(1) The complaints of disability discrimination identified in the Claimant’s table of particulars served on 5 June 2019 (‘the table of particulars’), boxes (1)- (13) (ie all complaints based on events prior to 2017) are struck out under the Employment Tribunals Rules of Procedure 2013, r37(1)(e).(2) At all times material to the complaints of disability discrimination summarised in the table of particulars, boxes (14)-(18) (which include, at box (18), that added by amendment pursuant to the Order below, para (1)) (‘the surviving complaints’), the Claimant was, by virtue of an autistic condition, disabled within the meaning of the Equality Act 2010, s6 and schedule 1. ORDER (1) The Claimant’s application to amend the claim form to add the complaint summarised in the table of particulars, box (18) is granted. (2) No later than 4 September 2020 the Claimant shall deliver to the Respondents’ representative and copy to the Tribunal the further information requested on behalf of the Respondents in their representatives’ document dated 10 June 2019, paras 4.14-4.18 inclusive, save to the extent that the request is for documentary evidence.1(3) On or before 18 September 2020 the Claimant shall deliver to the Respondents’ representatives and copy to the Tribunal a schedule of all remedies claimed in the proceedings.(4) No later than 25 September 2020 the Respondents shall deliver to the Claimant amended grounds of resistance incorporating all grounds on which the claims as clarified under para (2) above will be resisted.(5) On or before 2 October 2020 the parties shall exchange: (a) lists of all documents which are, or have been, in their possession or control and which are, or may be, relevant to any issue in the proceedings including, for the avoidance of doubt, any document which may not assist the disclosing party’s case and/or may assist the opposing party’s case; and (b) copies of all listed documents.(6) A preliminary hearing for case management shall be held at 10.00 a.m. on 4 December 2020, with two hours allocated.(7) The parties shall cooperate to agree a common bundle of documents for use at the hearing referred to below (‘the hearing’), primary responsibility for its preparation resting with the Respondents. The form of the bundle shall be finalised no later than 15 February 2021 and one copy supplied at once to the Claimant for his own use. At the hearing the Respondents shall produce five further copies of the bundle for the Tribunal’s use.(8) On or before 1 March 2021 the parties shall exchange witness statements in the names of all witnesses (including the Claimant) whom they intend to call to give evidence at the hearing. Every witness statement shall: (a) be typed in double line spacing; (b) be laid out in short, numbered paragraphs; (c) set out the relevant events in chronological order, with dates; (d) contain all the evidence which the witness is called to give; (e) exclude any matter not relevant to the issues to be determined; (f) state the source of any information not acquired at first hand; (g) be signed and dated. At the hearing the parties shall produce four further copies of every witness statement exchanged pursuant to this direction. Except with the special permission of the Tribunal, no witness may be called at the hearing unless a statement in his/her name has been prepared and delivered to the opposing party in accordance with the above directions.(9) A final hearing of all liability issues shall be held at 10.00 a.m. on 26 April 2021, with three consecutive sitting days allocated.[1]Such evidence would, however, be disclosable under para (5) in any event. NOTES:(1) Any person who without reasonable excuse fails to comply with an Order to which section 7(4) of the Employment Tribunals Act 1996 applies shall be liable on summary conviction to a fine of £1,000.00.(2) The Employment Tribunals Rules of Procedure 2013 (to which any reference below to a rule refers) provide by rule 6 that if an Order is not complied with, the Tribunal may take such action as it considers just, which may include waiving or varying the requirement, striking out the claim or response (in whole or in part), barring or restricting a party’s participation in the proceedings and/or awarding costs.(3) You may apply under rule 29 for this Order to be varied, suspended or set aside.(4) Where reasons have been given orally on any disputed issue, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. OBSERVATIONS[1]I gave oral reasons for the above adjudications, to the extent that they were in dispute. As a result of my decisions summarised in the above judgment, paras (1) and (2), it was agreed that any time-based jurisdictional defence must be addressed at the final hearing.[2]The hearing for case management arranged for 4 December 2020 should not be necessary. The surviving claims are not complicated and will be further clarified under my order, para (2). There should not be a dispute about disclosure. Identification of relevant categories of document should not be difficult. Nor should arrangements to conduct a suitable and proportionate search for documents in those categories. I hope that the parties will co-operate to implement my directions in such a way that the 4 December hearing can be vacated and further intervention by the Tribunal avoided.[3]I was quite narrowly persuaded to permit three days for the final (liability- only) hearing. The four-day allocation proposed by Mr Gray-Jones seemed to me entirely disproportionate, even allowing for the fact that suitable adjustments in favour of the Claimant may include more breaks than normal.[1]The listing for 26-28 April 2021 in this matter is vacated.[2]The Hearing (liability only) will now take place over four days between 23 and 26 November 2021.[3]The Respondent is permitted to rely on the evidence of Mr Muscatt at the reconvened Hearing. A variation to the Witness Order requiring Mr Muscatt to attend the Hearing on 24 and 25 November 2021 is made under separate cover.[4]The Respondent is ordered to pay £3,999.00 towards the Claimant’s costs by no later than 24 May 2021.
REASONS
[1]This is a claim for disability discrimination, lodged by the Claimant on 31 December 2018. It has been the subject of several Preliminary Hearings (PHs) at which Case Management Orders were made. The Hearing listed for 26-28 April was adjourned after the first morning. Written reasons for the decisions made on that first morning were requested on behalf of the Respondent.[2]The most recent of the PHs, so far as is directly relevant for the purposes of this decision, was on 4-5 August 2020, before EJ Snelson. EJ Snelson made Orders in the usual terms for the provision of a schedule of loss and for disclosure by list and copy documents. The Respondent was ordered to supply the Claimant with a bundle by no later than 15 February 2021. The Orders continued: 1 This has been a remote hearing which was consented to/not objected to by the parties.[3]EJ Snelson also appended the usual notes at the foot of the Order confirming that pursuant to Rule 6 of the Rules of Procedure 2013, if an Order is not complied with, the Tribunal may take “such action as it considers just”, which may include the awarding of costs. Further, he confirmed that the parties were at liberty to apply under Rule 29 to vary, suspend or set aside the Order. No such application was made by either party.[4]It is unclear when the case was listed for the three days starting on 26 April 2021, but at an open Preliminary Hearing before EJ Spencer on 1 February 2021, it was confirmed that it remained listed for those dates. EJ Spencer also noted: “If the particulars provided by the Claimant remain unclear, the Respondent may, no later than 16 February 2021, apply for an order for sequential (rather than simultaneous) exchange of witness statements”; this was a reference to particulars that she had ordered the Claimant to provide no later than 9 February. It appears that he did so and that they were not “unclear”; at any rate, there was no (further) application by the Respondent for sequential exchange of statements. Accordingly, the date for mutual exchange remained 1 March 2021.[5]On 19 April 2021, the Respondent’s solicitor Mr Brown sent the Tribunal an email attaching the witness statements of the Claimant and his two witnesses, an agreed bundle of documents and the Claimant’s “supplementary” bundle. There was no witness statement from the Respondent nor any suggestion that one was to be forthcoming.[6]However, on 23 March 2021, Mr Brown on behalf of the Respondent had made an application for a Witness Order for a Mr Muscatt, a former manager of the Respondent who had left the organisation in November 2019. It stated that Mr Muscatt had “…confirmed on 22 March 2021 that he will not attend the Hearing unless the Respondent agrees to compensate him for an arbitrarily high figure…”. There was no discussion of any witness statement having been prepared by or for Mr Muscatt.[7]The Witness Order had been granted by Employment Judge Baty and sent to the Respondent on 20 April. In accordance with usual practice under Rule 32, neither the Respondent nor the Tribunal had copied in the Claimant to the correspondence associated with the Order, nor the Order itself. The Order required Mr Muscatt’s attendance on 27 and 28 April, it being envisaged that the first day of the Hearing would be taken up by the panel reading in to the papers and the Claimant’s evidence.[8]The Hearing began as listed shortly after 10.00 on 26 April 2021 via CVP. Just as the Hearing was starting on 26 April, the Tribunal panel received an email forwarded by the London Central main inbox and sent from the Claimant, attaching a cast list, chronology, case summary and a document entitled “application note”, said to be “A note from the Claimant in respect of the Respondent’s application to rely on the witness statement of Luis Muscatt”. This was followed, some minutes later, by an email from Mr Brown forwarding a message he had sent to Mr Kibling for the Claimant at 14.00 on 23 April (i.e. the working afternoon before the Hearing) attaching that witness statement and a copy of EJ Baty’s Order.[9]After the hearing “ground rules” had been dealt with and the Tribunal had satisfied itself we had all relevant documents, we took the question of the late-served statement as a preliminary issue. There was no formal application by the Respondent before the Tribunal, nor was any of the inter partes correspondence exhibited, but extracts from what we conclude was the relevant documentation was contained in Mr Kibling’s note and no challenge was made by the Respondent to the contents of those extracts.[10]In essence, it was Mr Kibling’s contention that the statement of Mr Muscatt should be excluded entirely and, consequently, the Order for his attendance revoked. In the alternative, he asked that the Hearing be vacated and re-listed, with costs for the Claimant. The panel adjourned to read Mr Kibling’s note, before returning to hear submissions from both Counsel and then deliberating on the decision in private once more. It is unnecessary to set out in great detail the content of Mr Kibling’s note or the parties’ oral submissions, but in summary, he said that the Respondent’s (assumed) application was:a. In breach of EJ Snelson’s Order;b. Contrary to well-established legal principles (in preventing tactical presentation of evidence or where the same would cause embarrassment or prejudice to a party);c. Contrary to Presidential Guidance, the overriding objective and CPR; andd. Prejudicial to the Claimant, if allowed.[11]The (main) reason why it was said the application would be prejudicial to the Claimant was on the basis that Mr Muscatt’s statement asserts for the first time, on the working day before the Hearing that, among other points, the Claimant had “been asked to leave [the Respondent] because of issues with his honesty and reliability”. It was asserted that the Claimant did not “voluntarily leave or resign” but was “pushed”, and that this resulted from the Claimant on numerous occasions breaking trading limits imposed. Mr Muscatt further asserts that the Claimant lied to him personally and had lost the trust of “management”. He states that a Mr Rad was the manager of the desk on which the Claimant worked at the time.[12]Mr Rad is not a witness who was being called by either party. Given the imminence of the Hearing, the Claimant had had no opportunity to call any evidence, whether from Mr Rad or anyone else, to rebut these assertions of his trustworthiness and the circumstances of his departure from the Respondent. The Respondent’s pleaded case was that the Claimant had “resigned”, without more. There was no reference at all in the final or indeed earlier iterations of the response to any alleged dishonesty or misconduct on the Claimant’s part while he was employed by the Respondent. It has been consistently asserted by the Respondent that the reasons why he was not later re-employed was to do with the fact that he had been working outside the specific market for years, so his that knowledge and experience “began to atrophy” and his skills had fallen behind those to be found in candidates with up-to-date and real-time experience of the current market and relevant financial products.[13]Mr Muscatt asserts however that his lack of trust in the Claimant was at least part of the reason for not recommending the Claimant for a role in 2014 and that other individuals at the Respondent shared that mistrust. Again, the Claimant has had no opportunity to seek a statement from those named by Mr Muscatt, who included a Mr Balax. Further, at paragraph 8 of the revised grounds of resistance, it was asserted that Mr Muscatt had very limited (or no) knowledge of job applications made by the Claimant between 2017 and 2019, but (and it is unclear whether this is a typographical error) in his statement, Mr Muscatt confirms that he “had a say” in who was hired for one position in 2017 and that he discussed the Claimant’s candidature with Mr Balax.[14]The panel was in agreement that it was clearly right that Mr Muscatt’s evidence should be heard by the Tribunal. As asserted by the Respondent, that evidence is pivotal to its defence of the case, because when looking at the complaints that have been permitted to proceed, Mr Muscatt is personally named as an alleged perpetrator, if not the only one, in them all. The prejudice to the Respondent of refusing the application would have been great and far outweighed the prejudice to the Claimant if the Tribunal allowed Mr Muscatt’s evidence in. Our decision therefore came down to whether to push on with the Hearing as listed or to adjourn and allow the Claimant to consider his position in relation to any additional/rebuttal evidence well in advance of any reconvened dates.[15]Even if the answer from any witness approached by the Claimant is that they cannot remember because the evidence in question relates to events of 2017, 2014 or even earlier, it seemed to us to be in the interests of justice to allow the Claimant to try to locate them and to seek answers from them. Quite clearly, this could not have been done in a single working afternoon after service of Mr Muscatt’s witness statement (when, we were told, Mr Kibling was attending hospital; we heard no further details of that) but before the virtual Hearing. We were not satisfied that the prejudice to the Claimant of the late submission could properly be countered merely by asking him supplemental questions in chief.[16]To the extent that “special permission” was required for reliance on Mr Muscatt’s statement (pursuant to EJ Snelson’s Order of 5 August 2020), the Respondent’s position was that the Claimant would also require such permission for all his witness statements since they were also not exchanged in accordance therewith. It seemed to us, looking at the chronology set out in Mr Kibling’s note (which, as noted above, contained extracts from the inter partes correspondence though we did not have the email exchanges themselves) that this completely missed the point, in addition to the Respondent being unable to draw our attention to any prejudice by the late service of the Claimant’s statements. Non-compliance with Orders is not excused on a tit-for-tat basis.[17]The chronology in question was as follows:a. On Monday 15 March 2021, Mr Brown wrote to the Claimant saying he was “happy to exchange on Wednesday” (i.e. 17 March);b. On Tuesday 16 March he wrote again saying “I am now unlikely to be in a position to exchange statements tomorrow as suggested. Would you be agreeable to exchanging at 3pm on 26 March…?”;c. As noted above, on 22 March it appears Mr Muscatt conveyed his refusal to attend the Hearing voluntarily and on 23 March, Mr Brown applied on behalf of the Respondent for a Witness Order compelling him to do so. He did not inform the Claimant of his communication – he was not obliged to do so, but clearly it should not have been a surprise to the Claimant given that he would surely have been expecting Mr Muscatt to attend in light of the “pivotal” nature of his evidence – and nor did Mr Brown make any reference to the now considerable delay in exchanging witness statements. As noted above, he made no reference to the fact that the witness statement for Mr Muscatt had not been finalised nor indeed did he refer to the Orders of EJs Snelson and Spencer. Victory House having been closed since midDecember, the administration and judiciary had no access to the physical file. It therefore seems unlikely that the full correspondence or prior Orders were before EJ Baty when he granted the Witness Order on 20 April;d. At 14.30 on 26 March, the Claimant emailed Mr Brown asking if he was ready to exchange or if he required more time. Mr Brown responded minutes later asking the Claimant to send his statements by return and saying, “I do not have any witness statements to exchange with you”.e. On 9 April 2021, the Claimant emailed Mr Brown again and asked him to confirm(i) that the Respondent did not intend to call any witnesses, and(ii) that he would not make any application to call witnesses once the Claimant had provided his witness statements. Otherwise, the Claimant said, “you would be conducting litigation by ambush and not in accordance with the overriding objective”.f. On 12 April 2021, Mr Brown responded: “I can confirm that at the date of this email the Respondent has no witnesses for the hearing and therefore no witness statement(s) to exchange. However, I am unable to confirm that my client will not make any application after you provide me with your witness statements because I must reserve its position in case your statements contain evidence relating to, for example, complaints or alleged facts which have not been previously mentioned by you. In such a scenario my client may wish to apply for leave to admit evidence to deal with such specific matters. This is standard practice”.g. By email on 14 April, the Claimant reminded Mr Brown that the Respondent had sought sequential exchange at an earlier PH but had not been given it. Nonetheless, on 16 April he emailed his witness statements to both Mr Brown and to Mr Zovidavi, Counsel for the Respondent.h. Mr Kibling sought by email and phone on 21 and 23 April to agree a provisional timetable for the Hearing with Mr Brown and/or Mr Zovidavi, without success. Notwithstanding the Respondent had by now received EJ Baty’s Witness Order, Mr Kibling was not informed of the Respondent’s intention to call Mr Muscatt or put on notice of the pending service of the witness statement, even in a phone call with Mr Zovidavi shortly before midday on 23 April, in which Mr Kibling specifically referred to the fact that he had never previously been involved in a case where the other side called no witnesses. Mr Zovidavi made no comment in response.[18]Mr Kibling posed a number of questions in his note, of which few, if any, were answered satisfactorily by the Respondent in the Hearing, as to the late service of Mr Muscatt’s evidence and the lack of notice given of the Respondent’s intentions in this regard. Mr Zovidavi informed the Tribunal that Mr Muscatt was co-operating “up until the day before the Witness Order was sought” (i.e. until 22 March 2021). He did not explain why, in that case, Mr Muscatt’s witness statement was still in the process of being drafted, three weeks after the date that EJ Snelson had ordered for exchange, notwithstanding the intervening passage of some eight months and despite its brevity.[19]Mr Zovidavi was initially unable to confirm whether the person who was assisting Mr Muscatt in the drafting of his witness statement (the panel gathers this was Mr Brown) had read himself and/or shown to Mr Muscatt the Claimant’s witness statements before Mr Muscatt’s own statement was finalised. At the very least, the panel would have expected Mr Brown to be able to confirm categorically that he had not read or even opened the statement before Mr Muscatt’s was completed, particularly when the Claimant’s statements had also been forwarded directly to Mr Zovidavi at the same time as they were sent to Mr Brown; there was no need for Mr Brown to read them and every professional reason for him not to do so. He could not give that assurance, though during the Hearing he did forward the final version of Mr Muscatt’s statement with tracked amendments from the first, to demonstrate that it had not been changed in response to receiving the statements from the Claimant.[20]The panel was also not satisfied with the assertion that the email from Mr Brown on 12 April 2021 was a straightforward and truthful exposition of the situation as it pertained to the Respondent on that date. It was, at best, disingenuous, at worst outright misleading. We do not accept that the first and second sentences should be read disjunctively. The message’s clear implication was that the Respondent was not proposing to call any witnesses unless the Claimant’s own statement(s) disclosed new complaints or alleged facts, in which case the Respondent would “apply for leave” to admit evidence in relation thereto. Mr Zovidavi accepted that no such application had been or was being made, the Claimant having disclosed no new complaints or alleged facts in his witness statements. The late service of Mr Muscatt’s statement bore no correlation to the late service of the Claimant’s statements whatsoever.[21]Accordingly, the Tribunal considered unanimously that it was just to award the Claimant the costs of Mr Kibling’s attendance at the Hearing on 26 April 2021, pursuant to Rule 6 and/or Rule 76 of the ET Rules of Procedure 2013. The Respondent has not complied with EJ Snelson’s Order. It would be disproportionate to strike out the response in whole or in part, or to bar or restrict its participation in the proceedings. We concluded, as we have said, that the prejudice to the Respondent of being unable to rely on Mr Muscatt’s evidence was far greater than that to the Claimant of allowing it; but we have considerable sympathy with the assertion that the manner in which it has gone about adducing it amounted to “litigation by ambush”.[22]A costs order may be made where the Tribunal considers that either a party has acted unreasonably in the way that part of the proceedings have been conducted (Rule 76(1)(a)) and/or under Rule 76(2) (where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party). In the Tribunal’s view, the Respondent’s non-compliance with the Orders was unreasonable. It directly led to the necessity for the postponement of the Hearing, and with it, a delay of seven months, contrary to the overriding objective.[23]We accept that Mr Muscatt is no longer an employee of the Respondent, but he remained its employee until many months after the claim was lodged. The Respondent has been represented throughout and it must have been clear to all concerned that Mr Muscatt was its key and indeed, as it has transpired, only witness. It has had eight and a half months to take a witness statement from Mr Muscatt since the Order. We still do not know when that process began or why a comparatively short witness statement (five pages of double-line spaced evidence, excluding headers and footers and apparently finalised on only its second draft) could not have been completed and served until so late in the day.[24]That unreasonable non-compliance on the part of the Respondent has led to the Claimant incurring costs while legally represented on 26 April 2021. Those costs were agreed at the figure of £3,999.00 inclusive of VAT, and we made an order in that amount, payable within 28 days.[25]We made no order for the Claimant’s loss of earnings, which was raised by the Claimant himself rather than by Mr Kibling on his behalf.[26]We also made no order for the remaining days of the Hearing, because we have extended it to four days, to take account of Mr Muscatt’s attendance and a possible further witness for the Claimant. If the Respondent had complied with the Order of EJ Snelson on 1 March, or even been ready for mutual exchange on either of the later dates offered by Mr Brown on the Respondent’s behalf, there would have been no ambush; the likely need for a fourth day to complete the Hearing would probably still have arisen such that the listed dates would have to be vacated; but that could have been dealt with by a short further telephone PH (Case Management) or even on the papers following a written application at no cost to the Claimant.[27]Limited Case Management Orders as to the production of further witness statements in the case are set out in a separate document. The potential consequences of non-attendance at the reconvened Hearing should be impressed on Mr Muscatt to the greatest extent possible. He should be reminded of the potential penalties for a failure to comply (a conviction and fine under the Employment Tribunals Act 1996, with the likely consequent professional ramifications). All witnesses who produce a witness statement are expected to attend a Hearing unless the other side indicates there is no challenge to their evidence, otherwise reduced, or no, weight may be given to their evidence; and no witness shall be permitted to give evidence without having served a witness statement in accordance with the Tribunal’s Orders save in exceptional and unforeseen circumstances.
Law
[28]During the course of his evidence, the panel endeavoured to elicit from the Claimant any conduct that had given rise to the specific comments set out in paragraph 19 above. The Claimant was able to provide only two examples:a. As referred to in the claim form and noted above, the Secretary, or “EA”, saying that the Claimant was “very strange” and on one occasion when he walked past her desk she said, “Even the way you walk is strange”. The Claimant said he believes he was giving her a wider distance than others did; andb. The Claimant and another colleague, Ms Soluja, were at the vending machine and she asked how the Claimant was doing. The Claimant described the conversation as “awkward” and says that she then said to him, “The way your brain works is very strange” (it is unclear whether Ms Soluja is the same colleague who is referred to at paragraph 22 above). The Claimant moved out of her sight and overheard her thank a third colleague for “rescuing” her from the Claimant; he now believes that she may have given a non-verbal cue that she did not want to talk to him which he had not picked up on, as he has since been told that this may have been a frequent situation.[29]The Claimant also said that Mr Muscatt did not invite him to a social event at the Soho Windmill nightclub that Mr Muscatt organised and paid for. In cross-examination however, the Claimant said that a colleague told him to come along in any event, but when Mr Muscatt saw the Claimant, he came over and asked “What are you doing drinking my drinks? It’s my broker, not yours; if you want a night out, do it with your guy”. This does not suggest that the reason why Mr Muscatt failed to invite the Claimant out for this event was related in any way to his disability.[30]The Claimant did not give us any examples of occasions when he was called “psychotic”, “mad”, “bizarre” or “extremely odd” or the circumstances leading up to those comments. Nor did he say who had used the words. We have therefore had to look at the evidence of others, and the contemporaneous exchanges between his colleagues, both internally and with those in other organisations, to ascertain what the Respondent ought reasonably to have known up till the Claimant’s diagnosis. Mr Hammacher’s evidence[31]It is the Respondent (Mr Muscatt)’s evidence that the Claimant did not stand out. The Claimant contends that this was simply not so and relies on the evidence of Mr Hammacher to support his contention that he has “social style and communication differences”.[32]Mr Hammacher’s evidence is certainly that the Claimant had a “pattern of social tendencies that seemed … to be so highly unusual that his 2018 diagnosis of autism provided some context and background to his style”. Mr Hammacher says that the Claimant routinely misreads social situations and then responds inappropriately to his own misguided interpretation of what has happened. He gives an example of the Claimant upsetting a manager at their rowing club and then failing to accept his own actions or apologise for them; he says the Claimant in fact made inappropriate comments, blamed the manager and walked away. Mr Hammacher says that the Claimant also made inappropriate comments in their social group at university to the point that he was given the nickname “Gobsmack”. The Claimant also refers to this and to the play on his surname “Oddfrey”.[33]Mr Hammacher continues that the Claimant will, when confronted about such behaviours, generally react by brushing off the incident and ignoring the social sensitivities involved. He observes that in a pub with strangers this may be “passable” but in a “long-term social situation” it has had an impact on the Claimant’s relationship with their group. In a structured training environment however, as a member of a nine-person team (we infer this is the rowing team), Mr Hammacher says the Claimant was able to cope very well and in a one-on-one or one-on-two situation, he finds the Claimant to be “an engaging person”. He says that the Claimant becomes withdrawn and quiet in group social situations and again throws in inappropriate comments.[34]In oral evidence, Mr Hammacher confirmed that he has only ever seen the Claimant in social rather than professional situations, though he said he would be surprised if the Claimant’s unusual behaviour socially did not transfer itself to the workplace. Mr Hammcher said that the Claimant can be construed as very rude because when people raise his behaviour with him, the Claimant just laughs them off – the Claimant has often not realised an issue has been caused in the first place, let alone whether or not somebody has been offended.[35]Mr Hammacher also explained that he is a qualified medical doctor though he has not practised for 15 years. He told us that he is very cautious about trying to identify a diagnosis in people he knows personally or professionally outside the medical context; it is not the role he does now. He said he had never thought about the Claimant’s symptoms and behaviours and whether there might be a potential diagnosis, though when he heard the diagnosis, Mr Hammacher repeated that this had fitted nicely with the Claimant’s patterns of behaviour. Mr Hammacher never felt it appropriate to suggest to the Claimant he might seek an assessment, though he said the thought of it occurred “at the back of his mind”; however, he balanced it with the fact that the Claimant had got himself into and through university and was then employed in a high-performing job in the City. Mr Hammacher did not feel it was his place to question whether the Claimant should go and seek some advice. Mr Muscatt’s evidence[36]Mr Muscatt’s witness statement says that he found the Claimant slightly arrogant and that he did not take instruction well, as one should when one is being trained, though Mr Muscatt said he did/does not see slight arrogance as necessarily a bad trait and nor did he feel the Claimant was “different from anyone else”. What he said both in his witness statement and in oral evidence however is that there were trust issues with the Claimant: while the Claimant did not breach the Respondent’s rules to the point that he was the subject of disciplinary action and/or did not fail to meet the FCA’s “fit and proper” requirements, he did fail to adhere to internal trading limits that Mr Muscatt and Mr Rad imposed on him. He said it was his understanding that the Claimant had been dismissed (or “pushed” or “asked” to leave on agreed terms) as a result of the risk that such behaviour presented to the Respondent. As we have noted above in paragraph 1, this is not the Respondent’s pleaded case, which confirms that the Claimant’s employment terminated as a result of his resignation. Written evidence while the Claimant was employed by the Respondent[37]We note that Mr Muscatt is evidently mistaken in asserting that the Claimant was dismissed from the Respondent and/or left pursuant to a compromise/settlement agreement; Mr Muscatt indeed acknowledged that he knew none of the details and it is clear that this was his assumption which is not supported by the facts. We have therefore looked very closely at the documentation and specifically the correspondence – both contemporaneous with the Claimant’s employment and after he had left the Respondent – to see if there is evidence that Mr Muscatt or anyone else at the Respondent had any constructive knowledge of disability that might cause us to disbelieve Mr Muscatt’s evidence.a. In January 2008, the Claimant’s review from Mr Lynch, then head of Delta Trading where the Claimant was working, described the Claimant as “obviously a smart guy” but that he needed to accumulate more business knowledge. The Claimant himself said on the review form that during the latter part of 2007, he had developed core relationships, skills and abilities;b. In May 2008, an email shows that Mr Welzel “put his hand up” for the Claimant to work with him;c. On 12 February 2009, there was an exchange about the Claimant between two unknown participants. One asked the other, “What’s [the Claimant] like?” The response is “irritating (plastic) spoon”. There was no further discussion of the Claimant; the conversation in the bundle appears to conclude with discussion of a trade that the Claimant had offered. The original of this document has been redacted so that it has not been possible to see who said what, and we accept that it has been impossible to identify them. However, Mr Muscatt has accepted that he did sometimes refer to the Claimant as a “spoon”. We return to this point below.d. In August 2009, Mr Muscatt, a colleague from the Respondent (Mr Devic) and a trader from Rabobank were participants in a Bloomberg chat, though in fact Mr Muscatt contributed nothing to the conversation. The other two men appear to have been making arrangements to meet socially as well as discussing a trade. At one point Mr Deen, from Rabobank, asked “opinions on [the Claimant]?” Mr Devic replied after a few other sentences about their social meeting: “Richard is young and our colleague”.e. Another potentially relevant Bloomberg chat took place in April 2010, though we gather with no relevant participants from the Respondent’s management team. Two traders from the Respondent (Mr Hogan and Mr Russell) were initially discussing another colleague called Patrick with a Mr Searle-Barrett from Tradition Financial. Since Patrick/Pat had not arrived at work by 06.45, they call him a “lazy German c…” They were joined by another Tradition trader, Mr Barrett, and continued to discuss Pat’s non-arrival and the amount of alcohol consumed the previous evening, including by other colleagues referred to only as Henry and Sam. It appears that those on the chat were older than those they were discussing as they referred to “Youth”. Eventually Mr Searle-Barrett said, “U know that Rich geez from your place? Appaz Sam and Rich in club with shirts OFF dancing!!!!!” Mr Hogan replied at 07.34, “hahahah oh dear … he [the Claimant] not in either” to which Mr Barrett said “Nice lad but a TAD strange”. Mr Hogan agreed: “… nice enough but a bit odd I think” and Mr Barrett said, “yes indeed”. Mr Russell said, “Take you at odd”. It appears that the Claimant and Mr Barrett were not otherwise known to each other at the time, because Mr Barrett asked the Claimant’s surname.f. We have a memo from October 2010 between a Mr Choudrie and Ms Hawes from HR, apparently anticipating Mr Welzel’s departure from the Respondent. Mr Choudrie, whose job title in another email was given as Flow Delta Business Manager, said that he had spoken to the Claimant the previous day about his objectives and that the Claimant “seems to have the right attitude”; he was “left feeling [the Claimant] has been very poorly managed historically”. A week later, Mr Rad apparently told Mr Choudrie that they were expecting the Claimant to resign. Ms Hawes commented in another email exchange “Not good”, to which Mr Choudrie responded, “Not good short term… but allows opportunity to bring it [sic] new talent…”.[38]We accept that those participating in the above conversations would not have known that their words would be scrutinised so carefully by an Employment Tribunal many years later and thus they would be likely to be unguarded. This is supported by the fact that they do make reference to other protected characteristics: there is more than one reference to the Claimant’s (and others’) age, for instance, and in the Bloomberg chat in August 2009, Mr Devic and Mr Deen are joking about the former hating Italians, though he nonetheless says he will probably marry one, while in April 2010 there is swearing and a reference to requirements of the job being “taken lightly by the foreigners”.[39]As regards the February 2009 email, we have noted that while it is not possible to be sure who the participants are, Mr Muscatt has accepted that it may well have been he who called the Claimant an “irritating (plastic) spoon”. He agreed in crossexamination, and we so find, that he used the word “spoon”, short for the phrase “born with a silver spoon in his mouth” – in other words, a reference to class – by contrast with his own situation, which he said led others to call him “Del boy” because he had been born and grew up in Peckham. The Claimant appeared indeed to accept that the “spoon” reference was unrelated to his disability.[40]In relation to the chat in April 2010 the Claimant explained that “take you at odd” is a broking term suggesting that the participants were creating a market for just how odd he was. However, we note the context of this was a discussion about how the Claimant had behaved in a social setting with another trader, specifically dancing until nearly 04.00 in a night club with their shirts off. This conflicts directly with the assertions in Mr Hammacher’s statement that the Claimant’s reaction to group-style social situations is to become withdrawn and quiet and also with the Claimant’s particulars of claim in which he observes that impacts of Asperger’s include “overwhelmedness” and sensitivity to “… light, sound, background noise”.[41]We do not accept that this isolated incident, outside work when the Claimant was with some apparently junior colleagues, clubbing and continuing socialising with those from another establishment including dancing into the early hours of the morning with his shirt off, would have been sufficient to put the Respondent on notice of the Claimant’s disability. Written references to the Claimant being “odd” or “strange” are restricted to this one short conversation and in the context that the Claimant himself said they had been drinking/were “obviously drunk”.[42]If the Claimant’s behaviour in the workplace itself was such as to give rise to comment, we have seen no evidence of that, or that anyone thought it was. On the contrary, he was described, as we noted above, as showing “good attitude”. He said in cross-examination that he was told he was not integrating and that a “particular boss” (not named) told him to “walk over to the sales desk and be present in front of them, remind them they have 50 products to sell and push yours”. On being prompted to do so, the Claimant says that is what he did. There is no suggestion in the documentation that his interpersonal skills were other than what the Respondent was looking for or expecting, and certainly nothing in line with Mr Hammacher’s evidence of the Claimant being “very rude” sometimes, save for (probably) Mr Muscatt’s reference on one occasion in early 2009 to the Claimant being “irritating”. The majority does not accept that finding someone irritating and/or slightly arrogant is sufficient to put a colleague on notice that they have a disability.[43]The minority panel member disagrees, on the basis there is no context given, and believes that if context had been given, it would have been possible to attribute these comments to the Claimant’s disability.[44]In his supplemental witness statement, the Claimant said he was providing a line manager review from 2018 in which it was said that he had “a tendency to not inform seniors of what he is doing”. There was no page reference, and this document may not be in the bundle before us, but even assuming that this is a direct quote, we consider this would not be sufficiently unusual, even taken with somebody being irritating, to alert an employer to the fact that an employee is a person with Asperger’s or to make enquiries about an autistic spectrum disorder. He also said that he had a bundle showing defamatory remarks, including “dummschnurrer” or “retard”; however, he agreed in cross-examination that these alleged quotations were not in the bundle before us and were not made by anyone who had been at the Respondent while the Claimant was working there.[45]The Claimant further alleged in his statement that Mr Muscatt used to call him “sensitive”; however, he did not give any context for this. While Mr Muscatt did not recall doing so, he fairly accepted that he might have done. In the absence of such context, we do not accept that an employee being sensitive would lead an employer to consider that they had Asperger’s. In similar vein, Mr Muscatt also does not recall asking the Claimant at an evening event on an unknown date if he “heard things or saw things” (inferentially, that the Claimant was hallucinating) though he does not deny that he may have done; but again, absent any context for such a question, even if it was asked, it does not lead us to the conclusion that Mr Muscatt found or should have considered the Claimant’s behaviour to be consistent with Asperger’s. Written evidence after the Claimant left the Respondent[46]We have set out above all the relevant conversations in which the Claimant was mentioned during the period when he was employed by the Respondent. Thereafter, there were occasional discussions about him as follows:a. In April 2011, Mr Porter from Porta (we were told this was another interdealer broker) sent Mr Muscatt a message saying “Had a drink with [the Claimant] last night… said to say hello”. Mr Muscatt’s very brief response was “Cool… always knew he’d do well”.b. Three months later, Mr Porter again messaged Mr Muscatt. This time he said: “Alright mate, How U doing? Had a chat with a certain Rich Godfrey earlier. Send his regards and wants to know when U fancy a few beers?” Mr Muscatt replied, “Mate, he’s so tight he’d never buy a beer! When you next see him let me know and I’ll try and get along”. Mr Porter responded again with, “Ha haa. Says he’s gonna bring his wallet. Fat chance! We are out next Weds/Thurs. Get yourself along. Will be in the city.” Mr Muscatt concluded the conversation with “Lunchtime? Evenings tricky now as kids back training”.c. In November 2012, Mr Benbow, who we were told was acting as a recruitment agent for the Respondent and who had the Claimant on his books, emailed Mr Rad to say that the Claimant had been put at risk of redundancy and wanted to get Mr Rad’s “take” on him. Mr Rad’s response was short: “Richard is a nogo!”. He made no further comment.d. Similarly, in January 2013, in a chat between Mr Rad and someone (Mr Michelotti) at Jefferies International, over an hour into the conversation, Mr Michelotti asked “BTW do you know this guy Richard Godfrey?” Mr Rad replied, Yes… is he joining u guys now?” Mr Michelotti said, “he contacted me… what u think about him? he is good?”. There was no answer from Mr Rad and eventually Mr Michelotti left the chat.e. In March 2013, Mr Rad participated in a chat with Ms Simeon of Louis Capital Markets. The conversation started at just after 08.30 and continued sporadically until just before 14.15. Mr Rad was discussing his own position, both domestically and professionally. Shortly before the conversation ended, Ms Simeon asked, “BTW what’s happened to Richard Godfrey? I saw he is out the Calyon [i.e. Credit Agricole]”. Mr Rad replied, “that’s a long time ago”. Ms Simeon pressed him and Mr Rad continued “well, he is trying to find a job. But jobs are hard to find for guys like him”. Ms Simeon persisted, saying that nobody wanted to tell her, but Mr Rad said he was not the right person to ask. Ms Simeon said that Mr Poli (who we heard had been transferred in to become the Claimant’s boss at Credit Agricole and had, according to the Claimant and Mr Horne, taken over the Claimant’s trading book) was her neighbour but would not tell her what happened. Mr Rad eventually said “If [he] does not comment why should I? Change of subject…”. The conversation ended shortly thereafter without further reference to the Claimant.f. The following month, Mr Muscatt had a Bloomberg chat with Mr Wong, then of Ignis Investments. The chat started just after 09.00 and towards the end of the conversation 20 minutes later, Mr Wong said, “Oh was trying to IB Richard Godfrey on IB to say hi… I can’t find him on Bloomberg!” Mr Muscatt replied: “He left Calyon a few months back”. Mr Wong asked, “Oh… where is he going next?” Mr Muscatt said, “Still looking for somewhere I think”. Mr Wong said, “there isn’t much around I think” to which Mr Muscatt responded, “yes, can be pretty tough right now I think”. Mr Wong suggested, “He could go back to RBS!” and Mr Muscatt replied “Hmmm… not sure that’s an option”. There was a single further exchange on an unrelated topic before the conversation ended.g. A week later, the Claimant emailed Mr Muscatt and asked if he would be free for a “very quick catch-up drink”. Mr Muscatt suggested they meet the following day. He addressed the Claimant as “mate” in his emails and the Claimant responded “Brill, many thanks”. It appears they did meet on 16 April 2013 because two days later, the Claimant emailed Mr Muscatt again to thank him for lunch. (A similar email was sent by the Claimant on 16 January 2015 thanking Mr Muscatt for drinks the previous day, though we did not have any exchange prior to that occasion).h. In October 2013, Mr Muscatt and Mr Devic, who it seems had by then moved to Commerzbank, participated in a Bloomberg chat in which Mr Devic referred to having seen the Claimant having lunch with a Mr Dreesbach, who it appears was a mutual acquaintance working at WestLB. Mr Devic suggested it was “very odd to see them together” and asked what the Claimant’s last name is. Mr Muscatt said “Godfrey” and when Mr Devic said he thought the Claimant was still at CA (Credit Agricole) Mr Muscatt said, “No, got dusted over a year ago”. Mr Devic replied, “Oh, very odd encounter then”. The conversation moved on to other topics, including reference to it being easier to use nicknames for people, but without any further discussion of the Claimant. There is no suggestion in this chat that the nicknames the Claimant says he was called by his friends were also used by colleagues in the Respondent’s workplace.i. In June 2014, Mr Muscatt had a conversation on Bloomberg with Mr Squire of Canadian Imperial Bank, in which Mr Squire said he had heard from the Claimant the previous week and added, “Shame he’s out again, I actually liked him… not like Dan Stevens”. Mr Muscatt replied, “Ha… they both space cadets… I don’t get most youngsters these days” to which Mr Squire said, “And when I do it costs me plenty”.j. Five months later, the Claimant and Mr Muscatt exchanged pleasantries on Bloomberg. Mr Muscatt greeted the Claimant with “Hola amigo, how’s it going?” and they went on to discuss the Claimant’s job search. Shortly afterwards, in another Bloomberg chat, this time with Mr Balax, another of the Respondent’s senior traders, there was a discussion where it is unclear what triggered the conversation but Mr Balax said, “Godfrey waso [sic] onto me but Alex doesn’t trust him at all … I don’t think you do either”. Mr Muscatt replied, “I am open minded re Rich… but I am not going to be putting my balls on the line and saying we should hire him”. Mr Balax responded, “Hear you, to me it’s either 100% trusted or not – can’t take chance”. Mr Muscatt said, “I’m not even sure HR would allow us to hire him” and Mr Balax agreed, “You’re right probably not”.k. Indeed in December 2014, Mr Winward, then Head of Credit Trading Teams at the Respondent, emailed a colleague to say of the Claimant, “Have met him previously, not the right fit for RBS unfortunately (risk issues and no support from RBS people that do know him)”. In the same month, Mr Muscatt and another colleague at the Respondent had a Bloomberg chat in which the colleague Mr Gillespie said, “So, man, wanted to see if I cud [sic] advocate for rich godfrey getting rehired…I’m a big fan”, to which Mr Muscatt replied, “Have mentioned him mate, but not sure he’ll get though HR… not sure either yet whether they will sign off on an external hire…”. Mr Gillespie said he totally understood before adding that four of them in the San Francisco office would like to see the Claimant hired, and Mr Muscatt replied that they were not alone and that he would “continue to push”.l. In March 2017, Mr Balax and Mr Muscatt had an exchange over a Microsoft platform. Mr Balax told Mr Muscatt that the Claimant was being approached, probably by a headhunter to return to the Respondent, to which Mr Muscatt responded merely “Hhmm.” Mr Balax replied, “Ahah. Oh well. I keep eyes open for others”. Mr Muscatt’s only response was, “Yes ok”. The following month, Mr Benbow told the Claimant that Mr Konrad, at the time Head of the Respondent’s EGB and SSA/Cov teams, had “done internal due diligence and came back saying no – sorry”.[47]In relation to the “space cadet” comment (paragraph (i) above), we heard that Mr Stevens is now Mr Muscatt’s boss and that he does not share the Claimant’s disability. Mr Muscatt said he used the phrase “space cadet” as a jovial comment to describe young people who enjoy going to the pub and getting drunk. We accept that this was not a reference to the Claimant’s disability.[48]It is clear overall that Mr Rad and Mr Muscatt were not prepared to gossip or make negative comments about the Claimant. In particular, Mr Rad’s chat with Ms Simeon in March 2013 contained intimate personal details about Mr Rad’s own life which we have no doubt he would not have wanted to share in a public forum despite knowing the conversation was being recorded; and he is said to have behaved in an openly offensive manner to a colleague with a physical impairment so we considered it likely that he would not have been inhibited in referring to the Claimant’s Asperger’s. Just as in all the other chats however, there is no reference at all to the Claimant’s mental health or the impact of his condition. We find that it is inherently unlikely, based on the Claimant’s evidence about Mr Rad’s behaviour in the workplace, that Mr Rad would have refrained from making reference, even indirectly, to the Claimant’s manner or the impact(s) to which his condition gives rise, had they been noticeable to Mr Rad.[49]We have considered whether we can draw any inference on constructive knowledge from the limited virtual conversations before us. We have concluded that we cannot. The references that Mr Muscatt makes to the Claimant “not getting through HR” also do not suggest that his concerns are based on any interpersonal issues with the Claimant or alarm over the Claimant’s behaviour when he previously worked for the Respondent; on the contrary, they continued to correspond and, as we have noted, met at least twice for a meal and/or drinks. Mr Horne’s evidence[50]Mr Horne said in his statement that he worked extremely closely with the Claimant at Credit Agricole/Calyon from January 2011, i.e. immediately after the Claimant worked for the Respondent. He described the Claimant as “very erudite and fluent … also comfortable holding detailed discussions with both senior investment managers and issuers”. However, he also describes the Claimant’s mood swings, being noncommunicative, offhand and abrupt during the early part of the day, suddenly returning to “normal” later on.[51]We have considered whether this would have been replicated at the Respondent. We conclude that it would not. The circumstances were quite different. Mr Horne also explains that the job at Credit Agricole put the Claimant under a great deal of pressure, running singlehandedly a global book that had hitherto been run by two traders. Further, the Claimant covered the Japanese and Chinese markets overnight before starting a ten-hour trading day in London. He was frequently – and unsurprisingly - arriving at work “frazzled and showing all the signs of stress”. This contrasts with the Claimant’s work at the Respondent, where the hours and pressures were nothing like as great; Mr Horne agreed in cross-examination that at the Respondent the Claimant was part of a fairly large team where he would have been supported, whereas he had no support at all at Credit Agricole. Therefore we do not consider the Claimant’s workplace demeanour at Credit Agricole relevant to indicate what he might have been like at the Respondent; and Mr Horne did not work directly with him there so was unable to assist in that regard. Hypothetical outcome[52]Further, and in line with A Limited v Z, we have briefly considered what the outcome might have been if management or HR personnel at the Respondent had observed the Claimant’s differences, taken more account of them and realised that they might be the result of a mental impairment or autistic spectrum disorder, as Mr Horne says colleagues did at Credit Agricole.[53]As we have noted, the Claimant says in his witness statement that he has a bundle of documents showing “defamatory remarks” about him and that people who have never met him gossip about him in a slandering way. He repeated some of these hurtful comments in his oral evidence. Since we did not have any of these documents in the bundle that was before us, or any understanding of the context in which these remarks were made or by whom (though we infer that at least one was from someone at Nomura), we indicated that we were unable to take this evidence into account.[54]We say we have only briefly considered this aspect because as we have set out above, the majority of the panel concluded that there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. It would be unreasonable to expect an employer without such training to do so, given that Mr Hammacher, who has known the Claimant for many years and observed him in social situations where his behaviours have manifested themselves, and who is medically qualified, not to have done so. Further, as the majority has found, the Claimant’s behaviour was undoubtedly exacerbated while at Credit Agricole as a result of the extreme stress and long hours, leading to him becoming, as he described it, “burnout, depressed and paranoid”.[55]The Claimant’s evidence in cross-examination was that his job was not to “sit and talk”, it was rather to assimilate information and make inherently technical decisions. He did not see that lacking the skills of a “social raconteur” were necessary and indeed, it appears that for the most part, prospective and indeed actual employers agreed. The Claimant has had a number of jobs, for all of which we may safely assume he has passed at least one interview. His behaviours apparently do not normally manifest during those interviews (save in one example he gave, to which we return below) to cause employers to repel him. He also told us that on one occasion he had got through to a “final round” of interviews but had become nervous and not presented well, so he did not secure the role. That is entirely in keeping with behaviour for somebody who does not share the Claimant’s disability.[56]We find by a majority (without making any criticism of him) that in any event the Claimant would have been resistant to an assessment. Until he had his breakdown, the Claimant did not seek medical advice. This was notwithstanding, on his own evidence, contemplating in 2015/2016 a possible medical explanation for the adverse treatment he felt he was receiving and despite, he said in cross-examination, every recruitment agency he worked with during the relevant time suggesting that he should undergo a psychiatric evaluation.[57]Further, the Claimant told us in oral evidence of an incident in or around 2014 when he was sent to Copenhagen to undertake an interview process with Nordea, a Danish bank. He had passed a phone interview in advance and then spent six or so hours in interviews in person. The final interview was with a prospective manager and a psychologist; the manager turned his chair away and the psychologist asked a number of inter-personal questions. The Claimant told us he became very distressed and could not remember things because he was so upset. Eventually he could not deal with the questions any longer, at which point he was asked, quite curtly, to leave and told he did not have the job. Despite being mentally disturbed by what had occurred, and apparently reflecting at that time whether he might have any “conditions”, and although this had led to him being rejected for a role in such difficult circumstances and at a time when he told us he was making an effort to find employment, the Claimant had not progressed those thoughts to the point where he acted on them.[58]We return to the minority conclusion on this point below. Evidence relating to Mr Rom Balax[59]Finally, we have considered whether there is any evidence to support the Claimant’s proposition that after he had told Mr Balax of his diagnosis in or around late 2018, Mr Balax told Mr Muscatt and that they thus had actual knowledge from that date. For this, we have had reference to the entire WhatsApp transcript between the two from November 2016 to January 2021.[60]This proposition starts from the basis that the Claimant did in fact tell Mr Balax about his diagnosis and that Mr Balax was listening and heard him when he did so. We cannot place the precise date on which this is said to have occurred. It is not specifically referenced at all in their WhatsApp chat. In his witness statement, the Claimant says that his log indicates the call took place on 16 August 2018 and that he told Mr Balax that he had been diagnosed with “mental health issues and about the challenges [he] faced”. However, two days earlier in the chat, the Claimant had said he had “a question to do with a matter with FCA" (presumably, the Financial Conduct Authority) on which he thought Mr Balax would have a “good perspective”.[61]It appears that in fact they did not speak until mid/late September or even early October 2018, given that on 9 October, the Claimant messaged Mr Balax to say, “Thanks for speaking the other day”. He then asked if he could meet Mr Balax later that week for “an Sonia transition catch” [sic] and would like to bring a colleague. There is no further detail on this, and on 11 October, the Claimant simply messaged “thank you”. It was more than two years before any more exchanges between them took place.[62]The Claimant says in his witness statement that on 11 October 2018, when he called Mr Balax, the latter was “off-hand and brusque” and acted as though he was scared to talk to the Claimant. The Claimant says he believes telling Mr Balax of his disability and the challenges he had faced had back-fired so that Mr Balax was afraid to talk to him and did not encourage him in re-applying to the Respondent. Elsewhere in his witness statement, the Claimant says again that he discussed his “mental health diagnosis” in both September and October of that year and that Mr Balax became “suddenly non-receptive”.[63]In his oral evidence, the Claimant’s position was not so clear-cut. He acknowledged that perhaps he had been confused about the date he spoke to Mr Balax and that it might have been that he spoke to Mr Balax about the problems he was having at Aviva, or perhaps they spoke in 2018 once the Claimant had a label on his diagnosis. He was insistent however that Mr Balax was “short, curt and brusque”, answering him in monosyllables, not answering the Claimant’s calls or messages and refusing to engage with him. The Claimant said Mr Balax’s attitude “changed markedly” and his demeanour was “totally different” after he told Mr Balax of the diagnosis.[64]These assertions are not sustainable on the evidence in the bundle. Every single exchange prior to autumn 2018 is prompted by the Claimant contacting Mr Balax, often trying to arrange a meeting. His attempts are frequently rebuffed by Mr Balax, either with a reason (e.g. January and February 2017) or (e.g. October 2017 and January 2018) by simply not answering the Claimant at all. It is clear that Mr Balax did make time for a short meeting (30 minutes) at the Claimant’s request in December 2016 and again – on the Claimant’s evidence, after he had told Mr Balax of his diagnosis – in October 2018. In 2020 and 2021, when the Claimant started to contact Mr Balax once more, the responses are certainly not noticeably different in their tone or content from prior to that date.[65]In any event, the Claimant himself contends in his witness statement that there was what he calls a “string of truthless rhetoric” to him from Mr Balax over many years. For instance, he says he felt “fobbed off” by Mr Balax in November 2016 when the latter wrote “Move on do something else while you can”. He contends that in March 2017, Mr Balax and Mr Muscatt “ridicule(d)” him, although in fact we have set out at paragraph 46(l) above the substance of their exchange. In his witness statement the Claimant says, “in early 2018 Rom Balax was ignoring all my attempts to contact him [and] ignoring all my messages”. However, on his own account, he had not told Mr Balax of his diagnosis by then.[66]It was of course open to the Claimant to call Mr Balax as a witness. Whether or not the Claimant told Mr Balax of the diagnosis, and if he did so, when that was, is nonetheless something of a moot point because there is literally no evidence that Mr Balax told Mr Muscatt. It is speculation on the Claimant’s part, denied by Mr Muscatt. We accept that denial. There is also no evidence that Mr Balax really listened to or took in what the Claimant was telling him about his diagnosis. It seems unlikely that he did absorb the detail and/or if he did, allow it to affect their relationship, given the similarity of their exchanges before and after the alleged disclosure.[67]Further, though the Tribunal is not required to make alternative substantive findings, in the absence of actual or constructive knowledge of disability on the Respondent’s behalf, as to the reason why the Respondent behaved as it did, the repeated references to HR and to “risk” tend to suggest that it was Mr Muscatt’s (mistaken) belief that the Claimant had been required to leave the Respondent via a compromise/settlement agreement. While it does appear (and we so find) that Mr Muscatt was prone outwardly to supporting the Claimant after he left the Respondent– including going out for drinks with him at least twice - though with marked inward reservations, the evidence simply does not suggest to the majority of the panel that Mr Muscatt or anyone else knew or could reasonably be expected to know that the Claimant had a disability. As EJ Spencer noted, considering somebody to be odd or inept at social interaction does not, without more, confer knowledge of a mental impairment that amounts to a disability. Nor does considering them to be slightly arrogant or sensitive.[68]The Claimant says in his witness statement that he “strongly believe(s) they were aware of [his] mental impairment, discussed it and were looking for excuses to block [him]”. We infer that by “they”, he means Mr Muscatt, Mr Rad and Mr Balax. On the balance of probabilities however, the majority finds that they were not aware of his Asperger’s and nor would it have been reasonable to expect them to be. Minority conclusion on constructive knowledge[69]The minority panel member notes that in EJ Snelson’s decision on the preliminary issue of whether the Claimant is a disabled person within the meaning of the Equality Act, there is a reference to the report of Dr Mike Smith, consultant forensic psychiatrist, dated 5 September 2019, that was before the Tribunal on that occasion. This report, which was not before us, apparently indicated on the strength of a detailed history that Dr Smith took from the Claimant that the Claimant has “persistent deficits in social communication and social interaction across multiple contexts”. Since the Claimant’s disability is a lifelong condition, it is concluded that he did not possess techniques to manage his condition until his disability was diagnosed in September 2019 whereupon he started receiving NHS care.[70]The minority panel member has also had regard to the evidence of Mr Hammacher, as set out above, including the fact that Mr Hammacher expressed the view that the Claimant’s behaviour in a social context would have been transferrable to the workplace environment, entirely in line with Dr Smith’s reference to “multiple contexts”. The minority panel member notes that Mr Welzel’s statement refers to making “adjustments” for the Claimant and the Claimant himself saying in his witness statement that he accepts “some allowances” were made for him during the course of his employment, this point not being challenged in cross-examination. (It is to be noted however that Mr Welzel, who, as we have set out above did not give oral evidence, did not provide any further details of what “adjustments” he allegedly made or why).[71]Additionally, the Claimant’s social deficits were visible to Mr Horne who said in his statement that “Management could not have been unaware of these integration issues”. Mr Horne further says: “Discussions about his behaviour with other sales colleagues led us to conclude that Richard probably showed all the signs associated with bipolar disorder or autism …….”3. The minority panel member concludes that at Credit Agricole, the Claimant was working in a more supportive/accommodating environment than was the case at the Respondent and, subsequently, at Aviva.[72]The majority view however is that in line with Mr Horne’s evidence, the Claimant, who (Mr Horne said) “tried as much as possible to be on standby 24/7” was given no support at all at Credit Agricole so that, as concluded above, his behaviour in that environment sheds little or no light on what his behaviour might have been like at the Respondent.[73]The Claimant describes his time working at Aviva in his statement. The minority panel members observes that it seems his social deficits were visible to his colleagues and to HR. According to the Claimant, HR threatened to put him on a Performance Improvement Plan (PIP). The Claimant then had a nervous breakdown and was referred to Occupational Health, that referral leading ultimately to the diagnosis of his disability. The minority view is that the Claimant offered no resistance and was not masking his symptoms because even if he wanted to, he did not know how to. The minority panel member concludes that this answers the hypothetical question of what would have happened had the Respondent referred the Claimant to occupational health at the material time. 3 These were references to the Claimant’s work and his managers while he was at Credit Agricole[74]The majority view in relation to the hypothetical question is set out above. There was no “trigger event” while the Claimant worked at the Respondent that would have caused its managers to make the referral, which the majority considers the Claimant would have resisted. The authorities confirm that it is not incumbent on an employer to make every enquiry when there is little or no basis to do so.[75]Considering all the above, the minority conclusion is: the Claimant’s persistent social deficits would have been visible to the Respondent and such persistent deficits would have caused a distraction and/or distress to other staff. It is inconceivable to the minority panel member that the Respondent would not have known that such persistent deficits relate to some form of mental impairment, and it would accordingly have been reasonable for it to have known. Moreover, at the time, prior to the diagnosis, the Claimant himself would not have known anything amiss in his social behaviour. Had the Respondent initiated an investigation, the proper diagnosis of the impairment would have resulted as did happen in 2018. Therefore, it can be concluded, that the Respondent did have constructive knowledge because it cannot be said that the Respondent could not reasonably have been expected to know that the Claimant had the disability. Overall conclusion[76]Consequently, we find (unanimously) that there was no actual knowledge and (by a majority) nor was there constructive knowledge in the mind of the decision-makers at the Respondent.[77]In the circumstances, the claim fails and we do not go on to consider further the reasons why the Respondent did not invite the Claimant to interview for the relevant vacancies.[78]Nonetheless, we end with this observation: the opaqueness of the recruitment process in evidence before us is such that it wholly invites claims of this nature. It is contrary to the EHRC’s Employment Statutory Code of Practice. The complete lack of an open advertisement, clear and documented procedure and transparent competencies or interview process, will inevitably lead some to believe that it is a protected characteristic that has inhibited their progress, and understandably so. If it has not already addressed these inequities, unless and until the Respondent uses a fair process that is designed to eradicate prejudices against applicants, rather than potentially allowing or even encouraging them to be perpetuated, it appears very likely that claims will continue to be brought and will potentially be very challenging for the Respondent to defend.