Mr S Al Afif v Skills and Work Solutions Ltd T/a The Growth Company: 1808316/2018

EMPLOYMENT TRIBUNALS

Case No 1808316/2018

Between

Mr S Al AfifClaimant

Skills and Work Solutions Ltd T/a The Growth CompanyRespondent

Before

Employment Judge Little

In person for claimant

Mr D Dyal (instructed by Counsel (instructed by Kennedys)) for respondent

Date 8 May 2019

JUDGMENT

[1]Whilst the claimant is found to be a person with a disability at the relevant time the complaint of failure to make reasonable adjustments fails.

[2]The Tribunal does not have jurisdiction to determine on their merits the harassment related to race and/or religion complaints in so far as that concerns an incident in Manchester in 2016 because:-a. The claim about this was presented out of time;

b. It is not just and equitable to extend time;

c. In any event the respondent could not have vicarious liability for any potential harassment said to have occurred on that date.

[3]Even if the Tribunal had jurisdiction this aspect of the harassment complaint would fail on its merits.

[4]The complaint of harassment in relation to comments within the grievance outcome letter of 7 March 2018 fails.

[5]The claimant was not unfairly dismissed. Case No: 1808316/2018

[6]Accordingly the claim is dismissed. JUDGMENT having been sent to the parties on 21 March 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]These reasons are given at the request of the claimant in his email of 26 March 2019.

The Complaints

[2]The claimant presented his claim to the Tribunal on 6 July 2018. Case Management Hearings were conducted on 31 August 2018 and 30 November 2018. At the latter hearing the claimant’s complaints were confirmed and clarified to be as follows:-• Disability discrimination – failure to make reasonable adjustments

• Harassment related to race

• Harassment related to religion

• Unfair dismissal

[3]With regard to the harassment complaints, the unwanted conduct in respect of both was the same. There was an allegation of unwanted conduct in relation to a social evening in Manchester on 6 November 2016 and the other unwanted conduct said to arise during the course of a grievance which, some fifteen months later, the claimant had raised about the November 2016 incident.

The Issues

[4]These had been set out at the 30 November 2018 Case Management Hearing. It was confirmed and agreed at the beginning of the final hearing that the following issues were to be determined by the Tribunal :- Disability discrimination – failure to make reasonable adjustments4.1 At the material time was the claimant a person with a disability as defined by the Equality Act 2010? (The claimant relied upon the mental impairment of Post-Traumatic Stress Disorder)

4.2 If the claimant was disabled at the material time, did the respondent know that or should it reasonably have been expected to know it?

4.3 Did the respondent have a provision, criterion or practice which was it’s redundancy procedure?

4.4 If so, did that put the claimant at a substantial disadvantage in comparison with persons who are not disabled? (The claimant contends that the procedure caused him greater anxiety and stress than would have been caused to a person who was not disabled)

4.5 If there was that substantial disadvantage, did the respondent know that or should it reasonably have known that?

4.6 If so, did the respondent take such steps as it was reasonable for it to have to take to avoid the disadvantage? (The claimant says that he should have been supported by being coached and given more time for the selection exercise which was at the heart of the redundancy process. He also says that the fact of his absence through sickness from December 2016 to April 2017 should have been taken into account). Unfair Dismissal

4.7 Can the respondent show a potentially fair reason for dismissal? The respondent seeks to show the reason of redundancy.

4.8 If that potentially fair reason can be shown, was it actually fair by reference to the Employment Rights Act 1996, Section 98(4) and in particular:

• Did the respondent have “an overarching desire” to get rid of the claimant?

• Was there a failure to consult?

• Was the use of competitive interviews to select for redundancy reasonable?

• Was the scoring of the claimant “unreasonable”? Harassment

4.9 Does the Tribunal have jurisdiction to consider the alleged harassment which occurred in November 2016 or was that presented out of time? Would it be just and equitable to extend time?

4.10 Did colleagues of the claimant engage in unwanted conduct during the course of the 6 November 2016 social evening in Manchester? If so, was that conduct done during the course of their employment so that the respondent would be vicariously liable for any unlawful actions?

4.11 If there was unwanted conduct, was it related to the claimant’s race or to his religion?

4.12 If so, did the conduct have the purpose or effect of violating the claimant’s dignity?

4.13 If it had that effect, was it reasonable for it to have had that effect taking into account the perception of the claimant and the other circumstances of the case?

4.14 Did the respondent engage in unwanted conduct by questioning the claimant’s adherence to Islam when it investigated the grievance which the claimant ultimately raised with regard to the Manchester incident?

4.15 If so, was that conduct related to religion or race?

4.16 If it was, did it have the purpose or effect of violating the claimant’s dignity?

4.17 If it had that effect, again was it reasonable for it to have had that effect? Applications at the beginning of our hearing

[5]On 21 February 2019 the claimant had written to the Tribunal requesting nine documents or categories of documents from the respondent. We heard the respondent’s explanation for the inability to disclose some of those documents – for instance the documents in question did not exist. However, it was acknowledged that a redundancy policy should have been disclosed and we were subsequently provided with a copy during the course of the hearing.

[6]The respondent made its own application which was to introduce a transcription of a recording of the grievance appeal. We were told that the recordings themselves had already been disclosed to the claimant or he may have obtained them under a Subject Access Request. We were concerned about the late disclosure but the transcripts were clearly relevant and disclosable. It was obvious that the claimant would need time to read that additional documentation, although we understood that he would now be reading something which he had already had access to as an audio file. We took the view that the claimant would be able to undertake this reading and prepare any further questions that he wished to ask the relevant witnesses about during the time that we would need to read all the witness statements and all the relevant documents. In the event that took us over three hours.

The Evidence

[7]The claimant gave evidence but did not call any other witnesses. He had prepared an Impact Statement with regard to the disputed disability status issue and he had prepared a further witness statement which dealt with the merits of his claim. The respondents evidence was given by Ms N Kemp, a Service Manager based in the respondent’s Hull office. Ms Kemp had been involved with the 2018 redundancy consultation. Further evidence was given by Mr D McDonald, an Operations Manager. He heard the claimant’s grievance appeal. Ms M Pearce, another Operations Manager, gave evidence about home visits to the claimant when he was off sick, a redundancy exercise in 2017 and the grievance which the claimant raised in February 2018. The other witness for the respondent was Ms J Tummon who is an Employment and Training Consultant with the respondent. Ms Tummon had been present on the 6 November 2016 social outing in Manchester and in 2018 she was the other member of the two-person pool, when she was retained and the claimant was dismissed. The claimant’s grievance about events on the evening of 6 November 2016 had been directed at Ms Tummon. Documents

[8]The Tribunal had a trial bundle before them which, with the addition of the transcript referred to above ultimately ran to 396 pages.

[9]The relevant facts9.1 Originally the claimant had been employed by an organisation called Phoenix Enterprises. The employment had begun on 7 November 2011.

9.2 On 4 January 2016 there was a relevant TUPE transfer with the result that the claimant became an employee of the respondent.

9.3 The respondent conducts what it describes as various public sector related activities aimed at promoting economic development and enabling disadvantaged members of the community to gain and sustain employment.

9.4 The claimant’s job title was Training and Employment Consultant (ETC). The claimant is a UK National of Yemeni origin and he is a Muslim.

9.5 There was to be a staff conference in Manchester on 7 November 2016 which the claimant and his team were required to attend. The team, or at least some of the team, which included the claimant, decided that they would travel to Manchester on the day prior to the conference, Sunday 6 November. They made their own travel arrangements and booked themselves into a budget hotel which they also paid for themselves. They decided that they would spend the Sunday evening in Manchester visiting various bars.

9.6 The evidence given by Ms Tummon, one of the participants, to us was that she observed the claimant drinking alcohol during the evening. In fact, she describes him as drinking heavily and that he was “straight on double vodkas”. Following a Chinese meal two of the party returned to the hotel, but the others, including the claimant went on to a series of other bars in the Canal Street area of Manchester, which we were told is known colloquially as the Gay Village.

9.7 The claimant’s evidence to us was that whilst he had gone for the meal and to the other bars with the party, he had not consumed alcoholic drinks. He said that he felt obliged to stay with the party rather than returning to his hotel after the meal because he did not know Manchester very well and would not have been able to find his way back to the hotel. He was sharing a room with another colleague and he did not have a key. The claimant contends that he was “taken unknowingly to a bar frequented by members of the gay community”. Whilst saying during the course of cross examination that he had no problem with gay people, in his witness statement he refers to feeling extremely uncomfortable when he realised he was in a gay bar.

9.8 In particular he complains about a photograph that was taken of him and a colleague and which was ultimately posted on What’s App. A copy of the photograph is on page 170 of the bundle. It shows the claimant and a colleague sitting opposite each other at a table in a bar. Someone has added the caption “First date onto (sic) Canal Street”.

9.9 Ms Tummon when giving evidence before us candidly accepted that she could not now remember whether she took the photograph or posted it on What’s App although she accepts that the picture with the caption was sent from her phone. She doubted that she would have known how to put the caption on it. She suggested to us that the caption might have related to the fact that it was her first time on Canal Street. Ms Tummon knew that the claimant was from the Yemen and that he was a Muslim. She had however observed in the past that he appeared to eat and drink what he wanted and she never saw him praying at work. This was in contrast with another colleague who was also a Muslim, and he was very careful she said about what he ate and drank and would say prayers during work time.

9.10 The claimant contends that Ms Tummon “had an agenda to make me feel useless and unwanted”. However, the claimant did not raise a grievance about this matter until 6 February 2018, some fifteen months after the event, but approximately two weeks after the claimant had been issued with his redundancy notice.

9.11 Towards the end of 2016 and into 2017 the respondent conducted a redundancy exercise. That led to the claimant being in a pool for selection but in the event, he was offered and accepted an alternative role with the respondent.

9.12 On 15 December 2016 the claimant had a panic attack at work. This led to a lengthy absence. The claimant did not return to work until 10 April 2017. He had been signed off with stress in the meantime.

9.13 During the course of that sickness absence there were four home welfare visits which were conducted by Ms Pearce. One such meeting took place on 8 February 2017 and some of the notes from that meeting appear at pages 119 to 120. Ms Pearce’s evidence to us was that when those notes had been scanned some had been missed and so not all of the pages were in existence now. Ms Pearce acknowledges that during this meeting the claimant made reference to the night out in Manchester and said that he was upset the photograph had been posted because his family might see that and think that he was gay. A Ms Lees who attended the meeting with Ms Pearce at this meeting reassured the claimant that no one else would be able to see the photograph because it was in a group chat. Ms Pearce says that the claimant was asked why he had not said anything about the matter before and whether he now wanted her to record it in the meeting notes and/or make a formal complaint. Her evidence is that the claimant said that he did not want the matter recorded or to make a formal complaint and that he was happy that he had been listened to and regarded the matter now as closed. Ms Pearce says that at no point did the claimant mention either his race or his religion with regard to that night out or the photograph or that he felt uncomfortable being in the ‘Gay Village’ (see Ms Pearce’s witness statement at paragraph 27). In his witness statement the claimant contends that he did raise grievances against Ms Tummon and another individual during home visit reviews but that Ms Pearce did not care or take any notice.

9.14 In December 2017 a second redundancy process began. That was because the respondent was made aware that referrals under the “Work Programme” scheme were to end and all funding for this type of work was to end by 2020. A staff meeting to impart this information was conducted on 5 January 2018 and the power point slides from that meeting appear at pages 139 to 143. The respondent’s redundancy policy, in fact called an Organisational Change Policy is now in the bundle at pages 83.1 to 83.10.

9.15 The respondent decided that in the circumstances which prevailed it only needed one Employment Training Consultant (ETC) whereas it had three.

9.16 At an early stage in the redundancy process one of the ETCs successfully applied for a different role. The Tribunal understands that this was not in the context of alternative employment being considered at the end of a redundancy process. That left a pool of two, who were the claimant and Jane Tummon. The policy states that when there is a compulsory selection pool, the respondent will apply objective selection methodology to reduce the number of the roles. The policy goes on to set out various methodologies which the respondent may deploy and those include:- “The company may consider a selection interview process, e.g. where a role may be required to perform additional or new duties. (See page 83.6)”.

9.17 In the event it was this methodology which the respondent used. In effect, the claimant and Ms Tummon had to re-apply for their own jobs. It was not a situation where they were applying for a role that required the performance of additional or new duties.

9.18 On 11 or 12 January 2018 Ms Pearce conducted the first consultation meeting with the claimant and the notes of that meeting are at page 146. The claimant was notified that interviews would be conducted on 17 January. The notes to which we have been referred are in the nature of a proforma with questions and then are some handwritten answers. One of the questions or statements in what amounts to a script reads: “If you feel there is any further support or advice that I can provide for you then please don’t hesitate to ask. If you have any further questions, please address them to me”. (see page 148).

9.19 Nothing is written in the adjacent box on the form.

9.20 The claimant’s interview duly took place on 17 January 2018 and it was conducted by Ms N Kemp from whom we have heard and a colleague Ms T Walker from whom we have not heard. We were told that Ms Walker is no longer employed by the respondent. Notes of the interview appear at pages 149 to 151, which are the comments of Ms Walker and the scores given by her. On pages 152 to 154 are the scores given by Ms Kemp during that interview. Ms Kemp’s evidence to us was that she was surprised and disappointed by the claimant’s performance at interview. A substantial part of the claimant’s existing role was to undertake job searches on behalf of clients. Ms Kemp was therefore surprised that the claimant did not deal with this thoroughly in his answer, which suggested to her that he lacked demonstrable knowledge and awareness of a role which he had been undertaking on a daily basis for some time. With some questions the claimant had to be prompted but even then, he was not, she said, able to develop the points that he was being asked about. Answers he gave were very general. The claimant achieved a score of 13 out of a possible 25 marks.

9.21 Ms Tummon was interviewed on the same day by the same panel and the notes of the two interviewers are at pages 155 to 160. Ms Kemp’s evidence was that Ms Tummon presented herself extremely well during the interview being positive, enthusiastic and motivated. She gave good answers which were short, straight to the point and “flowed”. She was able to give examples of what she would do in various circumstances that were put to her. Overall Ms Walker and Ms Kemp considered that Ms Tummon’s answers had been much more professional and structured than those of the claimant and they felt that the claimant had not carried out any preparation for the interview and appeared to have a poor appreciation of a job which he did on a daily basis. Ms Tummon scored 20 out of 25.

9.22 The claimant’s evidence is that his interview took 27 minutes but he believes that Ms Tummon’s interview only took 9 minutes. The claimant also alleges (see paragraph 83 of his witness statement) that when Ms Tummon came out of the interview she smirked at him and told him that she had got the job because Ms Pearce had already indicated this to her. Both Ms Tummon and Ms Pearce strenuously denied that this had occurred. This serious allegation was not put to Ms Tummon during the course of the claimant’s cross examination of her, but when the Employment Judge raised the issue with her the evidence as above was given – denial. The claimant also contends that his performance at the interview would have been better but for what he describes as the disadvantages of his illness which he contends Ms Pearce caused by (making) “my life living in hell which made me upset mentally”. The claimant is referring we believe to the welfare meetings Ms Pearce conducted (see paragraph 90 of his witness statement). The claimant also contends that the interview scoring “was not genuine, it was just a form of window dressing to cover their evil deeds” (see paragraph 91 of the claimant’s witness statement).

9.23 The final consultation meeting was conducted on 22 January 2018 and the notes are at pages 162 to 164. The claimant was informed that he had not been successful.

9.24 A letter confirming the claimant’s redundancy was written and sent to the claimant on 23 January 2018. A copy appears at page 165 to 167. During cross examination, and for the first time, the claimant alleged that he had either not received this letter until approximately ten days after it’s date or that he had not received it until June 2018 as a result of his SAR request. The letter referred to the claimant’s right of appeal against the decision but in the event the claimant did not raise an appeal.

9.25 On 6 February 2018 the claimant had submitted a grievance. A copy appears at page 168 in the bundle. It is directed against Ms Tummon and her alleged actions on 6 November 2016. The grievance goes on to give the claimant’s account of that night out in Manchester and the captioned photograph posted on What’s App. The claimant wrote: “As a Muslim, being taken to this club and having the fact advertised on Social Media, with a caption suggesting I was a willing participant, makes me feel extremely uncomfortable and anxious. I am extremely apprehensive that my members of my family (sic) or the community may become aware of fact (sic) as that will cause me a great deal of problems which will lead to isolation and the consequences associated with it.”

9.26 The claimant went on to contend that since that incident he had been “an emotional and psychological wreck”. He believed that the actions against him were motivated by discriminatory views.

9.27 A grievance hearing was conducted on 14 February 2018 by Ms Pearce. The claimant was accompanied by a Diane Mitchell of UNISON and we were told that it is her notes which appear at pages 179 to 183 in the bundle. However, as mentioned above, we also now have a full transcript of an audio recording from that hearing and that is at pages 328 to 369. The claimant gave his account of the evening of 6 November 2016 and said that he had no problem with gay people but whilst taking the photograph might have seemed like a joke it had affected the his mental health. The claimant said that he had told Ms Pearce about it on one of the home visits. The claimant was asked why he was raising the matter now and the claimant’s answer suggested that his ill health in the meantime had prevented him raising the issue.

9.28 The claimant’s employment terminated on 5 March 2018.

9.29 On 7 March 2018 Ms Pearce wrote to the claimant setting out the grievance outcome. It is a very detailed letter. Ms Pearce took the view that there was no breach of the law in one person taking a photograph of another. She pointed out that the incident had occurred some fifteen months earlier and that the claimant had had what she described as multi opportunities to raise the matter in the meantime or ask for the photograph to be deleted. Having investigated the matter Ms Pearce found that the claimant had been fully aware that the party were heading to Canal Street and he had told Ms Pearce that he knew Manchester very well and frequently visited friends there. Ms Pearce went on to explain that all the staff she had interviewed were aware of the claimant’s religious background but that the claimant’s religious beliefs had not been apparent. They had been aware that he drank alcohol, did not pray during working hours and did not eat Halal meat. She went on to write: “it is apparent from these accounts that you chose to live a secular life”

9.30 Referring to the home visits Ms Pierce acknowledged that the claimant had been extremely unwell and had been suffering from severe anxiety and PTSD. However, she did not believe there was any causal relationship between his health and the incident in Manchester. She believed that he had been a willing participant in the events of that evening. The grievance was not upheld. The claimant was advised that he had a right of appeal.

9.31 On 12 March 2018 the claimant did appeal and he wrote a lengthy letter setting out his grounds. A copy appears between pp 190 to 194 in the bundle.

9.32 The grievance appeal hearing took place on 21 March 2018 before Mr D McDonald. Notes again taken by Ms Mitchell of UNISON are at pages 195 to 198 and we also have the transcript of the audio recording of that hearing, which is at pages 370 to 396.

9.33 On 6 April 2018 Mr McDonald wrote to the claimant setting out the grievance appeal outcome. This letter runs to ten pages. Mr McDonald described the caption to the photograph and some subsequent comments on What’s App (which latter it seems the claimant had not in fact complained about) as boorish, although he did not believe they were malicious. On this point he upheld the appeal and offered the claimant an apology. He disapproved of the banter. Whilst he accepted that the claimant had been offended, he did not accept that he had been discriminated against. Mr McDonald implied that the claimant had only decided to raise a grievance against Ms Tummon after she had been the successful candidate in the redundancy selection process. Having carefully considered the matter, Mr McDonald’s conclusion was that apart from the apology referred to above the grievance appeal failed.

[10]Claimant’s Submissions The claimant made oral submissions to us. He reminded us that he had presented the case on his own. On the disability status issue, he pointed out that the respondent’s counsel was not a doctor and so could not make the decision. In relation to the harassment complaint the claimant said that problems had been caused by the November 2016 incident and he had let his family down. In respect of the unfair dismissal complaint, he suggested that the respondent’s witnesses had not given straightforward answers to us and in fact that their statements were false. The claimant had worked for the respondent for many years without problems. The claimant went on to tell us, for reasons which we do not really understand, that he had in the past supported the Police but he could not tell us what the link was. He then went on to tell us for the first time about incidents which had led to him suffering from Post-Traumatic Stress Disorder. These were circumstances entirely unconnected with work. The claimant went on to refer to his friendship with the Mayor of Sheffield and the support the claimant had given to his local community. He then went on to tell us something of his family history and the achievements of his siblings. At this point the Employment Judge indicated that the Tribunal did not think that the direction in which the claimant was headed in these submissions was now going to be in any way helpful for the Tribunal in determining the issues which were before it.

[11]Respondent’s submissions11.1 Mr Dyal had prepared a skeleton argument and written closing submissions. He addressed us orally as well. He acknowledged, as the Judge had pointed out, that a time point referred to in the written submissions in relation to the reasonable adjustments complaint had not actually been pleaded. However, it was agreed that this was a matter which the Tribunal would now need to consider. Mr Dyal felt that the transcripts of the grievance hearings were revealing because there was not the slightest suggestion that the claimant had raised a grievance at the time of the Manchester incident. He had done no more than say that he had told Ms Pearce about the November 2016 events during home visits. Mr Dyal went on to suggest that the claimant had been extremely evasive as to whether he ever drank alcohol. He went on to note that during cross examination the claimant had, for the first time contended that there had not been a consultation meeting on 11 or 12 January 2018 when he realised that he had not signed what purport to be the notes of that meeting. There was also extremely evasive and contradictory evidence as to whether or not the claimant had received the dismissal letter.

11.2 Being taken to the gay bar was not unwanted conduct. The claimant was a grown man on a night out and we were invited to find that he knew that the group were going to the so called Gay Village. However, Mr Dyal accepted that posting the captioned photograph was unwanted conduct but he denied that in any way related to the claimant’s race or religion. Mr Dyal also acknowledged that comments made during the grievance process about the claimant’s observance of Islamic customs was also unwanted and did relate to religion, but not race. However, a feature of the claimant’s grievance had been that it was inappropriate for him to be taken to Canal Street because of his religious beliefs and associated racial background. It followed that it was relevant when investigating that grievance to consider whether there was any prior indicator of religious observance on the claimant’s part, with the conclusion that there was no such indicator. It had not violated the claimant’s dignity to investigate the extent of his religious observance for the purposes of the grievance investigation. If the claimant had taken offence, that offence was not objectively reasonable.

11.3 Mr Dyal went on to submit that having regard to the timing of the claimant’s grievance there was a strong inference, which should be drawn, that he had subsequently greatly overstated the significance of the events in Manchester as a form of retribution for Miss Tummon’s entirely unrelated success over him in the redundancy process.

11.4 Whatever view was taken of the Manchester incident, there could in any event be no vicarious liability for the respondent because the conduct was not in the course of employment.

11.5 It was also contended that the first of the two complaints of harassment, that in relation to Manchester, had been presented out of time and there was no continuing conduct.

11.6 In relation to the claimant’s disabled status, the respondent accepted that he had suffered from PTSD from 2013 and that was plainly an impairment. However, there was, Mr Dyal contended, no evidence of any impact of that impairment on day to day activities during the relevant period. The medical records which the claimant had disclosed were not complete. In any event the respondent did not know of any disability and Mr Dyal pointed out that the claimant’s own GP was of the opinion that he was not disabled.

11.7 There was nothing in the medical evidence before the Tribunal to suggest that the claimant was at a disadvantage in following the process that was adopted for the redundancy. The claimant could have informed the respondent that the interview had been or would be problematic because of mental health reasons but, despite having union assistance at the material time, did not do so. It was suggested that that was because the claimant had not had any such difficulties. The fact that the claimant had performed poorly at the interview was not an indicator of anything, because everyone had good and bad days.

11.8 As to the unfair dismissal complaint, it was plain that redundancy was the reason for the dismissal because there was obviously a redundancy situation. There had been no “over-arching desire” to get rid of the claimant. His suggestion that there was a conspiracy to get rid of him was not based on any cogent evidence. If the claimant had been told by Ms Tummon that she had already been told that she had the job on 17 January 2018 that would surely have featured in the claimant’s subsequent grievance, but it did not.

[12]The Tribunal’s Conclusions12.1 Was the claimant a person with a disability at the material time? The material time in the circumstances of this case means the second redundancy process, which was begun in January 2018. We have before us the report from the claimant’s GP, Dr Brown. That report dated 17 February 2017 is at page 122 in the bundle. Within it the diagnosis of Post-Traumatic Stress Disorder dating back to 2013 is confirmed. The report goes on to say that the claimant had high levels of anxiety with low mood and disturbed sleep. The Tribunal have also considered the claimant’s GP records, especially those for consultations during January 2018. These are at pages 228 to 229 in the bundle. We have also of course taken into account the claimant’s impact statement. Whilst some of the effects the claimant refers to are stated as applying when the statement was written, we have taken the view that, as suggested by the claimant’s GP notes, those effects were also being experienced at the material time. We have also taken into account the likely recurrence of the substantial adverse effect, having regard to the nature of the impairment. Taking all these matters into account and by reference to the Equality Act 2010, Section 6 and Schedule 1 we find that at the material time the claimant was a person with a disability as defined by the Act.

12.2 The Reasonable Adjustments Complaint Whilst acknowledging that a time issue has been raised with regard to this complaint, for reasons which will become clear below, we are assuming for present purposes that we do have jurisdiction. It is common ground that the respondent’s Organisational Change Policy (redundancy policy) is the relevant provision, criterion or practice (PCP). The claimant’s case is that the operation of that policy during the January 2018 restructure put him at a substantial disadvantage because it exacerbated his ongoing anxiety and stress. As we have noted, he says that reasonable adjustments would have been to give him coaching prior to the competitive interview in order to boost his confidence; that the duration of the redundancy process should have been extended and that allowances should have been made because the claimant had been absent from work for four months at the beginning of 2017. We note however that at the material time he had been back at work for some eight months. On the evidence which is before the Tribunal it appears that the claimant was at some disadvantage because of his performance at the 17 January 2018 competitive interview. We have noted that he only scored 13 out of 25 in respect of questions which were about or relevant to his current job and indeed a job he had been doing for some time. As far as we are aware, no performance issues have hitherto been raised with the claimant. His colleague Ms Tummon scored 20 out of 25.

12.3 The knowledge Issue The Equality Act 2010 Schedule 8, paragraph 20 provides that an employer is not subject to a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that the employee is disabled, or that the employee is likely to be placed at a disadvantage. The respondent says that it had knowledge of neither of these matters.12.3.1 Knowledge of Disability We find that Ms Pearce had had close contact with the claimant during his 2017 absence, including four home visits. The report of Dr Brown, the claimant’s GP was commissioned by the respondent and is addressed to them. We note that within that report the doctor says that at that stage the claimant’s condition could not be described as a disability. However, we also note that that is not conclusive of the issue which is before us. We also note that the respondent had first-hand experience of seeing the claimant at work on a daily basis. In the grievance outcome letter, when addressing the likely cause of the claimant’s health problems (in the context of the Manchester incident) it is noted that the claimant had been “extremely unwell and suffering from severe anxiety and PTSD”. We find that in these circumstances the respondent could be reasonably be expected to know that the claimant had a disability.

12.3.2 Knowledge that the claimant was placed at the disadvantage The claimant, as we have noted, had been back at work for some eight months following the absence which began in December 2016. His phased return to work in April 2017 had been successful. In a performance review on 8 May 2017, and therefore a month after his return (see page 137) the claimant said that he still needed support but went on to thank Ms Pearce and another manager for their “ongoing support”. In the performance review for 7 December 2017 (page 138) which was therefore just before the redundancy process began, the claimant again thanked management. He felt that Mr Shutt, the Service Manager was there to help him. The claimant wrote:- “I always if I need anything Danen (Mr Shutt) responds (sic) with no negativity always there for me”. The claimant went on to say that he had been supported and felt valued. He went on to say that he was lucky to have Ms Pearce as a manager and he thanked her for her support. Despite expressing these sentiments, during the redundancy exercise the claimant made no approach to either of these two managers or for that matter, to anyone else at the respondent, for support or coaching or more time. As we have noted there was the standard question in the consultation meetings about support, which does not seem to have elicited any response from the claimant. (see page 148). In the circumstances we find that the respondent did not know and could not reasonably be expected to know that the claimant was likely to be placed at the disadvantage by the redundancy process. Accordingly, we find that the reasonable adjustment complaint fails. In those circumstances obviously, there is no further need to determine the jurisdictional issue.

12.4 Harassment12.4.1 The 2016 Manchester incident. We conclude that we do not have jurisdiction to deal with this part of the harassment complaint. It was presented significantly out of time and we do not have before us any material to suggest that it would be just and equitable to extend time. Further, we do not accept that the respondent could have any legal liability for any alleged harassment on the night of 6 November 2016. This was a purely social outing, organised by the employees themselves and had only the most tenuous connection to work. The respondent was no doubt unaware that some of it’s employees had decided to travel to Manchester at the weekend and on the day before the staff conference. As we have noted those employees, including the claimant made and paid for their own travel and accommodation for the Sunday night. Even if we had jurisdiction to determine the harassment issue in relation to Manchester we would have not found there to be unlawful harassment. We agree with the respondent that going to the gay bar was not unwanted conduct. The claimant did so voluntarily and on the balance of probability we consider that he must have known that the area of Manchester in question was known as the Gay Village. The claimant could have declined to go on after the restaurant meal and could have left the party whenever he wished. We would have found the captioning and uploading of the photograph to be unwanted conduct but in our judgment, it would not have been conduct which was related to race or religion. Whoever did the captioning could not have had in mind either race or religion as the basis for this supposedly humorous comment. It was directed at the two colleagues and if it was related to any protected characteristic, it was not related to either of the protected characteristics on which the claimant bases his complaint.

12.4.2 Harassment in relation to the grievance outcome and comments about the claimant’s religious adherence. We find that we do have jurisdiction to deal with this matter which of course arises much later than the Manchester incident itself. The particular comments the claimant complains about are those set out in Ms Pearce’s grievance outcome letter of 7 March 2018 (pages 186 – 187) and include her finding that the claimant chose to live a secular life. We find that having interviewed the others present on the Manchester trip, Ms Pearce properly concluded that the claimant’s religious beliefs were not apparent to the rest of his team because of the way the claimant had conducted himself, both at work and on that evening. Whilst that may have been unwelcome for the claimant to read, it was he who had raised those beliefs as the reason for the grievance against Ms Tummon. Viewed in that light the comments were not unwanted because by raising the grievance the claimant had in effect invited an enquiry into the level of his observance of the tenets of Islam. Even if the conduct was unwanted, we find that the respondent did not have the purpose of violating the claimant’s dignity although we might add that concluding that the claimant had chosen to live a secular life was a step too far because obviously Ms Pearce and the rest of the team could not be sure precisely how the claimant conducted himself when not in work. Nevertheless, if either that comment or other findings in the grievance outcome letter had the effect of violating the claimant’s dignity we find that it was not reasonable for that to be the case. Such comments as the secular life comment would reasonably have been viewed as being in the context of his colleague’s impressions of the claimant at work. We therefore find that this part of the harassment complaint also fails.

12.5 Unfair Dismissal We find that the respondent has shown the potentially fair reason of redundancy. Redundancy is one of the potentially fair reasons set out in the employment Rights Act 1996 at Section 98(2). We then have to go on to consider whether that was an actually fair reason in all the circumstances of the case and by reference to Section 98(4) of the same Act. We find that there was adequate consultation. We have noted that the claimant only suggested that there was no meeting on 11 or 12 January 2018 whilst he was cross-examining the respondent’s witnesses. This is not referred to in the ET1 or his witness statement. If the claimant was right in this contention it would mean that the notes we have seen at page 146 had been fabricated by the respondent. We do not find that that serious allegation is made out. Nor do we find that there is any evidence that the respondent had an “overarching desire” to get rid of the claimant. The claimant’s suggestion that there had been a done deal and that others knew the decision as to who was going to get the remaining ETC job prior to 22 January is again not borne out by the evidence. We do not find the redundancy procedure to have been a sham. We have noted that using the competitive interview method was permitted by the respondent’s Organisational Change Policy and it was not unusual to use it. Although the claimant had alleged that his scoring was “unreasonable” he has never really explained to us why that was allegedly so, apart from the fact that Ms Tummon scored higher marks than him. There is no suggestion that the interview panel had done anything other than mark the two candidates as they found them on the day. In these circumstances we have found the unfair dismissal complaint also fails.

The Evidence

[1]The normal time limit for making an application for a reconsideration is within 14 days of the date on which the Judgment was sent to the parties or within 14 days of the date that written reasons were sent, if that is later.

[2]In this case written reasons were requested by the claimant and those were Employment Tribunal’s Rules of Procedure, Rule 71, any application for reconsideration should have been made no later than 23 May 2019. However, the application now made by the claimant is over 22 weeks after that date.

[3]Whilst the claimant does not specifically say why his application is so late, he refers to mental health issues including stress and depression. However, this is a passing reference and he does not explain in any more detail the reason for the delay.

[4]Under Rule 5, the Tribunal has power to extend time. However, I do not consider that there are any valid grounds for an extension of time in this case. That is because of the lack of an adequate explanation by the claimant; the very lengthy delay and because, as set out below I do not consider that the application for reconsideration has any reasonable prospect of success in any event. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 1808316/2018

[5]The claimant’s email of 29 October 2019 sets out various criticisms of the Tribunal’s decision. It appears that the claimant simply disagrees with the Tribunal’s Judgment and now wants the case to be re-heard. That is not the purpose of a reconsideration. The interests of justice require certainty. The claimant’s case was heard over three days and the Tribunal’s reasons for finding against the claimant have been fully documented and explained.

[6]If anything, the matters set out in the claimant’s email are matters for appeal which the claimant could have put before the Employment Appeal Tribunal, although he may find that he is out of time there as well. The decision as to whether or not time should be extended would of course be a matter for the Employment Appeal Tribunal.