms Rawson had been that they would then assess the relevance of any such witnesses. He commented that, with those conditions, he was “giving back this decision” to Ms Rawson as he believed that it was not for him to decide whom to interview, it was the responsibility of the Disciplinary Panel to conduct a fair, proper and full investigation. He also asked for an extension of time for the submission of further evidence as he needed to discuss matters with Mr Gage.[135]Ms Rawson replied, noting that the Claimant had been given the opportunity to provide names of possible additional witnesses as he had felt that the investigation had been biased. She confirmed that Ms Beechey had decided that, from her perspective as the Disciplinary Hearing Manager, there were no further witnesses she wished to speak to. She confirmed that the deadline for submission of further evidence could be put back to 9 May 2023.[136]The Claimant then sent some documents to Ms Rawson on 9 May 2023. Ms Rawson replied the following day to acknowledge them, and she noted that, as no names of additional witnesses had been produced, then she and Ms Beechey would assume that the Claimant did not want to put forward any additional names. The Claimant then emailed Ms Rawson on 12 May 2023 referring her to his email of 5 May 2023.[137]As the Claimant had raised concerns over Ms O’Grady’s reflective accounts form, Ms Beechey met with Jane Tyler, the Respondent’s Quality and Development Manager, to discuss the reflective account and the Claimant’s concerns that he was identifiable from it.[138]The meeting scheduled for 24 May 2023 then took place as planned, with Ms Beechey, Ms Rawson, the Claimant and Mr Gage present. The meeting opened with the Claimant and Mr Gage being given an opportunity to comment on the notes of Ms Beechey’s interview with Ms Tyler. Mr Gage then summed up the Claimant’s case on his behalf, and the Claimant himself made some closing submissions. The disciplinary outcome[139]The meeting was then adjourned and reconvened. Ms Beechey then provided her response to the allegations, which was that allegations 1 – 4, as noted at paragraph 108 above, were made out, but that allegation 5 was not, and that that allegation had been discounted from the formal outcome.[140]Ms Beechey noted that she had taken into account the Claimant’s mitigation regarding the revalidation process, commenting that, at the time that Ms O’Grady provided the reflective account to the Claimant, confidentiality had not been breached as Ms O’Grady was sharing the experiences with the person they were about, i.e. the Claimant. She noted that the comments would have remained personal to the two of them at that stage. She also noted that the reflection form was a tool for personal reflection and therefore that it had been inappropriate for the Claimant to ask Ms O’Grady to change the document. Ms Beechey confirmed that she did believe that confidentiality had been compromised when Ms O’Grady asked another employee to sign the re-validation form as the confirmer, but that she had had limited options in terms of how to proceed at that time.[141]Ms Beechey confirmed that she felt that the Claimant had received adequate support from the Respondent, and from his line manager, Ms Webber, and that he had attended the Passport to Leadership course which taught the fundamentals of being a manager at the Respondent.[142]In terms of sanction, Ms Beechey decided that the Claimant should be issued with a final written warning which would be live for a period of twelve months. She also confirmed that the Claimant would be put onto a formal performance improvement plan which would be regularly monitored by management and HR over a six-month period. The Claimant would also be expected to re-sit the Passport to Leadership course.[143]Ms Beechey noted that, further to the improvement plan, it would be expected that there would be a significant improvement in the Claimant’s working relationship, and she proposed that external mediation should be set up for the Claimant and Ms O’Grady, as she felt that there had been a significant breakdown in their relationship.[144]Ms Beechey confirmed that the Claimant’s suspension was now at an end, and that she would arrange for the Claimant to return to his role as Unit Manager in Llantrisant. She concluded her letter by noting that the Claimant had the right to appeal against the decision. The Claimant did not at any stage submit an appeal. “Protected conversation”[145]Immediately following the provision of the disciplinary outcome, Ms Rawson asked to see the Claimant, either alone or with Mr Gage present. The purpose of that meeting was for Ms Rawson to have a “protected conversation” with the Claimant, putting forward the possibility, if the Claimant preferred, of the Claimant and the Respondent parting company, subject to the payment of a compensatory sum and the entering into of a settlement agreement.[146]The meeting ultimately took place between the Claimant and Ms Rawson alone. Ms Rawson had prepared a script for discussion which she read out to the Claimant. In that she noted that there was a lot of work for the Claimant to do to make significant changes to his management style, and that there may be apprehension on his part about going back to the Unit after having been away for many months. She indicated therefore that she wished to give the Claimant an option which he may not have considered, which was around parting company amicably on an agreed basis, subject to the entering into of a settlement agreement.[147]Ms Rawson confirmed that that was completely optional, and that the Respondent was fully prepared to welcome the Claimant back into the team as Unit Manager if that was his preference. The financial proposal was that the Claimant would be paid in lieu of his twelve weeks’ notice, and would be paid an additional sum of two months’ pay. Ms Rawson confirmed that the Claimant had ten days to consider the offer, and that the Respondent would pay for the required legal advice for entering into a settlement agreement.[148]Prior to putting forward the possibility of a settlement agreement, Ms Rawson had discussed it with the Head of the Renal Unit, who needed to authorise any payments, and with the Respondent’s HR Director. She had not however discussed it with the Claimant’s managers, nor had she discussed it with Ms Beechey. She was however aware, prior to the meeting, that Ms Beechey did not propose to dismiss the Claimant.[149]Some discussions took place between the Claimant’s solicitor and Ms Rawson over subsequent days, but no agreement could be reached. The Claimant then wrote to the Respondent’s Managing Director on 5 June 2023, confirming his resignation with immediate effect. He noted that his resignation was in response to a repudiatory breach of contract, and that he therefore considered himself to have been constructively dismissed. He noted that he had been ignored and unsupported when he requested a formal hearing in relation to Ms O’Grady’s unreasonable and inappropriate conduct at work. He also referred to feeling that he had been discriminated against on the ground of his race, focusing on Ms O’Grady being highly favoured and protected.[150]The Claimant concluded by noting that the cumulative acts of the Respondent, without reasonable and proper cause, was conduct which was calculated to destroy or seriously damage the relationship of confidence and trust, the most recent act of the final written warning being the “last straw”, which made it untenable for the Claimant to continue and left him with no option but to resign in response to the Respondent’s breach.
Conclusions
[151]Taking into account our findings and the applicable legal principles, our conclusions in relation to the issues we had to determine are as set our below. We addressed the matters set out in the List of Issues in turn. Time Limits[152]The issue of time limits only arose in relation to the Claimant’s discrimination complaint, as the date of termination of the Claimant’s employment, i.e. 6 June 2023, fell clearly within time.[153]With regard to the discrimination complaint, the way the Claimant advanced his complaint changed at the start of the hearing, by the addition of the pursuit of without prejudice discussions with him. The date of that was however the same date as the date of the imposition of the final written warning, 24 May 2023, and that date also fell within time, taking into account the date on which the Claim Form was submitted and the time spent on ACAS early conciliation. There was therefore conduct at the end of a period which fell within time, and the question for us to address was whether the earlier matters, matters prior to 2 May 2023, which were potentially out of time, should be considered as part of a course of conduct extending over a period culminating with the final written warning and proposed settlement discussions.[154]We noted the guidance of the EAT in King, that reliance is not to be placed on “some floating or overarching discriminatory state of affairs without that state of affairs being anchored by specific acts”. In this case, we noted that all the Claimant’s concerns, which made up both his constructive unfair dismissal complaint and his direct race discrimination complaint, arose from what he perceived to be unfair treatment arising from September and October 2022, when the concerns he raised about Ms O’Grady were not progressed, whereas concerns that she had raised about him were addressed.[155]Those concerns, supplemented by other concerns, were ultimately taken forward through a disciplinary process in the first half of 2023, and culminated in the final written warning on 24 May 2023. In our view, without looking at the substance of the allegations and whether they did amount to aspects of direct race discrimination, those events were anchored by specific acts, or we should say at this stage of our judgment, specific allegations, of discrimination, occurring from September and October 2022 through to May[156]We were satisfied therefore that the allegations involved conduct extending over that period, which was then, applying Section 123(3)(a) of the Equality Act 2010, to be treated as having been done at the end of the period, i.e. in May 2023. Consequently, we were satisfied that the Claimant’s complaint of direct race discrimination had been brought in time, and did not need to address the possible just and equitable extension of time. Constructive Unfair Dismissal[157]The Claimant raised 47 separate allegations of acts or omissions which contributed to a breach of the implied term of mutual trust and confidence, which he contended amounted to a constructive unfair dismissal. We approached matters from the perspective of assessing whether the allegations occurred in fact, and then of assessing whether, if so, any of those acts could be considered to have amounted to, or contributed to, such a breach. We used the numbering of the allegations in the List of Issues for ease of reference. The Claimant’s specific allegations 1. On 16 September 2022, DW was appointed to do the mediation when she was too close to COG;[158]As a matter of fact, Ms Webber was appointed to do the proposed mediation. That was on the basis that both the Claimant and Ms O’Grady were satisfied that Ms Webber was the appropriate person to undertake it, having worked closely with both of them. It was clear however that Ms O’Grady was more confirmed in her view of that, having noted that she felt that Ms Webber was the only person capable of undertaking the mediation.[159]We were of the view that probably the better approach in undertaking the mediation would have been to have brought in someone entirely uninvolved with the prior events. We felt that that would have helped resolve the clear difficulties that existed between the Claimant and Ms O’Grady at the time with the benefit of “a fresh pair of eyes”. However, in circumstances where the Claimant was content that Ms Webber act as the mediator, and even when he withdrew from the proposed mediation he made no reference to any concern about Ms Webber’s role, we did not consider that this act could be said to contribute towards any breach. 2. On 4 October 2022 when the Claimant withdrew from mediation and requested instead a formal disciplinary hearing be convened against COG, DW threatened the Claimant to prepared for a counter grievance being lodged against him;[160]We were not satisfied that Ms Webber “threatened” the Claimant to be prepared for a counter grievance being lodged against him by Ms O’Grady. Ms Webber did alert the Claimant to the fact that that step was likely to happen, as Ms O’Grady had made clear to her, when it became known that the proposed mediation would not go ahead, that she intended to issue a grievance about the Claimant. In our view, Ms Webber simply brought that anticipated step to the Claimant’s attention and it did not involve any form of “threat”. 3. There was never a response to the Claimant’s request for a formal disciplinary hearing against COG;[161]There appeared to be several informal discussions with the Claimant in which indications were given that his concerns regarding Ms O’Grady’s completion of the reflective validation form did not amount to misconduct which would merit disciplinary action. Ms Webber had a conversation with him at the time he raised his concern, and there were references to exchanges that either Ms Kyte or Ms Kahl had with him about that in October 2022.[162]Whilst other of the Respondent’s managers, notably Ms Rawson, proceeded on the basis that such a discussion or discussions had taken place with the Claimant, there was no documentary evidence to confirm it, nor could Ms Kyte recall the content of any discussion with the Claimant when she gave evidence before us. Whilst it appeared that some discussions had taken place in October and/or November about the issue, we did not consider that any clear discussion with the Claimant in relation to the raising of disciplinary action against the Claimant took place until 24 November 2022. It was clear to us however that such a discussion did then take place between Ms Rawson and the Claimant, as she referred to the discussion, and to her advice and recommendations that the case should not be referred to a disciplinary hearing, having taken place on that day in a contemporaneous email.[163]We observed here that we considered that the Claimant was less than clear in relation to what he was seeking to be pursued with Ms O’Grady on a disciplinary basis. In his oral evidence before us the Claimant indicated that he intended disciplinary action to cover Ms O’Grady’s conduct broadly, referencing, on several occasions, issues of concern regarding tardiness, insubordination and inappropriate behaviour. However, those broader matters were not raised at any time by the Claimant as part of his concerns raised about Ms O’Grady from September 2022 onwards. His “Concern” email of 14 September 2022 focused on Ms O’Grady’s completion of her reflective account. Ms Gilmartin’s comment, in her internal email on 4 October 2022, regarding the prospect of a disciplinary investigation was then focused on the concerns raised by the Claimant, i.e. concerns around Ms O’Grady’s completion of her reflective account.[164]It seemed to us that the Claimant may, in his own mind, have been expecting more from the Respondent about addressing Ms O’Grady’s actions. However, the Respondent was clearly focused on the issues of concern raised about Ms O’Grady’s reflective account. Certainly, by the end of November 2022, the Respondent had responded to the Claimant’s request for a disciplinary investigation into those matters of concern.[165]Whilst some six weeks elapsed between the Claimant’s request for formal disciplinary action on 4 October 2022 and Ms Rawson’s clear advice that such action should not take place, we were not satisfied that any such delay contributed to a breach of the duty of trust and confidence. 4. On 12 October 2022 VK told the Claimant that she would speak to DW (following the Claimant explaining his concerns about COG) but VK then did not get back to the Claimant, including after the Claimant chased VK on 9 November 2022;[166]As a matter of fact, Ms Kyte did not get back to the Claimant following their discussion on 12 October 2022, notwithstanding a chaser email that the Claimant sent on 9 November 2022. Ms Kyte did however pass the Claimant’s email on to Ms Kahl, and she was aware that the Claimant was due to meet Ms Rawson on 25 November 2022. We considered that a delay in formally replying to the Claimant was not ideal at this stage, but again did not consider that the delay was of such a magnitude as to contribute to an overall breach of the implied term. 5. On 21 November 2022 MK told the Claimant he was required to attend a grievance meeting at short notice on 22 November 2022;[167]As a matter of fact, the Claimant was indeed called on 21 November 2022 and asked to attend a grievance meeting the following day. This was a short period, but there was no indication on the Claimant’s part that he sought further notice. In any event, the Respondent appeared to proceed on the basis that they would want to put the concerns to him at the meeting, and not in advance, in which case the provision of a day’s notice would not be unreasonable.[168]With regard to the events on 22 November themselves, the Respondent had built in an hour into the process for the Claimant to read the grievance letter before the grievance investigation meeting took place. That could certainly have been longer, but we were satisfied that, had the Claimant requested further time, it would have been given to him. 6. On 21 November 2022 it was not explained if the 22 November was a grievance investigation meeting or a grievance hearing, the Claimant thought he was going to a grievance hearing;[169]We were satisfied that the meeting on 22 November was clearly an investigation meeting to consider the issues of concern raised by Ms O’Grady, notwithstanding that the Claimant would only have appreciated that on 22 November itself. 7. The Claimant was not given the opportunity for trade union representation on 22 November 2022;[170]As a matter of fact, the Claimant was not given the opportunity for trade union representation during the meeting on 22 November 2022. The Claimant did not however ask to be accompanied by a trade union representative at the meeting, and, in any event, as it was only an investigatory meeting, would have had no statutory entitlement to representation. Again therefore, we did not consider that this contributed to a breach of the implied term. 8. COG’s grievance was acted on quickly and the grievance was heard before any disciplinary hearing against COG, despite the Claimant having requested it first. It also meant COG was being heard but the Claimant was not and was being kept waiting;[171]This has been largely addressed in relation to allegation 3 above. Ms O’Grady’s grievance was brought in October 2022, and the investigation report was produced in the middle of December 2022. As a matter of fact therefore, the grievance was addressed before any disciplinary hearing against Ms O’Grady, but, as Ms Rawson made clear to the Claimant on 25 November 2022, the Respondent did not consider that there were any disciplinary proceedings that should be implemented against Ms O’Grady. The fact therefore that her grievance was acted upon, and was acted upon reasonably quickly, did not involve a breach of the implied term. 9. MK told the Claimant that the disciplinary request was a separate matter which was MK again ignoring the Claimant like VK and DW had also done;[172]As a matter of fact, it was made clear to the Claimant, during the investigative meeting on 22 November 2022, that any disciplinary concern he had raised against Ms O’Grady was separate to the grievance concerns she had raised. That did not involve Ms Kahl ignoring the Claimant in any way, as the Claimant was able to discuss his concerns about Ms O’Grady with Ms Rawson three days later. 10. On 21 November 2022 the Claimant’s request for a copy of COG’s grievance was refused;[173]The Claimant’s request for a copy of Miss O’Grady’s grievance on 21 November 2022 was, as a matter of fact, refused. However, it was made clear to the Claimant by Ms Kahl on that day that he would see the letter the following day before the meeting, and would be given plenty of time to read it. 11. The grievance meeting on 22 November 2022 was conducted in a biased manner with questions being asked in a way that were on COG’s side;[174]We were not satisfied that the grievance meeting on 22 November 2022 was conducted in a biased manner. The meeting was to explore the concerns raised by Ms O’Grady, and to understand the Claimant’s response to those concerns. The focus of Ms Loar’s questions was therefore bound to be on the concerns being raised. We were satisfied however that they were raised in a neutral manner, and were designed to explore the underlying issues.12. On 22 November 2022 MK asked DW if there were any performance issues with COG and excluded the Claimant as COG’s line manager; and13. On 22 November 2022 DW told MK that there were not any performance issues with COG which was false and excluded the Claimant as line manager;[175]As a matter of fact, Ms Kahl did ask Ms Webber if there were any performance issues with Ms O’Grady, but that arose in the context of it being clear, from the meeting on 22 November 2022, that Ms O’Grady’s performance review was on hold. That appeared to lead Ms Kahl to be concerned that the usual service increment that would have been payable to an employee, subject to satisfaction of performance criteria, had not been paid to Ms O’Grady in September 2022 when it ordinarily would have been paid.[176]Whilst it seemed to us that Ms Kahl had overlooked the Claimant’s communication to her that the performance review had been put on hold at Ms O’Grady’s request, all that Ms Kahl was doing was seeking confirmation from Ms Webber that there were no concerns over Ms O’Grady’s performance in order that the incremental pay award could be authorised. Whilst this did exclude the Claimant as Ms O’Grady’s line manager, this was a not unreasonable step for the Respondent to take in the circumstances. 14. At a meeting on 24 November 2022, without hearing the Claimant’s side of the story, LR told the Claimant that what he was doing was malicious, nonfactual, had no merit and would not progress;[177]As we noted in our findings, we did not consider that Ms Rawson told the Claimant that what he was doing was “malicious, non-factual, had no merit and would not progress”. It was clear to us that the Claimant himself perceived that that was what Ms Rawson was telling him, but we noted that Ms Rawson used the term “non-factual” to describe Ms O’Grady’s comments about the Claimant in her reflective account, and used the term “malicious” to describe how the Claimant’s request to progress disciplinary action against Ms O’Grady could have been perceived in the context of being seen to be retaliatory for him becoming aware on 22 November 2022 of the content of her complaints about him. 15. On 1 December 2022 DW said she had investigated a complaint that related to COG and had spoken to COG about it which excluded the Claimant from the process as line manager;[178]It was clear that Ms Webber did investigate a patient complaint relating to Ms O’Grady without referring to the Claimant. Whilst Ms Webber was dealing with the matter following a direct referral of it by Ms O’Grady, we considered that it would have been better for Ms Webber to have involved the Claimant in the discussion about the complaint, or at least to have spoken to him about how she had dealt with it. We considered that this could be seen as an example of Ms Webber undermining the Claimant, albeit to a relatively limited degree. 16. Around 6 December 2022 DW also dealt with and spoke to COG and BM about a complaint that related to alleged fraud, and which DW decided was an error, without speaking to the Claimant about it or giving the Claimant feedback;[179]There is an error here, in that 6 December 2022 was the day on which BM (the support worker who raised a concern about the way the Claimant had spoken to her) told Ms Loar, during a grievance investigative meeting, that the matter that had underpinned her concerns about the way the Claimant had spoken to her, had been dealt with by Ms Webber who had reassured her that the underlying issue had been an error. That however actually seems to have happened somewhat earlier, on 22 September 2022. It does appear that Ms Webber spoke to BM on that day and reassured her, without speaking to the Claimant. Again, we considered that this could be seen as an example of Ms Webber undermining the Claimant, albeit, again, to a relatively limited degree, as Ms Webber was simply providing some reassurance to the support worker who had been understandably distressed by the references the Claimant had made to “fraud” and “court”. 17. On 15 December 2022 MK made a statement alleging that the Claimant had made an inappropriate comment to her on 21 November 2022; MK had a conflict of interest as she was involved in investigating the grievance;[180]Ms Kahl did indeed make a statement alleging that the Claimant had made an inappropriate comment to her on 21 November 2022. However, that related to a concern that an incident of sexual harassment had arisen, and was one that she was quite entitled to raise; indeed, arguably, as an HR Manager, was obliged to raise. The fact that Ms Kahl had a role in assisting Ms Loar in the investigation of Ms O’Grady’s grievance had no bearing on that and did not amount to a conflict of interest. 18. Grievance outcome findings were made against the Claimant;[181]As a matter of fact, some grievance outcome findings were made against the Claimant, but equally, some of the concerns raised against him were not upheld. 19. The grievance outcome was not given to the Claimant at the time despite having been told he would be given a copy;[182]This again amounts to something of a misunderstanding on the Claimant’s part. He was told, at the commencement of the investigative meeting on 22 November 2022, that Ms Loar would take everything the Claimant said on board before making “a decision as to how to proceed further, which will be communicated to you in writing”. The Claimant seems to have interpreted that as being an indication that Ms Loar’s grievance report would be provided to him. However, that report related to Ms O’Grady’s grievance, and therefore would only have been provided to Ms O’Grady herself. What was meant by the words used was that any subsequent action, such as, as subsequently transpired, the taking of disciplinary action, would be communicated to the Claimant in writing. That was ultimately done. 20. A disciplinary process was commenced against the Claimant;[183]Again as a matter of fact, a disciplinary process was commenced against the Claimant. That arose in part out of Ms Loar’s grievance report, and then, following further investigation, arose out of the other matters that had arisen during the grievance investigation relating to concerns of potential sexual harassment. We were satisfied that the instigation of a disciplinary process was a reasonable step in the circumstances. 21. On 19 December 2022 DW was appointed as investigation officer in the disciplinary case against the Claimant when she had a conflict of interest;[184]Ms Webber was indeed appointed to investigate the disciplinary allegations which had arisen from concerns raised by Ms Kahl and one of the Unit nurses. Ms Webber herself accepted under cross-examination that she now appreciated that it would have been better had she not undertaken such a role, and we agreed that it would have been better had someone with no prior involvement in the issues relating to the Claimant undertaken that role. However, Ms Webber’s role was only to investigate the allegations, and to assess whether they should be taken forward as disciplinary allegations. She was not ultimately a decision maker, and any conflict of interest that may have arisen had very little, if indeed any, impact on the Claimant. 22. On 19 December 2022 DW rushed the Claimant to attend an urgent meeting without telling him what it was about and when the Claimant was busy with his work. The Claimant was not given the opportunity to prepare himself for the meeting and was in the dark and put on the spot;[185]Evidence from messages and emails within the bundle indicated that Ms Webber was concerned that the Claimant would not arrive in time for the initial disciplinary investigation on 19 December 2022. Furthermore, the Claimant was not given an opportunity to prepare for the meeting and was therefore “in the dark” and was “put on the spot”. However, we noted that this was the initial investigative meeting with the Claimant, and it was not therefore unreasonable for the Respondent not to provide advance notice of the allegations that were being discussed in order to see how the Claimant reacted to them. We did not consider therefore that the Respondent’s approach was unreasonable. 23. On 19 December 2022 the Claimant was suspended. The suspension, including the initial decision and the suspension throughout the period, was unreasonable;[186]Again, as a matter of fact, the Claimant was suspended on 19 December 2022. However, the allegations, involving as they did allegations of sexual harassment, were serious and potentially involved gross misconduct. In the circumstances, the Respondent was justified in suspending the Claimant, as a repetition of the Claimant’s conduct, in circumstances where the Respondent was aware of the allegations against him, could have had serious ramifications for it. In our view, the decision to suspend remained a reasonable one through to the conclusion of the disciplinary proceedings in May 2023. 24. Alternatives to suspension were not considered;[187]We did not see any evidence that alternatives to suspension were considered, so again this allegation was made out in fact. However, as noted in relation to sub-paragraph 23, the allegations were serious, potentially amounting to gross misconduct, and therefore we did not consider that an alternative to suspension would have feasibly been available in any event. 25. At the meeting on 19 December 2022 the Claimant was only asked about two of the five allegations stated in the suspension letter;[188]At the investigative meeting on 19 December 2022, the Claimant was indeed only asked about two of the five allegations listed in the suspension letter. That was because the other three had been addressed during the process of investigating Ms O’Grady’s grievance. 26. The disciplinary allegations included an allegation of not doing a performance review was a false allegation;[189]The disciplinary allegations did include an allegation that the Claimant did not undertake a performance review of Ms O’Grady in September 2022. As we noted in relation to sub-paragraph 12 above, it was known to Ms Kahl, following an email from the Claimant, that that performance review had been put on hold at Ms O’Grady’s request. That knowledge appears however not to have been recalled by Ms Kahl following the grievance investigative meeting on 22 November 2022, when the Claimant stated that the review was on hold. It was therefore progressed as a disciplinary allegation.[190]Ultimately, during the course of the investigations carried out by Ms Beechey, the Claimant produced his email to Ms Kahl and she decided that the allegation was not made out. However, the fact that an allegation was not made out did not mean that it was necessarily put forward as a false allegation. In our view, as we have noted, it was likely that Ms Kahl had simply forgotten the earlier email exchange that she had had with the Claimant. 27. The decision to suspend was based on five allegations when the Claimant had only been asked about two;[191]As noted in relation to sub-paragraph 25 above, the Claimant had been asked about all five allegations, across the two processes, i.e. the investigation of Ms O’Grady’s grievance and the separate and subsequent investigation into disciplinary concerns relating to the Claimant. In our view, the suspension letter was not particularly well drafted, as all five allegations were listed as being ones of potential gross misconduct, whereas it appeared to us that the first one, the allegation of inappropriate comments and actions in relation to female colleagues which made them feel uncomfortable, was probably the one which motivated the suspension decision in the main. 28. The disciplinary investigation only took 3 days concluding on 22 December 2022; it was not a full and fair investigation;[192]The disciplinary investigation did indeed only take three days. However, all that was required was clarification of the concerns being raised by Ms Kahl and the Unit nurse, and a discussion of those concerns with the Claimant to understand his perspective on the concerns that had been raised. It was therefore a limited investigation, and the fact that it took only three days did not mean that it was not full and fair. 29. There was a lack of updates to and communication with the Claimant about the suspension and the disciplinary investigation;[193]We did not consider that there was a shortage of updates to, or communication with, the Claimant about the suspension and the disciplinary investigation. At the time of the suspension, in December 2022, it was known that the Claimant was due to have surgery at the end of that month. It was then anticipated that he would be away from work for several weeks whilst recuperating. It was then left to the Claimant to contact the Respondent at the point when he was fit enough to proceed. The Claimant did that in early February, noting that, notwithstanding that he was submitting further Fit Notes to confirm that he was unfit to work, he was prepared to proceed with the disciplinary hearing.[194]Following some further discussions, it was confirmed, on 20 February 2022, that the grievance hearing would take place on 3 March 2023. That hearing took place as scheduled, and further investigation was needed which took place later in March. Attempts then to arrange the reconvened hearing in April proved unsuccessful due to diary issues, and the reconvened hearing took place on 3 May 2023.[195]Following a further investigative step, and time given to the Claimant to provide further evidence and indicate the names of witnesses he felt should be spoken to, the hearing was reconvened for the decision to be given on 23 May 2023. During that period, the Claimant queried his suspension but was told that it remained appropriate. 30. The Claimant was treated as being on long term sick without informing him;[196]It appeared to us that there were “crossed wires” between the Claimant and the Respondent about his sickness absence. The Claimant was formally suspended on 19 December 2022 and that therefore could have remained his status until such time as the suspension was lifted. However the Claimant, quite understandably, as he was unfit for work, submitted Fit Notes from the point of his operation at the end of December 2022 onwards. The Respondent operates a Shared Service Centre to deal with HR administration, and it is our presumption that that HR Service Centre dealt with the Claimant’s Fit Notes and recorded his absence as being due to sickness without taking into account the decision to suspend him. Discussions did then take place with the Claimant about being certified as unfit to work or being suspended, which came to a head when the Claimant was not fully paid for the month of March 31. The Claimant was changed from suspension to long term sick but terms of suspension were still imposed on him;[197]This has largely been dealt with by sub-paragraph 30 above. Our impression was that any change from suspension to long term sick had been done by actions of the HR Service Centre. Ms Rawson did then make clear that the Claimant should comply with the terms of his suspension, i.e. in terms of not contacting colleagues and not accessing the Respondent’s systems without consent, notwithstanding that he was certified as unfit to work. In our view, the better approach by the Respondent would have been to have effectively not acted upon the Claimant’s Fit Notes and to have treated the Claimant as a suspended employee throughout. In circumstances however where, as we have described it, wires were crossed over the precise nature of the Claimant’s absence, it was not unreasonable for the Respondent to re-affirm the particular restrictions that were placed on the Claimant at the time. 32. On 6 February 2023 the Claimant was told he would be referred to Aviva for a PHI assessment and that Aviva would contact him but there was no further communication about this;[198]The Claimant was indeed told that he would be referred to Aviva for a Permanent Health Insurance assessment and that Aviva would contact him. However, Aviva quickly made clear that the Claimant simply was not eligible to be processed for a PHI claim at that stage, or indeed for a substantial further period. As a consequence, Aviva then did not contact the Claimant. 33. On 23 February 2023 the Claimant asked for his suspension to be lifted so he could prepare his case but it was denied. It hindered his ability to prepare such as contacting witnesses;[199]The Claimant did, on 23 February 2023, ask for his suspension to be lifted. However he also put forward the alternative of being allowed to contact colleagues and to use his work mobile and lap top to access files, emails etc. Whilst the request to lift the suspension was not lifted, and Ms Rawson confirmed that the Claimant was still to comply with the suspension rules notwithstanding that he was absent due to sickness, she went on to say that if the Claimant wished to obtain anything to use as preparation for the hearing he was to let her know and she would assess whether he was entitled to have the documentation and send that across to him.[200]Whilst Ms Rawson’s response was focused on documents, we considered that, had the Claimant put forward a reasoned request to be able to speak to a specific witness, that access could have been granted. We noted that, when the Claimant indicated that he needed to access certain documents and emails, he was given permission to use his work laptop for that purpose. 34. On 23 February 2023 the Claimant asked for a copy of the staff handbook and it was refused;[201]The Claimant did also ask for a copy of the Staff Handbook on 23 April 2023, and Ms Rawson replied that the Respondent did not have an Employee Handbook that was currently in use. She did however ask the Claimant if there was something specific he wanted and that she would then look to send it over to him, but the Claimant did not make any further requests. 35. On 3 March 2023 LR was involved at the disciplinary hearing and also in actions on 9 March 2023 but had been actively involved in the investigation and had a conflict of interest and had also pre-judged the Claimant through her conduct on 24 November 2022;[202]Ms Rawson was, as we have noted, the HR Business Partner with responsibility for the area of the Respondent’s business in which the Claimant worked. It would therefore be expected that she would be involved in the management of HR matters in that area, and would be involved in matters involving the Claimant. Her role however was always one of providing HR support, and she was not a decision maker at any stage. We did not, in any event, see that any assertion that Ms Rawson had prejudged the Claimant through her conduct on 24 November 2022 was made out. 36. On 3 March 2023 the Claimant gave names of other staff to be interviewed but they were not spoken to;[203]As we noted in our findings, the Claimant put forward five names of individuals who should be interviewed whereas only two were actually interviewed. The rationale for doing that was not explored with Ms Beechey when giving her evidence, however we noted that Ms Beechey and Ms Rawson on several occasions asked the Claimant to provide names of additional staff to be interviewed if he thought that that was required. It did not seem to us therefore that the failure to interview three of the five persons named on 3 March 2023 involved elements of unreasonable conduct on the Respondent’s behalf, as the Claimant could have restated that request subsequently.[204]Instead, it appeared to us that the Claimant’s case appeared to be that the Respondent should have interviewed the entire Unit to assess the various allegations going in either direction. However the Respondent made clear during the internal processes that it did not think that it was appropriate to interview the entire Unit, on the basis that the Claimant could well return to the Unit, and the fact that all members of it would then be aware of the allegations would not have been helpful in facilitating a smooth return. We did not consider that that was an unreasonable stance for the Respondent to take. 37. On 24 March 2023 the Claimant was told to decide if he would prefer his absence to be treated as suspension rather than sickness absence which was unfair as the Claimant did not wish to be suspended in the first place;[205]As we noted in our findings, there was confusion within the Respondent’s organisation about the nature of the Claimant’s absence in February and March 2023. As we have also noted above, it would have been preferable for the Respondent to have proceeded purely on the basis that the Claimant was suspended, and to have effectively disregarded the Fit Notes. However, when the issue came to a head in March 2023, when the Claimant received sick pay rather than the full pay he would have been entitled to as a suspended employee, Ms Rawson put it to him that it could be treated as a suspension if he confirmed in writing that that was to be the case. Whilst we appreciated that the Claimant had had no wish to be suspended in the first place, we did not consider that Ms Rawson’s request was unreasonable, and she ultimately took what we considered to be the appropriate action of ensuring, in April 2023, that the Claimant was paid in full, i.e. on the basis of suspension rather than sickness absence. 38. Between 27 and 29 March 2023 the Respondent was indecisive as to how to treat the Claimant’s absence/pay;[206]This has been largely addressed by our conclusions at sub-paragraph 37 above. The Respondent was indeed indecisive as to how to treat the Claimant’s absence and pay, we considered on the basis of the “crossed wires” we considered existed. However, Ms Rawson put forward a clear indication to the Claimant as to what could happen if he wished, and simply asked the Claimant to provide confirmation of that in order that she could, as she stated in an email of 29 March 2023, “overturn” the Fit Notes. She ultimately then, as we have noted, took the unilateral step of ensuring the Claimant was paid in full for the relevant period. 39. The Respondent then reverted back to suspending the Claimant when the investigation had concluded on 22 December 2022;[207]Although the disciplinary investigation into the Claimant had been concluded on 22 December 2022, the allegations potentially amounting to gross misconduct remained, and therefore it was not inappropriate for the Claimant’s suspension to remain in force. 40. On 31 March 2023 the Respondent failed to interview relevant witnesses other than RI and DW;[208]This repeats the allegation that we have addressed at sub-paragraph 36 above. The Respondent did indeed only interview two of the five named individuals put forward, but, on several occasions subsequently invited the Claimant to provide names of relevant witnesses. The Claimant therefore had those opportunities to restate his desire that other witnesses should be interviewed, but did not do so. 41. At a further disciplinary hearing on 3 May 2022 when the Claimant asked why COG’s grievance was acted quickly whilst his was not, LR said they had a duty of care to COG. When the Claimant asked about the duty of care to him there was no response;[209]Having considered the notes of the reconvened disciplinary hearing on 3 May 2022, we could see that two references to “duty of care” were made. One related to a duty of care to the staff, i.e. to other female staff, as an explanation for the decision to suspend the Claimant, whilst the other actually referred to a duty of care owed to the Claimant as an explanation as to why it was felt that it would be inappropriate to speak to the whole team. There was no indication of any duty of care being owed to Ms O’Grady individually. 42. The Respondent inappropriately said the Claimant had to give names of people to interview whilst also saying they would decide whether people would be spoken to or not;[210]We did not consider that there was anything inappropriate in the Respondent asking the Claimant to put forward names of people he suggested should be interviewed, whilst retaining the final decision as to whether to speak to those individuals, based on the relevance of what they might have to say. 43. On 24 May 2023 the Claimant was given a final written warning; the findings made against him and imposition of the warning were unfair. The Claimant says the findings and the resulting final written warning were the final straw;[211]The Claimant was indeed given a final written warning, but we did not consider that that involved any unfairness. Whilst not directly applicable, we considered the sanction in the context of the range of reasonable responses within which we would consider any dismissal decision, and considered that the decision to impose a final written warning, in circumstances where some serious allegations were made out, fell comfortably within the range of responses open to a reasonable employer acting reasonably in the circumstances. 44. Three allegations were upheld which the Claimant had not been asked about;[212]We could see from the minutes of meetings that the Claimant was asked about all allegations. 45. The Claimant handed in statements from colleagues but they were not properly taken into account;[213]We did not see any evidence to suggest that the Claimant had handed in statements from colleagues which were not properly taken into account. 46. The Claimant’s version of events was not properly considered;[214]We noted that one of the five allegations against the Claimant was ultimately not upheld which, in our view, demonstrated that the Claimant’s version of events had been properly considered. 47. Pursuing ostensibly without prejudice discussions with the Claimant with a view to implementing a clean break, i.e. the termination of the Claimant’s employment.[215]Whilst we appreciated that the Claimant might reasonably have been taken by surprise by the conversation with Ms Rawson about his possible departure, we could see the rationale behind her approach. We noted that if the Claimant’s complaints had been confined to unfair dismissal, the discussion would have been a “protected conversation”, or, using the particular words of the legislation, would have been “pre-termination negotiations”, subject to Section 111A of the Employment Rights Act 1996. That would have meant that evidence of the discussion would have been inadmissible, and we anticipated that Ms Rawson had proceeded with the discussion on that basis, as the first indication the Claimant raised of possible discrimination was in his subsequent resignation letter. However, Section 111A only applies to unfair dismissal claims, and the Claimant has brought a complaint of race discrimination to which the Section cannot apply. As we have noted however, the Claimant had made no reference at all to feeling that he had been discriminated against during any of the processes up to that point, and only raised the point within his ultimate resignation letter in June[216]We noted that the Respondent had made a disciplinary decision adverse to the Claimant, in circumstances where he felt that he had not been in the wrong, and indeed had felt particularly hard done by himself. He was then going to be faced with going back into work, in circumstances where he was being placed on a performance improvement plan, and was required to retrain.[217]It was, in our view, quite understandable that the Respondent could consider that the Claimant might find that unpalatable, and might instead prefer to move to different employment, receiving a sum of money to do so. Indeed, we noted that the Claimant did not reject the Respondent’s suggestion out of hand, and did instead enter into negotiations with the Respondent over, we presumed, the amount of any financial payment.[218]In the circumstances, we did not consider that the Respondent’s action in putting forward the possibility of a parting of ways, particularly in the way that it did, where it very much put forward the proposal as a possible option with it being entirely for the Claimant as to whether to accept it or not, meant that there had been a breach of, or a contribution to a breach of, the implied term. General conclusion on the constructive unfair dismissal claim[219]Having reached our conclusions in relation to the specific allegations of acts or omissions said by the Claimant to amount to, or to contribute to, a breach of the implied term, we then moved to consider the five questions raised by Underhill LJ in paragraph 55 of Kaur, which we set out at paragraph 26 above. Our conclusions in relation to those questions were as follows(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? The most recent act on the part of the Respondent which the Claimant asserted caused, or triggered, his resignation, was, in light of the application to amend granted at the start of the hearing, a little unclear. The stated most recent act in the Claimant’s Claim Form, as noted at paragraph 2.1.1.43 of the List of Issues, was the imposition of the final written warning in circumstances which the Claimant contended were unfair. However, the amendment granted at the start of the hearing catered for a slightly later act, that of the raising of ostensibly without prejudice discussions with a view possibly to implementing a clean break. The latter act followed immediately on from the former, and we therefore considered it appropriate to consider them both as the most recent acts which the Claimant asserted triggered his resignation.(2) Has he or she affirmed the contract since that act? We did not consider that the Claimant affirmed the contract after those acts. We noted that the Claimant described himself, in his additional witness statement dealing with the “clean break” proposition, as having been “devastated” to have been given a final written warning and placed on a formal performance improvement plan. However, he also described himself as “grateful not to have been summarily dismissed”. We also noted that he, via his representative, did enter into negotiations with the Respondent over the terms of the proposition put forward. We did not however consider that those steps, whether individually or in combination, could be considered to have amounted to an affirmation of the contract. The Claimant had effectively no time to react to the imposition of the final written warning before the clean break proposition was put forward, and the Respondent itself then put forward a ten-day period during which those proposals could be considered, which the Claimant took up. It was only then, at the end of that period, that the Claimant submitted his resignation. We did not consider that the Claimant’s actions at the time, or the period of time spent, should be considered to amount to affirmation.(3) If not, was that act (or omission) by itself a repudiatory breach of contract? As we noted in our specific conclusions relating to sub-paragraphs 2.1.1.43 and 2.1.1.47, we did not consider that either of the acts of the imposition of a final written warning or the opening up of discussions about a clean break were by themselves a repudiatory breach of contract, and we formed a similar view when considering both acts together.(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? In relation to the question of whether those acts were then nevertheless a part, applying the approach explained in Omilaju, of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a breach of them Malik term, we were unable to agree. Majority view The majority was of the view that, whilst there were certainly elements of the events between October 2022 and March 2023 which could have been handled better by the Respondent, and indeed were worthy of criticism of the Respondent, those issues did not involve conduct on the part of the Respondent which was likely to destroy or seriously damage the relationship of confidence and trust between the Respondent and the Claimant. Any acts or omissions of the Respondent which were, in the majority view, to be viewed critically, were relatively minor ones, with the significant majority of the Claimant’s allegations either not being made out in fact, or, where made out in fact, being matters which were entirely justifiable in the circumstances. Notably, the three core areas, in the majority’s view, of criticism advanced by the Claimant were not made out. First, the Claimant complained that his desire to implement disciplinary proceedings against Ms O’Grady was not permitted, whereas Ms O’Grady’s grievance against him was investigated and ultimately led to disciplinary action being taken against him. However, in the majority view, the Respondent put forward a cogent rationale for not wishing to pursue disciplinary action against Ms O’Grady, in circumstances where, however he may himself personally have felt, the Claimant did not articulate his desire that Ms O’Grady’s actions should be investigated more broadly, i.e. beyond the matters raised in his “Concern” email. The Claimant then made expressly clear that he did not wish to raise any grievance against Ms O’Grady. By contrast, Ms O’Grady made it very clear that she wished the areas of concern she was raising about the Claimant to be investigated, and that was then done. Roughly half of the areas of concern raised by Ms O’Grady were then upheld, with the other half not being upheld, and the majority did not think that it was then unreasonable for the matters upheld to be taken forward by way of disciplinary action. The areas of concern in relation to the Claimant’s behaviour were then exacerbated as a result of the Claimant’s actions during the grievance investigation, and as a result of further information which came to light during that investigation. It was appropriate for the Respondent to investigate those allegations, and then to take them forward, alongside the areas of concern formed from the grievance investigation, to a disciplinary hearing. The Claimant’s second core concern, of being given a final written warning and placed on a performance improvement plan, was not, in the majority’s view, made out. The sanction was not an unreasonable one, in circumstances where allegations potentially amounting to gross misconduct were under consideration. The Claimant’s third core area, that of opening up discussions with a view to a clean break, was again, as we have already noted above, in the majority’s view, not an unreasonable step to take in the circumstances. Overall therefore, the majority view was that the Respondent was not guilty of a course of conduct which could be considered to have been likely to destroy or seriously damage the relationship of trust and confidence between the Respondent and the Claimant. Minority view The minority reached a different view in relation to this question, considering that there was a course of conduct on the part of the Respondent which did destroy or seriously damage the relationship of trust and confidence. Whilst agreeing that the imposition of the final written warning was not an unreasonable step, the minority had concerns over the entire process, and in particular about Ms Webber’s involvement in it. The minority was of the view that Ms Webber was predisposed to accept Ms O’Grady’s version of events and, as a consequence, less willing to accept the Claimant’s version. The minority was also of the view that the particular allegations of sexual harassment raised against the Claimant, whilst not being excused, were partly explicable by reference to language difficulties and a potentially natural tendency to hug people arising from the Claimant’s cultural background. (In that regard, the majority was of the view that, even if the Claimant’s actions in hugging colleagues could be referable to his cultural background, it was nevertheless inappropriate for him to seek to hug a considerably more junior employee, or to speak to an HR Manager in the way that he did. It was also noted that the Claimant had hugged Ms Rawson at the conclusion of their discussion on 23 May 2023, even after Ms Rawson had made it clear to him, following a request, that it would not be appropriate.) The minority was also of the view, with regard to the pursuit of the clean break negotiations, that other options could potentially have been considered, possibly involving a move to a different location. Overall, the minority had concerns that, viewed cumulatively, there were sufficient failures on the part of the Respondent to breach the Malik term, culminating in the “last straw” of the clean break negotiations. Regardless of that however, the majority view prevailed, and the Claimant’s complaint of unfair dismissal therefore failed.(5) Did the employee resign in response (or partly in response) to that breach? In view of the majority conclusion in relation to question (4), we did not need to address this. Direct Race Discrimination[220]All 30 individual allegations of direct race discrimination replicated 30 of the 47 specific allegations said to amount to breaches of the implied term of trust and confidence. Our conclusions in relation to those paragraphs can therefore be read across to the 30 specific allegations of direct race discrimination.[221]We then moved to consider whether those acts involved less favourable treatment, and, if so, whether it was because of the Respondent’s race. We paid close regard to the burden of proof provisions set out at Section 136 of the Equality Act 2010, and also took into account the potential for there to have been sub-conscious discrimination, on the basis that overt discrimination is rare.[222]With regard to the comparative treatment, we noted that the Respondent compared himself with Ms O’Grady. However, we were not entirely satisfied that a comparison with Ms O’Grady would be appropriate, taking into account the requirements in Section 23(1) of the Equality Act 2010, i.e. that there must be no material difference between the circumstances relating to each case.[223]In our view, there were material difference between the circumstances and Ms O’Grady and the circumstances of the Claimant. Ms O’Grady had formally raised a grievance against the Claimant, whereas the Claimant had not, the Claimant seeking to rely on a request to pursue disciplinary action against Ms O’Grady. Even if those differences should not be considered to have been material, we did not consider that they pointed any more strongly to a difference in race than to a difference in sex, Ms O’Grady being a white British woman and the Claimant being a Filipino man.[224]Nevertheless, even by comparison with Ms O’Grady or with a hypothetical comparator, we did not see that there was any evidence to point to less favourable treatment of the Claimant because of his race. For the most part, as we have noted, the allegations raised by the Claimant did not involve any unfavourable treatment, let alone treatment which was less favourable. Even where there was treatment which was, in broad terms, unfavourable, and, as we have noted, there was a difference of view between the majority and the minority on those matters, we nevertheless considered, unanimously, that there was nothing to indicate that any such treatment had arisen because of the Claimant’s race.[225]We did not consider that there were any facts from which, in the absence of a non-discriminatory explanation, discrimination could be inferred. As Mummery LJ noted in Madarassy, the mere fact of a difference in status and a difference in treatment only indicate a possibility of discrimination. We could not, in our unanimous view, point to anything “more” to lead us to conclude that, on the balance of probabilities, the Respondent had committed unlawful acts of discrimination. In the circumstances, the Claimant’s complaint of direct race discrimination also fell to be dismissed.