Mr S Khakimov v Nikko Asset Management Europe Ltd: 2200247/2021 and 2202809/2020

EMPLOYMENT TRIBUNALS

Case No 2200247/2021, 2202809/2020

Between

Mr S KhakimovClaimant

Nikko Asset Management Europe LtdRespondent

Before

Employment Judge Stout

In person for claimant

Andrew Smith (instructed by counsel) for respondent

Date 7 November 2023

JUDGMENT

The judgment of the Tribunal is that the Claimant’s application for interim relief is dismissed.

REASONS

[1]This has been a remote electronic hearing under Rule 46 which has been consented to by the parties. The form of remote hearing was V: Fully Video. A face-to-face hearing was not held because of the pandemic and all issues could be determined in a remote hearing.

[2]The public was invited to observe via a notice on Courtserve.net. No members of the public joined. There were some connectivity issues - 1 - resulting participants having to repeat themselves and in short breaks in the hearing while participants rejoined.

[3]The participants were told that it is an offence to record the proceedings.

The issues

[4]The issues to be determined at this hearing were identified at the start as follows:(1) Whether the Respondent can rely on documents served on Friday;

(2) Whether the Claimant can bring an interim relief claim on the basis that the reason for his dismissal was that he had made protected disclosures (the Respondent asserts that no such claim is pleaded);

(3) If not, whether the Claimant should be granted permission to amend his claim;

(4) The Claimant’s interim relief application;

(5) The Respondent’s costs application.

Background

[5]Mr Khakimov (the Claimant) was employed by Nikko Asset Management Europe Limited (the Respondent) from 1 January 2013, latterly as Product Management Director, UK. He was off work on grounds of ill health from 17 April 2019.

[6]By a claim form (2202809/2020) received on 17 May 2020 (the First Claim), following a period of ACAS Early Conciliation pursuant to certificate R127435/20/10 the Claimant brought claims for race and disability discrimination, holiday pay, arrears of pay and other payments and detriment because of a public interest disclosure. The Respondent denies the claims, does not admit that the Claimant is disabled, and contends that the tribunal does not have jurisdiction to hear many of the claims because they have been presented out of time.

[7]There was a Case Management Preliminary Hearing (CMPH) on 2 December 2020 before Employment Judge Palca, at which orders were made to take the case to final hearing, including for disclosure of medical records and for further particularisation of the claim. The case was listed for a full merits hearing for 15 days from 5 to 25 January 2022 and for a two-day open preliminary hearing in public on 27 and 28 May 2021 to determine disability status amongst other matters, as set out in paragraph 5.3 of Judge Palca’s Order.

[8]With effect from 13 January 2013 the Claimant was dismissed by the Respondent, the Respondent says by reason of capability. By a claim form received on 19 January 2021 (2200247/2021) (the Second Claim) he brought claims the precise nature of which I have to determine in this hearing, but - 2 - which included unfair dismissal, race and disability discrimination. He claimed interim relief.

[9]On 19 March 2021 the Tribunal wrote to the Claimant (not copying the Respondent): Employment Judge Brown instructs that I write as follows: You have applied for interim relief. You appear to contend that your dismissal was an act of discrimination. As Mrs S Steer v Stormsure Ltd

UKEAT/0216/20/AT

(V) confirms, interim relief is not available in relation to a discrimination/victimisation dismissal. Please confirm what you say the reason for your dismissal was. Please reply by 24 March 2021.

[10]On 22 March 2021 the Claimant contacted ACAS again and ACAS issued a certificate the same day (ACAS EC Reference Number R123806/21/76).

[11]On 23 March 2021 the Claimant replied to Employment Judge Brown’s order in the following terms (so far as is relevant to the matters I need to decide today):- … as noted in my application there is an open legal claim with ET (Case No 2202809/2020), where one of the claim heads is "Retaliation for Protected Disclosure per 47B(1) ERA 1996". I contend that the Respondent's series of discriminations and victimisations up until the point of unfair and discriminatory dismissal on 13 January 2021 stem from that protected disclosure and subsequent chain of events over long period. Thirdly, on top administrative defficiencies, the initial case management decisions made by ET (Case No 2202809/2020) were made prematurely and without full consideration for my disability and overall negative impact of such decisions on the overriding objective of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which is to deal with cases fairly and justly, particularly in relation to (a) ensuring that the parties are on an equal footing and (d) avoiding delay, so far as compatible with proper consideration of the issues. As a result, original schedule for the final hearing was unnecessarily rescheduled from July 2021 to January 2022, which seriously prejudices my ability to stand on equal footing with the Respondent. Therefore, I request that interim relief mechanism be allowed as a step to rectify the case management to ensure that parties are able represent on equal footing. Finally, whilst it is true that EAT confirmed in the case of Mrs S Steer v Stormsure Ltd

UKEAT/0216/20/AT

(V), that ET and EAT are not equipped the decision of whether to extend interim relief to include discrimination/victimisation claims relating to dismissal (in order to avoid breach of EU law principle of equivalence, or of the

ECHR Article 14

, when read with Article 6.), EAT have held that there has been a breach of Article 14, it is appropriate to grant permission to appeal so that the Court of Appeal may have the opportunity to consider this issue and, if considered appropriate, grant the declaration of incompatibility which the EAT does not have jurisdiction to grant.

[12]There was another CMPH in the First Claim on 1 April 2021 before Employment Judge Elliott. Employment Judge Elliott did not have the Second Claim before her, and it had not at that stage been served on the Respondent. She made orders including for further and better particulars to be provided bt the Claimant by 1 June 2021, and for an unless order in respect of disclosure - 3 - of the Claimant’s medical evidence. She noted that the Claimant had received legal advice and suggested that he should consider seeking further legal advice to assist him with particularising his case.

[13]On 6 April 2021 the Tribunal wrote to the Claimant regarding the Second Claim (not copying the Respondent): Your email of 23 March 2021 at 21:41 hours has been considered by Employment Judge Elliott who notes that you rely on the reason for your dismissal being because of a protected disclosure. For this reason, an interim relief hearing will be listed. Please note that your claims for race and disability discrimination cannot go ahead in these proceedings because they require an Early Conciliation certificate from ACAS. The tribunal notes what you say about the case of Steer v Stormsure Ltd but at present the Employment Tribunal does not have jurisdiction to hold an interim relief hearing or give exemption from Early Conciliation claims for discrimination claims. It is only your whistleblowing dismissal claim that can be subject to an interim relief hearing.

[14]On 7 April 2021 the Tribunal served the Second Claim on the Respondent and sent Notice of the Interim Relief hearing. That Notice included the following orders: Witnesses will not be permitted to give oral evidence at the hearing unless the Employment Judge directs otherwise. If you intend to rely on any documents at the hearing you must send copies to all other parties not later than 3 working days prior to the hearing and bring 3 copies with you.

[15]On 13 April 2021 the Respondent wrote to the Claimant putting him on notice that it considered his interim relief application to be misconceived and warning him that it might seek to recover its costs if he proceeded with it. The email included the following:- We note that the Application has been made on the basis that your dismissal was automatically unfair due to discrimination (which the Respondent denies). The Tribunal does not currently have jurisdiction (i.e. the power) to make an Order for interim relief in such circumstances. Although the Court of Appeal is being asked to consider whether such a position is lawful in Steer v Stormsure Ltd (the case you refer to in your Application), that appeal is not due to be heard until after the hearing to decide your Application. Even if the appeal in Stormsure is successful, this will not lead to any immediate changes in the law. This means that the Tribunal simply does not have the jurisdiction to make an Order for interim relief in the circumstances.

[16]The Claimant provided the impact statement and medical evidence in the First Claim on 14 April 2021 as ordered by Employment Judges Palca and Elliott in the First Claim. The Respondent is considering those and they were not before me.

[17]On 21 April 2021 at 16:21 the Claimant submitted a witness statement and accompanying documents running to 193 pages. At 16:51 the Respondent - 4 - provided the Claimant with a hearing bundle running to approximately 170 pages.

[18]On 22 April 2021 the Respondent filed its ET3 and Grounds of Resistance in relation to the Second Claim.

[19]On Friday, 23 April 2021 at 18:36, the Respondent filed with the Tribunal, copying in the Claimant, a witness statement for Elizabeth Marks, Mr Smith’s Skeleton Argument and an amended version of the bundle, running to 216 pages. This included at least two new documents: the Respondent’s ET3 and Grounds of Resistance and the email warning Mr Khakimov that his interim relief application was misconceived. It may also have included some other changes. Mr Khakimov had pulled out of the bundle the documents that he said had changed and showed me on screen during the hearing. It was a small number. Adjustments for the Claimant and the conduct of the hearing

[20]At previous case management hearings, the Claimant explained that given his claimed disability, he was concerned that what he said may be misinterpreted because of his difficulty in expressing himself. He said he had difficulty with real time conversation and discussions. For this hearing, he requested by email of 24 April 2021 that “the hearing proceeds step by step and slower paced manner”. He also said at the start of this hearing that realtime and multi-layered thinking and conversation is difficult for him and as a result he loses track of his speaking especially when interrupted. He requested the parties to speak slowly step by step and in short sentences and allow him time to digest and take notes where necessary. He asked that we show patience while he was trying to speak. He said that he may have to interrupt other parties where necessary.

[21]I agreed to follow these ground rules and asked Mr Smith to confirm that he would to, which he did. I did, however, explain to the Claimant at the outset that if at any point I considered it was not possible to follow that approach I would let him know.

[22]I accordingly ensured that at each stage of the hearing I explained to the Claimant in simple terms what issue we were considering and I tried to identify for him, step by step, the points that he needed to address. For example, in relation to the question of whether he had pleaded a case of automatic unfair dismissal I identified for the Claimant that he needed first to point me to where he considered he had included that claim in his claim form and then to address me on why (if I did not agree with him) I should now allow him to amend his claim. I sought to guide the Claimant through his submissions on the substantive interim relief application in a similar way during the hour that the parties had agreed in advance the Claimant should have for those submissions. Then, when Mr Smith was making submissions, we took each stage of his submissions separately and I gave the Claimant an opportunity to respond after each ‘topic’. Thus Mr Smith made - 5 - submissions about the Claimant’s alleged protected disclosures and then stopped so that the Claimant could respond. He then made submissions about the reason for dismissal and stopped so that the Claimant could respond.

[23]Despite these efforts, it was not always possible to keep to the ground rules set by the Claimant. In particular, although I tried to avoid interrupting the Claimant and let him speak ‘off topic’ or read out documents for longer than I would normally do with a litigant in person, it was ultimately not possible to run the hearing within the time available (as the Claimant confirmed he wished to do as he did not want an adjournment) without interrupting the Claimant. The Claimant appeared when speaking to be unaware of the passage of time and often spoke at length on issues that were not relevant to what I had to decide. I therefore had to interrupt him and provide guidance as to the matters on which he needed to address me in order to ensure that he had a fair hearing and had the opportunity to address me on the relevant issues.

[24]During the course of the hearing, the Claimant frequently sought to interrupt Mr Smith as soon as he had started speaking, often in the middle of a sentence. Even when we had agreed that Mr Smith would take one section of his submissions at a time, the Claimant would say immediately Mr Smith started speaking “objection” or “lies” or “misrepresentation”. Mr Smith tolerated this behaviour with good grace.

[25]The Claimant also interrupted me on a number of occasions, including when I sought to give oral reasons for my decision on what documents to admit. He challenged me on various points and said that he did not understand my reasons, so I explained them again in shorter form and said that my full reasons would be set out in this written decision. After giving my decision on the admission of the additional documents, I offered the Claimant half an hour additional reading time, but he said that he only needed 15 minutes, which I agreed to. In the end, we adjourned for 20 minutes.

[26]Although the Claimant did, after warnings from me, stop his initial submissions on the interim relief application after about 1 hour and 15 minutes (15 minutes longer than he had agreed), in the afternoon, he insisted that he had to make more submissions to respond to the Respondent’s Skeleton Argument and Ms Marks’ witness statement, which I permitted him to do, though I sought to limit the time he spent on this and provided further direction as to relevance, explaining that the purpose of this hearing was to make a high level assessment of the merits of his automatic unfair dismissal case and not to consider the detail of all the claims. The Claimant was reluctant to accept my direction. In total, I estimate that the Claimant spoke for about 4 hours out of the 6 hours of hearing time that we had. - 6 - Issue (1): Whether the Respondent can rely on documents served on Friday

[27]Mr Khakimov applied to exclude from consideration at this hearing the documents that the Respondent had submitted at 18:39 on Friday 23 April 2021, the last working day before this hearing. For reasons which I gave orally at the hearing and indicated I would set out in this order, I decided, having regard to the over-riding objective, that the Respondent should be permitted to rely on those documents.

[28]The Notice of Hearing was emailed to the parties on 7 April 2021. This was the first notice the Respondent had of the second claim or the interim relief application. It provided that witnesses will not be admitted to give oral evidence at the hearing unless the employment judgment directs otherwise and that if you intend to rely on any other documents at the hearing, you must send documents to all other parties not later than 3 working days before the hearing. Having regard to the provisions of Rule 4(1), that required the parties to provide documents by midnight on Wednesday 21 April 20211.

[29]Both parties supplied their initial documents in accordance with that deadline.

[30]The Respondent then submitted further documents on 23 April 2021 at 18:36, the last working day before the hearing. The documents were: Ms Marks’ witness statement, Mr Smith’s Skeleton Argument and another version of the bundle. This included two new documents: the Respondent’s Grounds of Resistance, which had been prepared on 22 April 2021 (without any order to do so) and the email of 13 April warning Mr Khakimov that his interim relief application was misconceived. It may also have included some other changes. Mr Khakimov had pulled out of the bundle the documents that he said had changed and showed me on screen. It was a small number.

[31]Mr Khakimov told me that over the weekend he skim read the documents and took some high level legal advice from a solicitor in relation to them. I asked Mr Khakimov if he was ready to proceed with this hearing if I did admit the documents or whether he wanted an adjournment. He said that he did not want an adjournment and would proceed with the hearing if he had a little more time to read the documents, although he said that he would not be able to respond to all of the Respondent’s evidence and was concerned not to be prejudiced by this.

[32]I decided that, although there had been no specific order on 7 April 2021 for witness statements or skeleton argument, these were still ‘documents’ within the terms of that order which should have been provided three working days before the hearing. However, even though submitted in breach of the order, 1 At the hearing I indicated that interpreting the order of 7 April 2021 in the light of Rule 4 meant that the documents had to be filed by Tuesday 20 April 2021. On reflection, I am not sure that is correct and in any event the point is immaterial to the issue I had to decide so I have not included it in these written reasons. - 7 - the question for me was what the consequences should be, in accordance with the over-riding objective.

[33]It seemed to me that the additional documents should be admitted. The additional documents were not voluminous (Ms Marks’ statement was 9 pages, the skeleton argument was 11 pages and the changes to the bundle were minimal). The documents were all (I considered at the start of the hearing) necessary to the hearing as Ms Marks’ statement provided a helpful summary of the Respondent’s case with reference to the documents in the bundle, and the skeleton argument set out the arguments that the Respondent intended to make and it was of assistance both to me and the Claimant that these were provided in writing in advance of the hearing.

[34]I did not consider that the Claimant was significantly prejudiced by their admission. He had had an opportunity to read the documents over the weekend and could have read them in full rather than merely skim-reading them if he chose to do so. He had taken high level legal advice on them. The content of Ms Marks’ statement is essentially a summary of the documentary evidence that was in the bundle that had been provided to the Claimant and the documents were for the most part (possibly all) documents that were sent to the Claimant previously in the course of correspondence prior to his dismissal. The Claimant himself said he is ready to proceed at this hearing even with the additional documents if he had additional time to read and respond to them. I considered that the Claimant could be given additional reading time and that little additional response was required because the Claimant’s witness statement already sets out his case and this hearing is concerned with a high level assessment of the merits of his claim, so that I will not need to consider the detail of the evidence.

[35]After giving my decision on the issue of documents, I offered the Claimant half an hour additional reading time, but he said that he only needed 15 minutes, which I agreed to. At this point the Claimant also indicated that in relation to the interim relief application, he was relying on orders by Employment Judges Brown and Elliott which neither the Respondent or I had seen. I said that if he wished to rely on them, he should email them to me and the Respondent in the break. In the end we adjourned for 20 minutes and when we returned the Claimant was still looking for the documents, so we waited in the hearing room while he looked for them. He then found them and emailed them.

[36]I should make clear at this point that although at the start of the hearing I considered for the reasons I gave orally at the hearing and set out above that it was necessary to admit Ms Marks’ statement as it was a helpful summary of the Respondent’s case and the documents in the bundle, in the event I have not found it necessary to have recourse to anything in that statement in order to reach decisions on the issues that arose for determination at this hearing. - 8 - Issue (2): Whether the Second Claim includes a claim for automatic unfair dismissal

[37]I heard oral submissions from both Mr Smith and the Claimant on this point.

[38]Mr Smith submitted (in summary) that there was no automatic unfair dismissal claim in the Second Claim, that it is clear that the Claimant did not intend to bring such a claim since at no time in correspondence has he asserted such a claim and he did not include one in his Second Claim. He pointed out that the Claimant’s witness statement, which sets out five alleged categories of protected disclosures (each of which is said to have been made on multiple occasions), plainly went beyond the scope of both the First and Second Claims which refer only to one alleged protected disclosure to Ms Marks and Steve Worrall on 17 January 2021. He submitted that it was clear that the Claimant had considered that Steer v Stormsure was authority for the proposition that an interim relief claim could be brought in relation to a discriminatory dismissal, and that was the interim relief claim he had sought to bring, only changing his case after the Respondent (and the Tribunal) pointed out that was not the effect of Stormsure. He submitted that the Claimant should not be permitted to amend his claim because it was insufficiently particularised, it would be out of time, without merit, and the prejudice to the Respondent of allowing it outweighed that to the Claimant of refusing it given that the Claimant still had claims for unfair dismissal and (uncapped) claims for discriminatory dismissal.

[39]The Claimant’s position was that Employment Judges Brown and Elliott had already decided in their orders of 19 March and 6 April that he had brought a claim for automatic unfair dismissal and that I could not go ‘behind’ that. I explained to him that that was not the effect of their orders. They (or, specifically, Employment Judge Elliott) had simply accepted on the basis of his email of 23 March 2021 that he was contending that he had been automatically unfairly dismissed and accordingly listed the case for this hearing. Whether or not that is the claim he brought is a matter for me. I explained to the Claimant that he needed to show me where in his claim he had set out such a claim. After I drew the Respondent’s attention to paragraph 18, the Claimant also said that was the paragraph and also that the automatic unfair dismissal claim was what he meant by “unfair dismissal”. He did not accept that he needed to apply to amend because he maintained that Employment Judge Elliott had already decided the point. I nonetheless invited him to address me on the issues relevant to the question of amendment, including the balance of prejudice (in response to Mr Smith’s submissions). He submitted (in summary) that he had been very prejudiced all along by the Respondent’s actions and that there was no prejudice to the Respondent.

[40]I consider that the Claimant’s Second Claim does not include a claim that he was automatically unfairly dismissed for making protected disclosures; nor does it include any protected disclosures other than that of 17January 2017 - 9 - that he relied on in his First Claim. It does include (at paragraphs 13 and 14) a repetition of the protected disclosures detriments claim from the First Claim under the heading “Retaliation for Public Disclosure per 43 ERA 1996”, but it then goes on to set out, under the heading “Description of the new legal claim – Unfair and Discriminatory Dismissal” complaints of what are described at paragraph 17 as “continued discrimination and harassment throughout 2020” and then at paragraphs 18-19:

[41]Although paragraph 18 makes reference back to the alleged protected disclosure relied on in the First Claim, paragraph 18 does not assert that the Claimant was dismissed because of that protected disclosure. The disclosure is referred to as background, but no causal connection is pleaded. The dismissal is said to be unfair and discriminatory, but it is not said to be because of the protected disclosure made four years previously. In this case, construing the claim form both as a standalone document and in the light of background documents, that omission appears to me to be deliberate and properly reflects what the Claimant intended his case to be when pleading the claim. I reach that conclusion based on the following:a. The Claimant is not a lawyer, but he has evidently done considerable legal research himself and has been in receipt of legal advice on his claim. Although he refers to other (correct) statutory provisions in relation to his claims, he does not refer to s 103A Employment Rights Act 1996 (ERA 1996) or (as noted) assert that his dismissal was because of the protected disclosure.

b. In his correspondence with the Respondent prior to dismissal the Claimant did not assert that he was being dismissed because of any protected disclosure (or anything similar), although he did contend that dismissal would be unlawful disability discrimination (see, for example, pp 166, 192, 195, 205 and 207).

c. In his Second Claim he refers to Steer v Stormsure as forming the basis for an interim relief application, as if that case provided the basis for a claim for interim relief in relation to a discriminatory dismissal. He repeated that point in his email to the Tribunal of 23 March 2021. If he considered he was making an application for interim relief based on a protected disclosures claim, there would have been no need for him to refer to Steer v Stormsure (or, at least, if it was an additional basis for the application, it would have been expressed differently). - 10 -

d. His email of 23 March 2021 implicitly acknowledges that he did not in his Second Claim plead that his dismissal was because of a protected disclosure because instead of simply referring to his Second Claim, he refers back to his First Claim and says “… as noted in my application there is an open legal claim with ET (Case No 2202809/2020), where one of the claim heads is "Retaliation for Protected Disclosure per 47B(1) ERA 1996". I contend that the Respondent's series of discriminations and victimisations up until the point of unfair and discriminatory dismissal on 13 January 2021 stem from that protected disclosure and subsequent chain of events over long period”. In other words, in response to Employment Judge Brown pointing out the difficulty with his interim relief claim, he decided to claim, and articulated for the first time, that his dismissal ‘stemmed’ from the protected disclosure pleaded in his First Claim.

[42]In the circumstances, I conclude that the Claimant’s Second Claim does not include a claim that he was dismissed because he had made protected disclosure(s). Nor does it include any alleged protected disclosures other than that alleged to have been made on 17 January 2017 and referred to in the First Claim. Issue (3): Whether the Claimant should be permitted to amend his claim to include a claim of automatic unfair dismissal (and additional protected disclosures)

[43]In the light of my decision on Issue (2), I therefore consider that the Claimant needs to amend his claim if he wishes to make a claim for automatic unfair dismissal, as he apparently does given that it is on the basis of that claim that he is seeking to claim interim relief at this hearing. Although the Claimant maintained the position that he did not need to make an amendment application, he did make submissions on the issues relevant to an amendment application and since his application for interim relief must fail unless I consider the question of amendment, I considered it to be implicit that he was seeking permission to amend if that were needed and that it was appropriate for me to determine the question of whether he be permitted to amend his claim.

[44]Mr Smith referred to British Gas v Basra

UKEAT/0194/14/DM

at [48] per HHJ Serota QC where it was held: “It is essential before allowing an amendment that it must be properly formulated, sufficiently particularised, so the Respondent can make submissions and know the case it is required to meet”. He submitted that unless that test was satisfied, I should not move on to consider the Selkent factors. I am not convinced the hurdle is as absolute as that passage of the judgment suggests, since HHJ Serota QC goes on only to refer to it being only his “almost invariable practice” to get advocates to produce a written draft of any amendment for approval and, in any event, I do not consider that such a strict approach is necessarily appropriate in the case of a litigant in person. Nonetheless, the extent to which the witness statement properly sets out the necessary particulars of the protected - 11 - disclosures that the Claimant wishes to add to his claim, and a claim of automatic unfair dismissal because of them, is a matter I take into account in considering all the circumstances as Selkent

[1996] ICR 836

requires.

[45]In accordance with Selkent, I must also take into account the over-riding objective, the nature of the amendment, any applicable time limits, the implications of the amendment in terms of impact on the trial timetable or costs and I must balance the injustice/hardship of allowing the amendment against the injustice/hardship of refusing it

[46]In relation to the nature of the amendment I must consider whether it is the addition of factual details to existing legal claims or addition or substitution of other legal labels for facts already pleaded to or whether it amounts to making an entirely new claim.

[47]If a new claim is to be added by way of amendment, then the Tribunal must consider whether the complaint is out of time or, at least, whether there is an arguable case that it is in time (Galilee v Comr of Police of the Metropolis

[2018] ICR 634

and Reuters Ltd v Cole (Appeal No.

UKEAT/0258/17/BA

at para 31). For this purpose, the EAT in Galilee held that the new claim is deemed received at the time at which permission is given to amend (Galilee at para 109(a)). Mr Smith submitted that was binding on me, but it seems to me that the ratio of Galilee is merely that the doctrine of relation back (i.e. relation back to the original claim) does not apply in Tribunals. I do not read Galilee as determining the question of whether the relevant time was when the application to amend was made or when it was decided since that was not in issue in Galilee. Given the potential unfairness to a claimant if the relevant date is the arbitrary date of when the Tribunal determines the amendment application rather than the date on which the application is made by the claimant, I am prepared to assume for the purposes of this hearing that the relevant time is the date on which the Claimant made the application. His witness statement was served on 21 April 2021, so I will take that as the relevant date.

[48]If the proposed amendment is simply relabelling of existing pleaded facts with new legal labels, there is no need to consider the question of timings (Foxtons Ltd v Ruwiel

UKEAT/0056/08

(18 March 2008) per Elias P at paragraph 13, which was common ground between the parties, post Galilee, in Reuters v Cole at paras 15 and 27). In Reuters v Cole Soole J specifically considered what is necessary to make something a new claim and concluded that a relabelling of already pleaded facts with a new legal label does not make it a new claim, but if additional facts are pleaded with the new legal label such that the ‘new’ claim involves a different factual enquiry, then it will be a new claim. It will still be relevant to consider how close the facts are to the old claim so as to consider the significance and likely impact of the amendment (para 30). In that case, it was held that a different reason for treatment, and a different causation issue, made it a new claim, not a relabelling: see paras 28-30. - 12 -

[49]The fact that an amendment is a ‘mere’ relabelling, however, does not mean that an amendment should automatically be allowed. The Selkent principles require that all the circumstances be considered.

[50]The underlying merits of the proposed amended claim may be relevant if the Tribunal is in a position to make a fair assessment of those merits, since there is no point in allowing an amendment to add an utterly hopeless case, but normally it should be assumed that the proposed amended claim is arguable: Woodhouse v Hampshire Hospitals NHS Trust (

UKEAT/0132/12

), at para 15.

[51]Having regard to the above principles, I take into account the following:-

[52]First, the proposed amended claim set out in the Claimant’s witness statement for this hearing is not sufficiently particularised. In particular, it is not clear precisely when he alleges he made all the protected disclosures, nor are the precise terms of the alleged disclosures identified. The Claimant simply sets out what he says the disclosures were about in very general terms. Although he describes in relation to each what he says was the public interest in the matters in question, he merely asserts that he considered each of the matters amounted to a breach of a legal obligation. He does not identify what legal obligation he had in mind and it is not obvious what the legal obligation might be since the alleged disclosures are said to relate to matters that may be morally wrong or bad practice but which are not self-evidently breaches of legal obligations. The list is as follows: “wasting company resources for the benefit of extending personal influence in the company”, “arbitrary decision making and acting in contempt of other functional departments and offices”, “unfair manipulation of employees annual performance scoring process with prejudice to back office and junior employees through informal behind the stages messaging”, “non-compliance with globally announced HR policies and procedures on internal job postings” and “covering up the discriminatory acts of a senior employee, concealing the fact of being involved in the discriminatory acts and failing to abstain from investigations even when it was revealed; arbitrary, secretive, opaque, manipulative handling of grievance procedures”.

[53]Secondly, although the amendment is sought to be made very shortly after the start of proceedings, it is being made outside the three-month time limit in s 111 ERA 1996. The Claimant was dismissed on 13 January 2021. The original three-month time limit therefore expired on 12 April 2021. The Claimant contacted ACAS on 22 March 2021 and the ACAS Early Conciliation certificate was issued on the same date, but that second certificate is to be ignored in calculating the time limit: see Revenue and Customs Commissioners v Garau

[2017] ICR 1121

, Romero v Nottingham City Council (

UKEAT/0303/17/DM

) and Peacock v Murreyfield Lodge Limited [2020] ICR D3. It follows that the Claimant’s application, which for the reasons set out above I assume in the Claimant’s favour was made on 21 April 2021 rather than at this hearing, was made outside the primary three-month time limit. At this stage, I do not need to make a final determination as to whether - 13 - the claim is in time, but I consider that the Claimant’s prospects of establishing that it was brought in time are very poor. This is because the Claimant did bring a claim within the primary time limit that did not include the claim of automatic unfair dismissal that he now wishes to bring and it would therefore have been reasonably practicable for him to have brought this new claim within time. He was aware of his legal rights and, as I have already found above, I infer that the reason why he did not include this claim originally is because he did not consider that the reason for his dismissal was his protected disclosures. He only sought to bring that claim when he realised that he could not bring a claim for interim relief in relation to a discrimination claim. If he genuinely considered the protected disclosure(s) to be the reason for his dismissal, it was practicable for him to have brought that claim from the outset.

[54]Thirdly, so far as the scope of the amendments is concerned, the additional protected disclosures would add significantly to the evidence for the final hearing and the complexity of that evidence, given their nature and number. Adding a claim that the dismissal was because of the protected disclosure pleaded in the First Claim would not add significantly to the length or complexity of the hearing, however.

[55]Fourthly, so far as the merits of the alleged protected disclosures are concerned, I cannot at this stage form a firm view, but based on the Claimant’s witness statement and the documents in his bundle to which he referred me, I consider he is likely to have difficulty establishing that he had a reasonable belief that any of the written documents that he relies on tended to show to their recipients that there was a breach of a legal obligation (at least save where ‘discrimination’ is mentioned). This is because it is not obvious that the matters that the Claimant asserts were legal obligations were indeed legal obligations and because in none of the documents that he showed me in relation to the period between 2016 and 2018 does he make any clear statement that he believed there had been a breach of a legal obligation.

[56]Fithly, so far as the merits of the automatic unfair dismissal claim is concerned, I consider that this stands no reasonable prospect of success. This is because the legal test on such a claim is not the same as for the detriments claims. It is not enough that the protected disclosures form a material part of the reasons for dismissal: the claim can only succeed if the protected disclosure(s) were the sole or principal reason for dismissal. Further, the burden is on the Claimant to raise a prima facie case that the sole or principal reason for his dismissal was that he had made protected disclosures (s 103A(1)). Only then does the burden shift to the Respondent to prove that the protected disclosures were not the sole or principal reason for the dismissal. The Claimant refused to accept this point at the hearing, saying that he had read cases that said the opposite, but the Court of Appeal’s decision in Dahou v Serco Ltd

[2016] EWCA Civ 832

[2017] IRLR 81

is binding on me in this respect. - 14 -

[57]Ms Marks’ decision to dismiss the Claimant in this case was taken after the Claimant had been off work for almost 21 months, and had exhausted his contractual sick pay entitlement over 15 months previously. So far as I can tell from reviewing the correspondence in the bundle, and the Claimant’s witness statement in these proceedings, the Claimant’s position at that point was that he agreed that he was not fit for work, but maintained that the Respondent had caused his disability and was not making the adjustments necessary to accommodate his return to work, although he did not identify in the correspondence what those adjustments might be. The documents in the bundle show that the Respondent had sought during his sickness absence, and with increased focus from 24 November 2020 when the formal capability proceedings commenced, to obtain medical evidence or an occupational health assessment in relation to him. The Claimant refused to co-operate with that process, or to provide any updated medical evidence, unless the Respondent agreed to a set of complicated conditions which he set out in his email of 23 December 2020 (p 192), which Ms Marks considered ‘unworkable’ as she put it in the dismissal letter (p 197).

[58]Against that background, I consider that the Claimant stands no reasonable prospect of showing that the sole or principal reason for his dismissal was anything other than his lack of capability for work (or, possibly, his refusal to co-operate with the capability process). In any event, he stands no reasonable prospect of showing that the sole or principal reason for his dismissal were disclosures that he made several years previously (four years previously in the case of disclosures he alleges he made to Ms Marks who took the decsion to dismiss). This is not just because of the passage of time (although that is significant), or because of the inherent likelihood that the reason for a decision to dismiss an employee who has been absent for 21 months with no clear route for return was indeed capability, but also because of the nature of the disclosures he relies on which do not, as I have already observed, make clear allegations of breaches of legal obligations and therefore are inherently unlikely to have prompted retaliatory conduct. Further, even if the Claimant is right that there was some link back to those disclosures, as he puts it in his own witness statement “termination of my employment on 13 January was just a matter of decision for the Respondent as the working conditions became completely untenable as early as in April 2019”. In other words, whatever had happened previously, by 13 January 2021 dismissal was inevitable given the situation by then prevailing.

[59]I should add at this point that the Claimant on a number of occasions during the hearing referred to paragraph 46 of the Respondent’s grounds of resistance where the Respondent pleads what is known as the Polkey point that if there was anything unfair in the procedure it adopted, that would have made no difference to the outcome so that any compensatory award should be reduced to zero. The Claimant suggested that this supported his case that the Respondent was just trying to orchestrate his departure because he had made protected disclosures. It does not mean that, however: that standard pleading by the Respondent simply sets out the well-known Polkey principle that if there was unfairness in the procedure followed prior to dismissal (such as a failure to provide fair warning of the potential for dismissal, or failure to - 15 - hold an appeal) then that would have made no difference because it was substantively fair to dismiss the Claimant for capability given his long-term illhealth absence.

[60]Finally, I consider the balance of prejudice. If I refuse the amendment, the Claimant cannot pursue his application for interim relief, but that is not a significant prejudice. This is because, as a result of the way the hearing proceeded, the Claimant had the opportunity at this hearing to address me on the merits of that application in any event, so that I have been able to take those submissions into account in determining this application to amend. Given that on an application for interim relief the Claimant has to satisfy the high test that it is ‘likely’ his automatic unfair dismissal claim will succeed, i.e. that it stands a pretty good chance of success (see ERA 1996, s 129(1) and the authorities of Taplin v C Shippam Ltd

[1978] ICR 1068

and London City Airport Ltd v Chackro

[2013] IRLR 610

), it follows from my conclusion that this claim in fact stands no reasonable prospect of success, that he loses nothing by not being able to pursue an application for interim relief. If I refuse the amendment the Claimant will obviously also lose the opportunity of pursuing this claim at a full merits hearing, but again that is not a significant prejudice given the view I have formed of its prospects of success, and also given that the Claimant has other claims that are at present proceeding to a full merits hearing, including a claim that his dismissal was discriminatory which, if it succeeds, provides a gateway to uncapped compensation. Further, since it is apparent from the Claimant’s correspondence in the leadup to his dismissal, as well as the way in which he originally pleaded this case, that the Claimant regards that discrimination claim as his primary claim in any event, there is little prejudice to him in my not permitting this amendment.

[61]In contrast, the prejudice to the Respondent if I permit the amendment is significant since it will be put to the trouble and expense of responding to an apparently unmeritorious claim and to responding to a significantly expanded and insufficiently particularised list of alleged protected disclosures.

[62]Taking into account all the foregoing factors, I refuse the Claimant permission to amend his Second Claim to include a claim for automatic unfair dismissal for having made protected disclosures. I also refuse him permission to amend his claim to include any additional protected disclosures, as those are formulated in his witness statement for this hearing. However, it does not follow that the Claimant could not make a more concise, properly particularised, application to amend the protected disclosures relied on for his detriments claim under s 47B ERA 1996 at a later date. Issue (4): the Claimant’s interim relief application

[63]Since I have refused the Claimant permission to amend his Second Claim to include a claim for automatic unfair dismissal for having made protected disclosures it follows that I have no jurisdiction to consider his application for interim relief. At this hearing the Claimant accepted that the authority of Steer - 16 - v Stormsure means that he can make no application for interim relief in respect of his claim that his dismissal was discriminatory. Even if I had permitted the Claimant to amend his claim, however, it follows from my reasons for refusing the amendment claim above that I would also have refused an application for interim relief in relation to an automatic unfair dismissal claim. Issue (5): the Respondent’s costs application

The law

[64]Rules 76 and 84 provide so far as relevant as follows: 76.— When a costs order or a preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success… 84. Ability to pay In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.

[65]There is no requirement that a costs order reflect the amount that is specifically attributable to the unreasonable conduct (McPherson v BNP Paribas

[2004] EWCA Civ 569

[2004] ICR 1398

). However, the tribunal must identify the conduct, what was unreasonable about it and the effects it had: these are all relevant factors in determining whether costs should be awarded and the amount: Yerrakalva v Barnsley MBC

[2011] EWCA Civ 1255

[2012] ICR 420

[66]In deciding whether to make an award of a litigant in person is not to be judged by the standards of a legal professional: see Vaughan v London Borough of Lewisham & Others

[2013] IRLR 713

at paragraph 25.

[67]In deciding whether the conduct of litigation is unreasonable, the Tribunal must bear in mind that in any given situation there may be more than one reasonable course to take: the Tribunal must not substitute its view for that of the litigant: Solomon v University of Hunter and Hammond (

UKEAT/0258/18

-19/DA) at para 107. - 17 - The parties’ submissions

[68]The Respondent applied for its costs of responding to the Claimant’s interim relief application on the basis set out in Mr Smith’s skeleton argument, i.e.:(a) the application had no reasonable prospect of success; and/or

(b) the Claimant had acted unreasonably, including by: (i) seeking to ‘shift the goalposts’ following receipt of the Respondent’s email costs warning of 13 April 2021; (ii) seeking materially to expand ‘by the back door’ the legal and/or factual basis on which the Second Claim was brought in order to found an interim relief application; and (iii) failing to withdraw the Application when invited to do so by the Respondent. In addition, the Respondent added at the hearing that the Claimant had unreasonably conducted the hearing in that he had repeatedly interrupted Mr Smith and repeatedly asserted (without providing any basis for the assertions) that Ms Marks’ witness statement consisted of “lies” and “misrepresentations”. The Respondent provided a Schedule of Costs for the hearing totalling £25,248.27 (not including counsel’s costs and fees for attending the hearing), but accepted that any costs order should be capped at the summary assessment level of £20,000.

[69]The Claimant resisted the Respondent’s costs application on the basis that he did not accept that he had changed his case in response to the Tribunal and/or the Respondent pointing out that Steer v Stormsure did not mean that he could bring an application for interim relief in respect of a discriminatory dismissal. He did not accept that he had conducted the hearing unreasonably and he submitted that he would be seeking costs against the Respondent, although it was unclear on what basis. I indicated that if he had a costs application to make against the Respondent, there was insufficient time to deal with it at this hearing and he should make it in writing after the hearing if he wished.

[70]There was insufficient time at the hearing to hear oral evidence from the Claimant as to his means, and in any event I considered that, given the Claimant’s difficulties, it would be unfair both on him and the Respondent to ask him to give that evidence ‘on the hoof’. I therefore indicated that I would make a decision as part of this reserved judgment on the question of whether the Claimant’s conduct had been unreasonable and, if I so concluded, that I would give directions for the provision by the Claimant of information in writing as to his means so as to decide, in the terms of Rule 84, whether to make a costs order and, if so, in what amount.

[71]In my judgment, the Claimant has acted unreasonably in relation to this application. For the reasons that I have already set out above in determining Issue (2), namely whether the original Second Claim included a claim for automatic unfair dismissal for making a protected disclosure, I consider that the Claimant did not make, or intend to make, such a claim when he commenced these proceedings. He changed his case only when it was pointed out to him by the Tribunal and the Respondent that Steer v Stormsure - 18 - did not mean that he could bring an application for interim relief in respect of a discriminatory dismissal. That change of case might have been reasonable if there was any indication that he considered at the time of dismissal that the reason for it was the protected disclosures (but there is no such indication), or if that claim stood a reasonable prospect of success (but it does not). I acknowledge that the Claimant is acting in person, but (as he emphasised to me at the start of the hearing) he is an intelligent person who excelled in his academic studies, he has done a significant amount of legal research and he has been in receipt of legal advice. More importantly, the core of the unreasonable conduct lies not with any question of legal judgment but with what the facts were as they were known to the Claimant. Although he does not accept that this is what he has done, I find that his change of case was not based on the facts as he believed them to be, and was an opportunistic attempt to maintain an application for interim relief that he ought to have abandoned once it was pointed out that he had misunderstood Steer v Stormsure. The Claimant’s unreasonable conduct has resulted in the Respondent having to prepare, at speed and considerable cost, for an interim relief hearing, in order to defend itself against an application that stood no reasonable prospect of success. Subject to consideration of the Claimant’s means, I find that the threshold test in Rule 76(1) for the making of a costs order is satisfied.

[72]I emphasise that it does not follow from the above that I will make a costs order. I will take the Claimant’s means into account both in determining whether to make a costs order and, if so, in what amount as permitted by Rule 84.

[73]I should add, for completeness, that I also considered the Respondent’s submissions about the Claimant’s conduct of the hearing. By ordinary standards, the Claimant’s conduct of the hearing (in terms of his allegations against Ms Marks, his interruptions of me and Mr Smith and his reluctance to accept direction from me) was unreasonable, but I am not prepared to find that it was unreasonable given his claimed disability.

Conclusion

[74]In the light of the foregoing, it is ordered as follows:- ORDERS(1) The Claimant is refused permission to amend his claim to include a claim for automatic unfair dismissal under s 103A ERA 1996.

(2) The Claimant is refused permission to amend his claim to include any additional protected disclosures, as those are formulated in his witness statement for this hearing. This does not prevent the Claimant making a - 19 - more concise, properly particularised, application to amend the protected disclosures relied on for his detriments claim under s 47B ERA 1996 at a later date.

(3) The Claimant’s application for interim relief is dismissed.

(4) These proceedings (2200247/2021) are joined with claim number 2202809/2020.

(5) The Claimant must within 7 days of the date that this judgment is sent to the parties:

a. provide a witness statement setting out details of his financial means, including any income, savings or property; or

b. if he does not wish his means to be taken into account in determining whether to make a costs order and, if so, in what amount, then he must within the same timeframe confirm that to the tribunal; and,

c. whether or not he provides information as to his financial means, he may set out any further submissions that he wishes to make, in the light of the matters already determined in this judgment, regarding the question of whether a costs order should be made against him and, if so, in what amount.

(6) The Respondent may provide any response that it wishes to the Claimant’s submissions within 7 days of receipt of the Claimant’s submissions/statement.

(7) The costs application will then be finally determined on the papers by Employment Judge Stout.

The Legal Framework

[75]The meeting took place on 23 April 2018. On 2 May 2018 the Claimant sent an email to Mr Yeo asking to join the meeting. On learning that it had already taken place, he complained that he appeared to be the only person who had not known about it. Mr Yeo replied that the meeting had been called by Ms Drews. The Claimant replied ‘No worries’. It appears that he raised no further complaint, with Ms Drews or anyone else.

[76]Allegation (3) is a complaint that the Claimant was not added to ‘the UCITs Working Group email address’. As Mr Yeo explains in his witness statement (para 55), there was a ‘UCITS Working Group’ email address set up by a member of Ms Drews’s staff in Tokyo. Mr Yeo was not involved in setting it up. The recipient list did not include the Claimant or Mr Yik. We accept that Mr Yeo is not responsible for the fact that the Claimant was not on that list.

[77]Mr Yeo further explains (witness statement, para 56) that there was not an official ‘UCITs Working Group’ in any event. Communications on UCITs funds and projects might involve sensitive questions or high-level strategy, calling only for participation by senior figures. But equally, there would also be meetings and activities involving only more junior staff. It would all depend on the nature of the business in hand. We accept that evidence.

[78]We further accept Mr Yeo’s evidence (witness statement, para 58) concerning the ‘NGUF Product’ mailing group which he established, and that he selected its members, who included the Claimant, Mr Yik and several others, for the reasons he gave. Appointment of Chris Yik to Head of Product

[79]Facts recorded under this heading relate to claims noted in the LoI, para 3(b)(v) (against Mr Yeo for direct race discrimination) and 8(b)(ii)(7) (against Mrs Marks and Mr Worrall for victimisation).

[80]The background of the creation of the Head of Product role was explained by Mr Howland-Jackson in his witness statement (paras 23-25). In summary, his perception as CEO in London (a position he took up in the autumn of 2017) was that there was a serious impediment to the management and development of the Luxembourg funds owing to the fact that the Singapore Product Team had control of international product matters and the approval of decisions relating to funds was led from Tokyo. Apart from anything else, the time zone differences made cooperative working between London and the Far East exceedingly difficult. In all the circumstances, Mr Howland-Jackson considered it necessary to shift the centre of gravity for the management and control of Luxembourg funds to London. He secured the agreement of the then Global CEO, Mr Takumi Shibata, that this end might be achieved by creating a new product development post based in London. The core aim would be to grow Nikko’s Luxembourg fund range. As to candidates for the role, it was also agreed that the appointee must be drawn from the Singapore Product Team. This was seen as ‘politically’ essential in order to secure the ‘buy-in’ of the Singapore office.

[81]Once the thinking had reached this point, it was then rapidly agreed that the only suitable candidate was Mr Yik, then Head of Product Management (Asia, excluding Japan). He was seen as a key member of the Singapore Product Team and had a very strong reputation across the entire Nikko organisation. Although his background was primarily in product management, it was judged that he also had the necessary experience and skills to take on a more strategic, product development function.

[82]The result of appointing Mr Yik would be that the London Product Team would be expanded to two. It would then be necessary for one to be in charge. Given Mr Yik’s seniority, reputation and engagement skills, the view of Mr Howland-Jackson and Mr Shibata was that it would be necessary for the Claimant to have a reporting line to Mr Yik. In turn, Mr Yik would report to Mr Yeo, who would retain responsibility for the International Product Team.

[83]Mr Howland-Jackson considered that there was no need for Mr Yik’s appointment to impinge upon the Claimant’s central product management responsibilities.

[84]From the outset, it was envisaged that Mr Yik’s appointment would take the form of a secondment, rather than a permanent change of position. Although we were not told of any specific time period, we accept Mr Howland-Jackson’s evidence that he regarded 2 to 3 years as the likely duration of the secondment.

[85]Mr Howland-Jackson and other senior managers worked together to construct a job description. In late 2018 the post of Head of Product (EMEA)6 was offered to Mr Yik on a secondment basis (no precise term was specified) and he agreed to take it. No consideration was given to holding any form of competition, internal or external. Mr Howland-Jackson and his senior colleagues were agreed that the candidate needed to be from within the organisation and, specifically, someone based in the Singapore office and that the only suitable person was Mr Yik.

[86]Although the idea of the secondment had begun with Mr Howland-Jackson and Mr Shibata, the decision to make the proposed structural change and appoint Mr Yik to the new position was taken collectively with the unanimous agreement of senior management including (in addition to Mr Howland-Jackson and Mr Shibata) Mr Hiroshi Yokoyama, Global Head of Products, Mr Hideyuki Omokawa, Global Co-Head of Product and Marketing, Ms Drews and Mr Yeo.

[87]There was no material involvement of HR in the decision. As one would expect, Mrs Marks was involved in discussions about implementation of the changes which senior managers had decided upon. No doubt Mr Worrall was made aware of the decision but again, there is no evidence of him having played any part in it.

[88]Unfortunately, the Claimant did not take the news of Mr Yik’s secondment well. He felt that the new post should have been offered to him and that he was a stronger candidate than Mr Yik. He also considered that the new structure, adding a new layer of management (Mr Yik) between him and Mr Yeo would involve a demotion for him. He rejected the arguments of senior managers that the changes would provide him with career development opportunities. On 14 December 2018 he presented the senior management with a set of what he called ‘options’, the first of which would involve reversing the proposed changes so that Mr Yik would report to him. The decision of senior management was that the planned changes would not be varied. 6 Europe, Middle East & Africa

[89]On 1 March 2019 Mr Yik’s secondment began. Shortly afterwards, a structure chart was circulated which showed the Claimant’s new reporting line to Mr Yik.

[90]On 14 March 2019 the Claimant sent a calendar appointment to Ms Drews, Mr Omokawa, Mr Worrall, Mrs Marks, Mr Ikegaya and Mr Howland-Jackson stating that it was intended to stand as a ‘daily reminder that I am acting under protest’ and requiring that ‘the matter’ be rectified. Having been advised in writing (on 22 March) and at a meeting (on 5 April) that the company’s decision had been taken and would not be revisited, the Claimant raised a formal grievance about Mr Yik’s appointment. The conduct of that grievance is the subject of a separate complaint, upon which we record our findings under a separate heading below.

[91]On 17 April 2019 the Claimant commenced a period of sick leave from which he did not return. Performance assessment score – March 2019

[92]The findings which follow relates to the complaint of victimisation noted in the LoI, para 8(b)(ii)(7).

[93]Under the Respondent’s arrangements, annual performance scores were awarded in an ascending range from 1 to 5. A score of 3 translates as ‘performing’. 4 means ‘great’.

[94]The Claimant received scores of 5 and 4 respectively in respect of the years to March 2017 and March 2018. In each of those years he held the status of VP. The March 2019 score of 3 came at the end of his first year as an SVP.

[95]The proposal to award 3 came from Mr Ikegaya, against whom the Claimant makes no allegation of unlawful conduct. That proposal was approved by Mr Yeo. He told us (witness statement, para 70) that performance scores reflect the seniority of the individual in question and the company has higher expectations of those with higher corporate status. He judged that a score of 3 seemed appropriate and that the Claimant had performed at the level expected of him as an SVP.

[96]The score of 3 was awarded some 18 months after the alleged protected act on which this complaint of victimisation hangs. The score of 4 for the previous year (about which no allegation of unlawful treatment is pursued) was 12 months closer in time to the alleged protected act. Handling of the second grievance – April 2019

[97]The findings under this heading relate to the complaint of discrimination arising from disability noted in the LoI, para 6(b)(i).

[98]The Claimant sent an email to Mrs Marks on 5 April 2019, raising a grievance about the appointment of Mr Yik to the Head of Product position and consequential matters. Given that there had already been much discussion of the subject and the Claimant had been advised that the decision of senior management would not be reconsidered, Mrs Marks attempted to reassure him, pointing out that he was a valued employee and that the creation of the new position could present him with a career opportunity. Unpersuaded, the Claimant responded that he wished to pursue his complaint as an informal grievance. Since the issues had been considered informally at some length, Mrs Marks advised him on 16 April 2019 that the next step was to raise a formal grievance. He responded at once to say that his original complaint should stand as his formal grievance.

[99]Mr David Cruise, the Respondent’s Chief Financial Officer, was allocated to investigate and decide upon the grievance.

[100]On 25 April 2019, by which time he was absent from work on sick leave, Mrs Marks invited the Claimant to attend a grievance hearing. He replied that he wished the matter to be dealt with in writing given that he was unwell and, in addition, had concerns that his points might be ‘misinterpreted and manipulated’ if he presented them in person. Mrs Marks wrote to the Claimant on 1 May 2019 to express her view that it would be preferable to hold a grievance meeting and suggesting, as a compromise, that it could be recorded and a transcript provided. The Claimant responded, stating that he was not well enough to manage ‘real time discussions’. Accordingly, Mrs Marks advised Mr Cruise that the Claimant wished for the grievance to be conducted in writing. His wish was respected. Mr Cruise submitted a list of questions to him. Having considered his answers and the input from certain other individuals, he concluded that the grievance should not be upheld. In accordance with the Respondent’s standard processes, the result was conveyed by Mrs Marks, in a letter dated 18 June 2019, but the decision-making, and the drafting, were Mr Cruise’s. Sickness absence and the Group Income Protection (‘GIP’) scheme claim

[101]The findings below relate to the complaints of discrimination arising from disability noted in the LoI, paras 6(b)(ii) and 6(b)(iii).

[102]We have mentioned that the Claimant’s period of sick leave commenced on 17 April 2019. He did not return to work thereafter. A series of ‘fit notes’ followed, certifying that he was unfit for work and referring to work-related stress and other problems.

[103]In relation to the Claimant’s complaint that Mrs Marks failed to contact him during the first six months of his sickness absence, we record the following findings. He returned his work mobile phone shortly after his sick leave began. Mrs Marks tried to reach him on his personal mobile phone but he did not answer her calls. He told her not to contact him on his personal email account, but she did have frequent contact with him via his work email address, much of which was concerned with the second grievance and the question of a GIP claim. Mrs Marks’s emails were polite and supportive. On occasions she asked after the Claimant’s health and wished him a prompt recovery.

[104]The Respondent had a GIP scheme backed by an agreement with an insurer, Zürich. Employees, including the Claimant, were contractually entitled to the benefits of the scheme, subject to its rules and ‘qualifying conditions’. In the usual way, those benefits were intended to compensate employees for loss of income in the event of long-term incapacity to work extending beyond an initial ‘deferred period’ of six months (over which they, or at least those at the Claimant’s level of seniority and above, had the protection of the company sick pay scheme).

[105]The Claimant complains that, in August and September 2019, Mrs Marks and Mr Worrall mishandled the GIP claim made on his behalf. A claim was submitted to Zürich on 30 August 2019. The ‘fit notes’ were sent in support. The Respondent had no other evidence to supply. The Claimant provided it with no medical evidence at the time or at any material point thereafter. In fact, despite repeated requests, he did not disclose his medical evidence to the Respondent until 21 April 2021, and then only pursuant to an unless order of the Tribunal.

[106]Following a call with the Claimant on 27 September 2019, Zürich rejected the GIP claim on the basis that ‘work-related stress’ was not covered under the policy. In a separate communication a representative of Zürich informed Mrs Marks that the Claimant had been ‘quite guarded’ during the call but had confirmed that his absence from work was ‘work-related’. In an email to Mrs Marks of 30 September 2019, the Claimant confirmed that he had told Zürich that his medical issues resulted from workplace stress.

[107]Mrs Marks asked Zürich to provide a formal response to the claim, which followed on 3 October 2019. In summary, this document stated that the Claimant’s absence from work was ‘situational’ rather than reflecting an inability to perform the work for which he was employed and that he could perform such work for another employer.

[108]The Claimant alleged that Mrs Marks misrepresented his medical condition to Zürich. We find that, in her telephone and email conversations with Zürich, she did nothing more than convey her understanding, based on the ‘fit notes’, that his indisposition was a result of workplace stress.

[109]On 3 October 2019 the Claimant gave notice that he disputed Zürich’s decision and asked the Respondent to resolve the matter. Mr Worrall then approached him with an offer of a call, but he rejected the proposal, referring to ‘too much useless conversation’.

[110]On 8 October 2019 Mr Worrall suggested to the Claimant that the Respondent should make an OH referral on his behalf. He did not respond to the suggestion.

[111]On 15 October 2019 Mr Worrall sent to the Claimant at his request copies of the Respondent’s healthcare policy, GIP policy and certain other information.

[112]On 16 October 2019 the Claimant raised a grievance about the Respondent’s handling of the GIP claim. Mr Cruise was again appointed to investigate. On 11 November 2019 he gave his decision dismissing the grievance. The Claimant appealed against Mr Cruise’s decision, but on 11 December 2019 Mrs Leen dismissed that appeal.

[113]In the meantime, Mrs Marks commenced a period of maternity leave on 18 October 2019, from which she returned about a year later. She was not involved in any matter relevant to these proceedings during her absence.

[114]Mrs Leen replaced Mrs Marks for the duration of her maternity leave.

[115]On 29 October 2019 the Respondent, through Mrs Leen, raised an appeal against Zürich’s rejection of the GIP claim. Among many others, she made the points that workplace stress did not appear to be an excluded condition under the GIP policy and that it would be helpful for Zürich to have sight of the Claimant’s medical records (if he agreed to release them).

[116]Zürich then asked the Claimant to release his medical records to them and he provided his consent. They were delivered on 13 November 2019 and the Respondent was made aware that he had supplied them. A review by Zürich’s Consultant Medical Officer followed, after which, on 20 November 2019, the appeal was rejected. The stance taken in the letter of 3 October 2019 was affirmed.

[117]On 4 December 2019 Mrs Leen reverted to Zürich to enquire whether there was a means of pursuing the GIP claim further. She was advised that it was open to her to make a formal complaint. Although the Claimant had made it clear in vehement language that he was not prepared to authorise a further appeal and regarded the decision of 20 November 2019 as final, he did not explicitly veto a complaint and Mrs Leen submitted one on 22 January 2020.7

[118]On 31 January 2020 Zürich rejected the formal complaint. The essence of its reasoning was expressed in this passage: It is the unresolved workplace issues … that are the barrier to him returning to work, not an underlying medical illness preventing him from undertaking his duties. There are multiple entries in the GP notes that support that there is a direct relationship with stress at work (Nikko) and how he is feeling, it is evident from comments that when away from the workplace … his symptoms resolve and it is only the thought of returning to Nikko that leads to an escalation of his symptoms. It is for [this] reason that the definition of incapacity has not been satisfied.

[119]Besides the direct challenges to Zürich to which we have referred, Mrs Leen also encouraged the Claimant to consider making a complaint to the Financial Ombudsman Service (‘FOS’), and, on behalf of the Respondent, offered him financial assistance of up to £1,500 plus VAT to cover independent legal advice for that purpose. In the event, the Claimant did not take up that offer but he did make his own complaint directly to the FOS. In these proceedings, he has not disclosed 7 Mrs Leen called it an appeal, but it seems that its proper status was that of a complaint. She told the Claimant that she had submitted it in order to protect his interests. He later dismissed her action as ‘absolutely useless’ for him and ‘only aimed at defending Nikko’s interests’ (email of 3 February 2020). copies of his communications with the FOS and it is unclear what medical evidence (if any) he submitted in support of his complaint. On 16 November 2020 an FOS adjudicator issued a ruling, communicated to the Claimant and the Respondent on that day, in favour of Zürich. It seems that the matter was then referred to the Ombudsman who, on 13 July 2021, affirmed the adjudicator’s decision. OH referral, disclosure of medical records, capability procedure and dismissal

[120]The facts recorded under this heading relate to the complaints of discrimination arising from disability under LoI, paras 6(b)(iv) and 9(b)(v) and the complaint of unfair dismissal (LoI, para 9).

[121]As we have mentioned, Mr Worrall suggested to the Claimant on 8 October 2019 that an OH referral should be made. At that point, Zürich had rejected the GIP claim and the Claimant’s right to company sick pay was about to run out. The Claimant did not respond to the suggestion.

[122]On 21 October 2019 Mrs Leen took up the subject of OH, proposing that an appointment be made.

[123]On 25 October and 11 November 2019 Mr Cruise repeated to the Claimant that the proposal remained live and explained why an OH referral was likely to be beneficial for all concerned.

[124]On 4 December 2019 Mrs Leen proposed an OH review with a consultant OH practitioner, Dr Ryan, on 11 December 2019. She later put the date back to 17 or 18 December and provided further information about the questions and issues that Dr Ryan would be exploring at an OH review.

[125]On 13 and 18 December 2019 Mrs Leen wrote again to the Claimant explaining that there was nothing unusual or unreasonable about the request for an OH review and that he had no reason to be mistrustful of an entirely standard process.

[126]The Claimant did not engage and the proposed OH assessment by Dr Ryan did not happen.

[127]In a further attempt to move matters forward, Mrs Leen proposed that the Claimant be permitted to select three independent OH practitioners from whom the Respondent could choose one, alternatively that the Respondent select three practitioners from whom the Claimant could choose one. The Claimant was not willing to take up this suggestion, apparently on the ground that a doctor chosen in this fashion might not be impartial.

[128]On 30 December 2019 Mrs Leen proposed a third-party review through Zürich. The Claimant rejected the idea.

[129]On 6 January 2020 Mrs Leen mooted the appointment of two OH doctors in sequence, one appointed and paid for by the Claimant and one by the Respondent. Again, the suggestion was dismissed by the Claimant.

[130]On 10 January 2020 Mrs Leen proposed the simultaneous appointment of two OH practitioners, one by the Claimant and one by the Respondent, with a view to there being two assessments on the same day. Again, the Claimant dismissed what was proposed.

[131]Mrs Leen was still not defeated. On 17 January 2020 she wrote to the Claimant proposing that an OH practitioner be selected by HCA Healthcare, an organisation of occupational health providers. She also repeated her request for the Claimant’s medical notes and records. Again, the Claimant rejected the proposal relating to the OH referral, declaring that all the Respondent’s requests were ‘unacceptable’ and that it had ‘all the information from [my] GP including the ‘sick notes’ …’ In fact, as he well knew, the ‘fit notes’ constituted the only GP material held by the Respondent.

[132]On 21 January 2020 Mrs Leen wrote again to the Claimant stating that, regrettably, the parties had reached an impasse. She asked him, if he changed his mind, to provide whatever medical information he might have and in particular the material which he had already given to Zürich, pointing out (again) that the only medical evidence in the Respondent’s possession was the set of fit notes and that it was ‘incredibly difficult’ for it to decide how to proceed. Again, the Claimant refused to engage, on the subject of the OH referral or in relation to disclosure of medical or evidence.

[133]Mrs Leen sought the Claimant’s engagement on both topics in September and October 2020, again without success.

[134]Following her return from maternity leave, Mrs Marks did likewise in her email of 24 November 2020, reminding the Claimant that the Respondent held no medical evidence other than the ‘fit notes.’

[135]The capability process began the same day with an invitation from Mrs Marks to the Claimant to attend a meeting to discuss his ongoing absence, his fitness to return to work and anything that might be done to facilitate that return. She explicitly stated that the capability process might end in dismissal. A lot of debate about arrangements followed and Mrs Marks agreed with all the terms while which the Claimant proposed. These included limiting any meeting to 30 minutes, providing an agenda and a list of questions which would be considered, arranging a recording and providing a transcript. In view of the time restriction, Mrs Marks proposed two meetings scheduled for 30 minutes each. The Claimant expressed the hope that a single meeting would be sufficient.

[136]The first meeting was fixed by agreement for 11 December 2020, in the form of a video conference call. It was chaired by Mrs Marks. Mrs Leen attended to take a note. At the meeting the Claimant stated that he remained unwilling to:(a) undergo an OH assessment by a doctor from the HCA network;

(b) allow the Respondent to know the identity of any OH practitioner selected by him before delivery of that practitioner’s report;

(d) provide the Respondent with the details of any specialist who had been treating him; or

(e) divulge any medical evidence to the Respondent.

[137]Having been given the opportunity on 18 December 2020 to reconsider his position and say whether he would now provide medical evidence and engage with an OH expert as proposed, the Claimant made it clear in his reply of 23 December 2020 that he was not willing to agree to either course.

[138]By a letter of 6 January 2021 Mrs Marks invited the Claimant to a second capability meeting. He responded two days later, stating that he did not consider a second meeting to be necessary.

[139]Having given the matter further consideration, Mrs Marks took the decision to terminate the Claimant’s employment with payment in lieu of notice (as provided for under his contract). She set out her reasons in her letter of 13 January 2021, which included the following: As it stands, we have no independent medical information on your current conditions or prognosis (in fact we are not even fully aware of what those conditions are, save that you have told us that one of them is FND), what adjustments (if any) we can take to facilitate your return to work nor when you are likely to be fit to resume your duties. We had hoped we could work with you to find out the answers to these questions so that we could then make an informed decision on your future employment with Nikko. However, you made it clear in your most recent letter that you are unwilling to co-operate with what we consider to be a reasonable process. As you have now been absent for almost 21 months and there is no evidence that you will be able to return to work in the near future, I have taken the difficult decision to terminate your employment on the ground of ill-health capability. In reaching this decision, I have taken into account that your entitlement to company sick pay has expired and that our claim to Zürich on your behalf for income protection cover was unsuccessful. I have been unable to give meaningful consideration to the issue of whether you might be able to carry out an alternative role, primarily because it is not possible for me to do so in the absence of visibility around your medical condition(s).

[140]Mrs Marks also drew attention to the Claimant’s right to appeal. The Claimant then engaged in email correspondence with Mr Howland-Jackson, in which he pressed the argument that he should be reinstated pending any appeal. Mr Howland-Jackson explained that appeals did not work in that way but that, if he pursued an appeal and was successful, one outcome might be his reinstatement. Ultimately, the Claimant declined to pursue an appeal in these circumstances.

[141]By the time of the dismissal, the Claimant’s extended period of absence had had a serious impact upon the Respondent’s business. It had placed a considerable strain upon Mr Yik, who had been required to perform the functions of two roles more or less single-handedly. It had also delayed the growth plans which had been the very rationale for the creation of the Head of Product post and the attendant structural changes. Disability The FND condition and its symptoms and effects

[142]We have mentioned that the parties are agreed that, from 17 April 2019 onwards, the Claimant has been disabled by his FND condition.

[143]In his witness statement, paras 5-7, the Claimant summarises his main symptoms. These include (para 5) ‘consistent pain/pressure/noise’ at the back of the head, ‘sleep disorder and abdominal pain’ and ‘constant fatigue’. He describes (para 6), ‘any real-time or multi-layered cognitive act’ or active physical movement as putting substantial strain upon him and aggravating his pain. He states ‘I am not allowed to drive, cannot enjoy most personal and family activities that I used to enjoy, let alone doing any paid work. I do not even feel confident in going out on my own.’ He characterises his condition as chronic and fears that it may be permanent. His case before us (witness statement, para 3) is that he has been since April 2019, and remains, ‘incapacitated, i.e. unable to do any work or activity which involves active thinking and/or active physical movement.’ In so far as his evidence states facts about his condition (rather than expressing opinions), it is unchallenged and we accept it.

[144]For the purposes of his complaint of discrimination arising from disability, the ‘something arising’ is stated (LoI, para (6)(a)(i)) to be that the Claimant’s FND, ‘makes it difficult to think in multiple layers, [and] deal with unclear responsibilities and uncertainty of his allocated roles’.8 This uncertainty is said to be compounded when ‘misrepresentation takes place’. Again, we accept that the condition involves a significant impairment of cognitive functions. The Respondent’s knowledge of the Claimant’s disability

[145]The ‘knowledge’ issue is identified in the LoI, para 4.

[146]The narrative concerning the Claimant’s period of sick leave, the capability process and the dismissal is set out below. For present purposes, it is sufficient for us to record that the Respondent was not made aware of the diagnosis of FND until it received the first claim form. Mr Smith told us on instructions, and Mr John did not dispute, that, owing to the effects of the Covid-19 pandemic, service was not effected until 7 October 2020, some five months after the proceedings were issued. Until it had sight of the first claim form, the Respondent was provided only with ‘fit notes’ supplied by the Claimant’s GP. These referred variously to abdominal pain, headaches, stress, sleep disorder related to work stress, workrelated stress and, in some instances after October 2019, anxiety. The Respondent’s repeated efforts to prevail upon the Claimant to provide more information about his condition were unsuccessful.

[147]In our secondary findings and conclusions below, we will consider, for the purposes of the complaint of discrimination arising from disability, whether, and if 8 LoI, para (6) a. so, by what date, the Respondent knew or could reasonably have been expected to know that the Claimant had the disability of FND. Secondary Findings and Conclusions Rationale for primary findings

[148]In arriving at our primary findings we have had careful regard to all the evidence put before us. We have considered the coherence, internal consistency and general plausibility of the witness evidence. We have also attached particular importance to contemporary documents. Direct race discrimination

[149]The ‘live’ claims under this head are those listed in the LoI at paras 3(b)(ii) to (v). Detriment

[150]As to para 3(b)(ii), we remind ourselves that the complaint is of Mr Mulholland ‘deliberately and unreasonably’ delaying consideration of the Claimant’s renewed request for early sponsorship of his ILR application made on or around 11 August 2017 and ‘unjustifiably’ rejecting that request on 21 September 2017. In our judgment the Claimant identifies nothing here about which reasonable complaint could be made. Given that he(a) had been told in clear terms on 8 March 2017 that, in line with its standard procedures, the Respondent would make the application at or around the time of expiry of the current Tier 2 visa, and

(b) had brought forward no new ground for accelerating the process, we think that Mr Mulholland can be forgiven for not regarding his somewhat importunate request of 11 August 2017 and subsequent chasing emails as a priority. And the rejection of the request on 21 September 2017 was, in our view, entirely justified and in accordance with the Respondent’s normal practice. Mr Mulholland had been given no reason to regard the Claimant’s case as meriting special treatment and he would have been open to legitimate criticism if, without good cause, he had simply yielded to the pressure placed upon him to do so. In these circumstances, we find that the Claimant fails to demonstrate an arguable detriment.

[151]We turn to the LoI, para 3(b)(iii), which makes three allegations against Mr Yeo of attempting to change the Claimant’s reporting line to Mr Yik.

[152]We are marginally persuaded that Allegation (1) (copying the email of 10 July 2017 to Mr Yik) discloses a detriment. Allowing that the Claimant was and is clearly exceedingly sensitive on matters of status, we are just persuaded that the low threshold is crossed. He and Mr Yik both reported to Mr Yeo and he was offended to see his personal goals shared with his peer.

[153]We find nothing whatsoever in Allegation (2) (making the Claimant provide updates to Mr Yik on catch-up calls). Our primary findings speak for themselves. The communication was not ‘one-way’. Mr Yeo was involved and Mr Yik chaired the meetings only when Mr Yeo was unavailable. It is very unlikely that that happened more than once in the relevant period (July and August 2017). It is possible that the Claimant’s sensitivity about status may have caused him to resent the fact that Mr Yik sometimes chaired the meetings. If so, such resentment was unreasonable and if the Claimant felt disadvantaged that sentiment was not justified.

[154]In our judgment there is also nothing in Allegation (3) (Mr Yik at the behest of Mr Yeo attempting to dictate to the Claimant concerning his work and responsibilities in February and June 2018). Given his sensitivity already mentioned, the Claimant may, on occasions, have felt irritation about Mr Yik’s attempts to provide guidance and advice. It may be that, in his enthusiasm, Mr Yik slightly overreached himself once or twice. But we have found that his interventions were well meant and we have no doubt that the Claimant (and others) understood that they were intended to be helpful and supportive. In these circumstances, we find that an actionable detriment is not made out. In any event, this complaint is directed at Mr Yeo and we reject entirely the charge that he manipulated or encouraged Mr Yik to behave in the manner complained of. It follows that the allegation of detrimental treatment against Mr Yeo necessarily fails.

[155]We turn to the allegations against Mr Yeo of depriving the Claimant of access to senior management (LoI, para 3(b)(iv)). Again, there are three separate complaints to consider.

[156]We are satisfied that Allegation (1) discloses no arguable detriment. Mr Yeo volunteered to the Claimant the confession that he ought to have ‘looped him in’ a little earlier, at the point when the Product Committee had granted approval for a particular project. But the project was not yet underway and the Claimant had not been excluded from any work relating to it. This was a trivial oversight involving no disadvantage.

[157]Allegation (2) discloses no arguable detriment on the part of Mr Yeo, the only individual at whom this complaint is directed. On our primary findings, the meeting to which the Claimant was not invited was called by Ms Drews.

[158]Likewise, on our primary findings, no arguable detrimental act on the part of Mr Yeo is established under Allegation (3). If the Claimant was seeking to rely on the ‘UCITs Working Group’ referred to by Mr Yeo in his witness statement (para 55), in which neither he nor his comparator, Mr Yik, was included, we have found that Mr Yeo was not responsible for the recipient list. We have also accepted Mr Yeo’s evidence that there was no dedicated, official ‘UCITs Working Group’. Communications concerning UCITs work went to various people within the organisation depending upon the particular subject-matter under consideration. The evidence before us does not substantiate any practice of excluding the Claimant from communications relating to UCITs work.

[159]Finally, we come to the complaint that Mr Yeo ‘did not promote the Claimant to the role of Head of Product in March 2019’ (LoI, para 3(b)(v)). In our judgment it is highly questionable whether a detriment is established here. We have no doubt that the Claimant, who has very clear views about his own talents and potential, strongly believes that the appointment of Mr Yik was wrong and unwarranted and that the opportunity should have gone to him. That said, given the reasoning of the senior managers behind the creation of the new post (as to which we have made findings above), we struggle to see him as having been deprived of a realistic chance. Their unanimous view was that, despite his strong technical ability, he did not have the reputation, experience or managerial and leadership skills which the position required. Moreover, they were very clear that it was ‘politically’ imperative that the role be filled by someone from the Singapore office who could command the trust and cooperation needed to secure an effective shift in the control and management of the Luxembourg funds to London. We accept that, given the essential criteria agreed by the decision-makers, Mr Yik was the only possible choice. Accordingly, while we accept that the Claimant felt disadvantaged by the decision to appoint Mr Yik, we do not consider that his perception was justified. Discrimination

[160]The claim under LoI, para 3(b)(ii) has failed for want of any detriment shown. In any event, it fails on the further and even more compelling ground that there is no foundation for a finding of unlawful discrimination. The posited comparison with Mr Yik (LoI, para 3(f)(ii)) is obviously an error. It was no part of the Claimant’s case to suggest that there was any valid ‘like-for-like’ comparison between the Respondent’s treatment of him on the one hand and Mr Yik on the other, save in respect of the March 2019 Head of Product appointment (LoI, para 3(b)(v)), to which we will shortly come. What basis is there for inferring that an hypothetical comparator of different nationality would have received materially different treatment from Mr Mulholland compared with that received by the Claimant? In our judgment, there is none. The particular suggestion that an imaginary comparator of Japanese or Singaporean or Far Eastern nationality would have been treated more favourably than he was is not supported by any evidence. On our primary findings, the only employee who had had the benefit of early sponsorship for ILR was a US citizen. And that individual’s family circumstances were, as we have noted above, certainly exceptional.9

[161]Under LoI, para 3(b)(iii) and (iv) we are left with a marginal finding of an exceedingly minor detriment under Allegation (1). Otherwise, we have found no detriment established. Is there any basis for supposing that Mr Yeo’s minor slip in copying the email of 10 July 2017 to Mr Yik had anything to do with the Claimant’s Uzbek nationality (or the fact that Mr Yik was Singaporean)? We remind ourselves that the case here rests on the broader allegation that Mr Yeo was seeking, on racial grounds, to change the Claimant’s reporting line to Mr Yik. We have found no evidence whatsoever to substantiate the underlying theory. Nor is there any contextual or background evidence pointing to a practice or disposition on the part of Mr Yeo to disadvantage the Claimant in any way, let alone to discriminate 9 Of course, it does not help the Claimant to point out that, at the end of the grievance process, Mr Rippey was persuaded that exceptional circumstances were shown in his case. As he made clear, these became apparent for the first time in the course of the investigation and had not been before Mr Mulholland. against him on account of his nationality. In our judgment the Claimant fails to make out the first beginnings of a case of unlawful race discrimination here.

[162]As to the appointment of Mr Yik to the Head of Product role (LoI, para 3(b)(v)), we have explained that we are not persuaded that an arguable detriment is shown in the circumstances. In case we are wrong about that, we have gone on to consider whether any arguable complaint of discrimination is made out in respect of that appointment. We are satisfied to a high standard that none is. The Claimant cites Mr Yik as his comparator but we find the comparison invalid. The circumstances of the two cases were materially different in at least two vital respects. First, the Claimant’s experience and reputation within the organisation were not in any sense comparable to those of Mr Yik. Secondly, by virtue of having been based there for a significant period, Mr Yik was capable of commanding the trust and confidence of the Singapore office, which was crucial to the success of the project to move the ‘centre of gravity’ of the Luxembourg funds to London. By contrast, the Claimant had no comparable connection with the Singapore office.

[163]Treating the claim as resting on a comparison with an hypothetical comparator, we see no warrant for an inference that, had he been of different nationality, the Claimant would have been appointed to the Head of Product role. The logic of the senior managers’ reasoning argues compellingly the other way. Likewise if one asks whether, had Mr Yik not been Singaporean (or of any other Far Eastern nationality), he would have been chosen for the appointment. Quite simply, we are satisfied that he was appointed because he was judged to be comfortably the best candidate on merit (indeed the only appointable candidate on merit) and because he was seen to have the necessary connection with the Singapore office. Those reasons seem to us both credible and rational. In our judgment they provide an entirely plausible explanation for the Respondent’s action and one which excludes discrimination in any form. Race discrimination – summary

[164]For the reasons stated, we have concluded that only one (exceedingly minor) detriment is demonstrated and that, in any event, there was no discrimination in any of the matters to which the claims relate.

[165]We have set out our reasoning above in respect of each of the allegations of direct race discrimination in turn, because different considerations and different evidence apply to each. But we have been careful to step back from the detail to survey the whole and to look carefully at all of the evidence (including ‘background’ matters) when considering whether any pattern pointing to discrimination based on nationality is demonstrated. This exercise has only confirmed our view that the Claimant’s theory of race discrimination is misplaced. Race-related harassment

[166]The claims under this head are noted in the LoI, para 7(a)(i) and (ii).

[167]We are satisfied that both claims are untenable. Although we are prepared to assume in the Claimant’s favour that both acts relied on were ‘unwanted’, he fails in each case to make out the other essential ingredients of the tort of harassment.

[168]As to the first complaint (communicating the cost of a visa on 30 September 2015), we do not consider that the ‘related to’ connection with the Claimant’s protected characteristic of Uzbek nationality is established. There was certainly a contextual link in the sense that the communication arose as a consequence of a transaction necessitated by the fact of his Uzbek nationality but that, on our reading of the law (see the reference above to Unite the Union v Nailard), is not enough. There is, in our judgment, no evidence to make out what is required, namely that the conduct complained of was itself related to the protected characteristic.

[169]In case we are wrong on the ‘related to’ point we are in any event satisfied to a very high standard that the treatment of which the Claimant complains comes nowhere near to being capable of amounting to actionable harassment under the 2010 Act, s26. There is no basis for supposing that Mr Mulholland intended to violate the Claimant’s dignity or subject him to an environment to which any of the powerful adjectives in 26(1)(b)(ii) could sensibly be attached. Nor could the treatment reasonably be judged to have had such an effect. To uphold this claim would be to ‘cheapen the significance’ of the statutory language in precisely the way warned against in Land Registry v Grant (cited above), among other authorities.

[170]Our reasoning in respect of the second harassment claim (Mr Mulholland asking the HR team to point out that the Claimant was free to proceed with his ILR application early, at his own cost) is identical to that explained above in respect of the first. In short, the ‘related to’ requirement is not made out and in any event the act complained of fell a long way short of being capable of amounting to harassment. Race-related harassment – summary

[171]Both complaints of harassment comprehensively fail. Neither rests on treatment ‘related to’ race and neither was of sufficient gravity to be capable of constituting actionable harassment. Disability-related discrimination The Respondent’s knowledge of the disability

[172]We remind ourselves that the parties agree that the Claimant has been affected by FND since 17 April 2019 and that the condition has throughout amounted to a disability.

[173]As we have recorded above in our primary findings, the Claimant repeatedly refused the Respondent’s requests for medical evidence. His medical notes and records were not disclosed until 21 April 2021, more than four months after his employment had ended.

[174]We have also noted in our primary findings the Respondent’s unavailing attempts to agree with the Claimant a workable means by which an OH specialist might be instructed to examine him and prepare a report to assist in managing his sickness absence and making suitable decisions about any possible return to work.

[175]On the other hand, we have also noted that, on 7 October 2020, the Respondent received a copy of the first claim form, by which it was first made aware of the Claimant his having been diagnosed with FND.

[176]In these circumstances, we find that the only medical information available to the Respondent until it was served with the first claim form was the set of ‘fit notes’ issued by the Claimant’s GP following the commencement of the sickness absence. As we have recorded, these referred to symptoms such as abdominal pain, headaches, sleep disorder and latterly anxiety, but the constant thread through all of them was the repeated reference to stress. None made any reference to FND or even suggested the possibility of any significant mental health and/or neurological condition.

[177]On this material, we are satisfied that the Respondent was not aware of the Claimant’s condition of FND before 7 October 2020. We have reminded ourselves under the 2010 Act, s15(2), the ‘knowledge’ defence is for the employer to make out. As to actual knowledge, we are satisfied that the burden on the Respondent has been discharged.

[178]That brings us to constructive knowledge. Has the Respondent also shown that it could not reasonably have been expected to know that the Claimant had the disability (namely FND)? In addressing the question of constructive knowledge we have reminded ourselves of the EHRC Code of Practice on Employment (2011), which considers the proper application of the 2010 Act, s15(2) at paras 5.13-5.16. At para 5.15 it states: An employer must do all [it] can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.

[179]In our judgment, this part of the defence is established in respect of the period up to 7 October 2020. We have had regard in particular to the following factors.(1) Prior to going on sick leave on 17 April 2019 the Claimant had an excellent attendance record. In fact, on his case, he took not a single day’s sick leave during the entirety of his employment up to that date. There was nothing to point to any vulnerability to any psychiatric or neurological disorder.

(2) After learning of the decision to create the Head of Product post and appoint Mr Yik to it, the Claimant repeatedly voiced his vehement opposition to that course of action, claimed that it would severely prejudice his career and signalled that if the Respondent did not change direction he would have to ‘consider his options’. He did not argue or suggest that his health would be imperilled.

(3) On commencing sick leave, and over the many months which followed, the Claimant shunned contact from the Respondent, rebuffed its many requests for medical evidence and obstructed its repeated attempts to set up an OH examination by putting forward unreasonable and unworkable conditions.

(4) In these circumstances, and given the content of the ‘fit notes’, the Respondent had no foundation on which to base any reasonable assessment of the Claimant’s likely medical condition (if any). It is, in our judgment, impossible to say that it ought reasonably to have known that he was subject to any mental health/neurological condition. On the contrary, we are satisfied to a high standard that the Respondent could not have known before 7 October 2020 that he had any such condition, let alone that he had the particular condition of FND.

[180]As to the period from 7 October 2020 onwards, we see the matter differently. On that date, the Respondent had sight of the first claim form, in which the Claimant stated in terms that his condition had been diagnosed as FND. Mr Smith contends that, in the absence of supporting medical evidence, that amounted to mere assertion and was insufficient to fix the Respondent with the requisite knowledge (actual or constructive). We disagree. It seems to us that, at least in most circumstances, a statement by an employee to an employer, ‘I have been diagnosed with [condition]’ is sufficient to defeat a denial of actual knowledge of the condition. Of course, this statement does not by itself compel the employer to accept that the individual has the relevant condition, much less to concede that he or she is, in law, disabled. But that is a separate matter.

[181]And if we are wrong about actual knowledge, we find in the alternative that revelation of the diagnosis on 7 October 2020 was certainly sufficient to render the Respondent’s denial of constructive knowledge untenable. In the ordinary case, an employer informed of a diagnosis will not establish that it could not reasonably have been expected to know that the employee had the relevant condition, at least until it has investigated the matter carefully and reached an objectively defensible conclusion that the stated diagnosis has not been made or is wrong. Until that point, absent very special circumstances, the employer would not act reasonably in simply disregarding the information which the individual had supplied. Are there special circumstances here such as might have entitled the Respondent to decline to take at face value what it read in the first claim form? In our judgment the answer to that question must be no. The assertion of the diagnosis of FND was very clear. It was not inherently implausible. There was no suggestion on the part of the Respondent that the Claimant was an unreliable historian generally, much less so unreliable that a straightforward factual statement of the kind made in the claim form could safely be dismissed as false or mistaken.

[182]For these reasons, we are satisfied that the Respondent is fixed with knowledge (actual, alternatively constructive) of the Claimant’s FND as at 7 October 2020.

[183]So much for actual and constructive knowledge of the condition. We have not overlooked the fact that the defence under s15(2) is directed to knowledge of the disability. Does that make a difference? Perhaps in some circumstances it might, but we do not think that it can here. We accept that FND is not (unlike certain conditions) inherently a disability. But here it is common ground that the form of the condition which affects the Claimant is, and has at all relevant times been, a disability. Accordingly, it seems to us that knowledge (actual or constructive) of the condition must be equated with knowledge (actual or constructive) of the disability. The ‘something arising’

[184]As we have already stated, the ‘something arising’ relied on for the purposes of the claim under the 2010 Act, s15 is framed in the LoI, para 6(a)(i) in this way: The Claimant asserts that his disability makes it difficult to think in multiple layers, deal with unclear responsibilities and uncertainty of his allocated roles. The uncertainty is compounded when misrepresentation takes place. The case so advanced seems, on its face, unpromising - certainly where one reads the most significant instance of ‘unfavourable’ treatment (dismissal) alongside this formulation of the ‘something arising’. But its general meaning is clear. It conveys a complaint of a series of allegations of unfavourable treatment all of which are said to have been applied to the Claimant because of his difficulty with complex reasoning and managing uncertainty about his responsibilities and roles.

[185]In his closing submissions, para 31, Mr John, referring to the agreed formulation of the ‘something arising’, said this: That attempted formulation, whilst not incorrect, was made by [the Claimant] when a litigant in person and when under an acknowledged mental disability. The tribunal is invited to take a fair and sensible approach to the full extent of the ‘things arising’ from the disability which led to the unfavourable treatment of dismissal. It is submitted that the actual features of [the Claimant’s] condition are quite plainly the ‘something arising’ causing his inability to work. In other words, Mr John was seeking very deftly to amend the LoI in order to rely, in respect of the dismissal-based claim, on a repackaged ‘something arising’.

[186]Not surprisingly, Mr Smith strongly opposed the Tribunal permitting the Claimant to rely at the end of a multi-day trial on a different formulation of his case. The LoI had been constructed by the Tribunal on the basis of the ‘pleadings’ and representations of both parties in the course of an inordinately lengthy case management process. The Claimant’s attempt to vary it had been refused by the Tribunal and that refusal had been upheld by the EAT. And at the start of the trial before us, through his counsel, he had abandoned any residual ambitions to widen, or alter in any way, the scope of the case as defined in the LoI. It would be unjust and contrary to principle to allow him in closing argument to advance a new case.

[187]We are satisfied that the submissions of Mr Smith are to be preferred. The Tribunal has performed its proper function of defining the dispute in the light of the formal documents and the contributions from both sides. It was not its function to advise the Claimant as to how to put his case. The ‘something arising’ ultimately settled upon and adopted by the Tribunal was not logically incoherent or obviously unsustainable. It would have been open to the Claimant to rely on more than one ‘something arising’ but he did not elect to do so. He is a conspicuously articulate and intelligent individual and the statutory language is not complicated. Moreover, long before instructing Mr John, he had had the benefit of legal advice, certainly when his appeals were pending in the EAT. He appears to have raised no complaint before the EAT about the formulation of the ‘something arising’ in the LoI, and if we are wrong about that any complaint on the matter found no favour with Michael Ford KC. At the start of the hearing before us the only doubt about the LoI mooted on behalf of the Claimant was as to whether it was defective in not including a complaint of failure to make reasonable adjustments. But, as we have noted above, on instructions Mr John abandoned any such submission. The hearing then proceeded on the basis of common ground that the LoI properly defined all claims and issues for decision. By that point, at the very latest, the Tribunal was entitled to treat the scope of the case as settled and firmly decline any further attempt to reopen the question. In our judgment, it would be unjust to the Respondent and contrary to the interests of justice and the overriding objective (which have at their heart the need to ensure finality and proportionality in all stages of litigation) to entertain Mr John’s submission. For these reasons, we refuse it.

[188]Did the (only) applicable ‘something’ arise in consequence of the Claimant’s disability? Having regard to our primary findings concerning his FND condition and its effects upon him, we are satisfied that it did. Unfavourable treatment (i) – the handling of the second grievance

[189]The first alleged instance of unfavourable treatment, namely the refusal of Mrs Marks in or around April to May 2019 to conduct the Claimant’s second grievance in writing, appears in the LoI, para 6(a)(i).

[190]Given our primary findings set out above, we are driven to the inevitable conclusion that the unfavourable treatment of which the Claimant complains did not happen. Mrs Marks did not ‘refuse’ to conduct the grievance in writing. She did suggest that holding a grievance meeting would be beneficial. The Claimant was not persuaded and Mr Cruise then dealt with the matter in writing in accordance with his wishes. They Claimant was not treated unfavourably, by Mrs Marks or anyone else.

[191]We are not surprised that Mr John did nothing (or next to nothing) to press this claim in his closing submissions. Unfavourable treatment (ii) – failure to contact the Claimant when on sick leave

[192]The second complaint of unfavourable treatment (LoI, para 6(b)(ii)) accuses Mrs Marks of failing to contact the Claimant during his first six months’ absence on sick leave (which, as we have recorded, commenced on 17 April 2019).

[193]Here again, we are satisfied that the complaint does not bear scrutiny when measured against the facts as we have recorded them in our primary findings. There was ample contact during the relevant period, particularly in relation to the Claimant’s second grievance and the GIP application. In circumstances where he had returned his work mobile phone, stipulated (by necessary implication) that contact on his private mobile phone should be limited to urgent matters and insisted that email contact must be on his work email address, we cannot accept that Mrs Marks can be faulted for failing to make additional contact with him purely for the purposes of offering support and sympathy in connection with his stated medical unfitness to work which, on the information made available to her, derived wholly or mainly from work-related stress. It was not in dispute that all communications from Mrs Marks were courteous and that she did on occasions asked after his health and wish him well in his recovery. Objectively viewed, we consider that the style and level of contact between Mrs Marks and the Claimant was not at all unfavourable and that, had she sought to engage with him more frequently, she would have faced the obvious risk of being accused of subjecting an unwell employee to oppressive and needless communications. Unfavourable treatment (iii) – mishandling of the GIP application

[194]The complaint as finally pursued is that Mrs Marks and Mr Worrall mishandled the GIP application on behalf of the Claimant between August and September 2019, in three respects (LoI, para 6(b)(iii)(1), (2) and (5))10. We will consider them in turn.

[195]Before doing so, we should make one preliminary point. Although these allegations are directed at Mrs Marks and Mr Worrall, there is no evidence that Mr Worrall played any part in the material events relevant to Allegations(1) or

(2) during the relevant period. Accordingly, we consider those Allegations only in so far as they are directed at Mrs Marks.

[196]Allegation (1) contends that Mrs Marks deliberately delayed the start of the GIP process in circumstances where the Respondent was contractually required to commence it in May/June 2019.

[197]On our primary findings, there was no deliberate delay. We accept Mrs Marks’s evidence that she and Ms Ronco took advice from the Respondent’s broker and were guided by it. There was no contractual obligation to commence the claim in May or June 2019. That contention has not been pursued before us. The paltry medical evidence available to Mrs Marks (the ‘fit notes’) did not point to the Claimant being unlikely to be fit to return to work before the end of the deferred period. In any event, there was no unfavourable treatment. The timing of the initiation of the GIP application did not prejudice the Claimant in any respect. The claim was issued before his sick pay expired.

[198]Allegation (2) complains that Mrs Marks misrepresented the Claimant’s medical condition to Zürich. On our primary findings, that allegation is untenable. In 10 Allegations (3) and (4) were abandoned in the course of the hearing before us. our judgment, it is quite unfair to characterise Mrs Marks’s interactions with Zürich as including any representation about his clinical condition. For want of any medical evidence, she was in no position to offer any opinion on that. She did express the view that the origin of his indisposition appeared to be workplace stress. But that:(a) was not to exclude the possibility of a medical condition caused by stress,

(b) was precisely what the ‘fit notes’ appeared to say and

[199]Allegation (5) asserts a failure to investigate the Claimant’s complaint of 30 September 2019 that the decision of Zürich was wrong and the result of its having been misled by the Respondent. It might be said that since this complaint falls under the umbrella of LoI, para 6(b)(iii) it should be seen only as alleging a failure to investigate the complaint of 30 September 2019 on the day it was received (the last day of the two-month period within which these allegations are said to fall). We decline to apply such a technical reading to the LoI, and we rest our conclusions on the primary findings made above which cover the period up to Mrs Marks’s departure on maternity leave on 18 October 2019.

[200]As we have said, Mr Worrall did have some involvement in events relevant to Allegation (5). This was between very late September and mid-October 2019. As we have noted in our primary findings, in that period Mr Worrall proposed a phone (or video) call, to which the Claimant did not respond, and forwarded to him some documents which he had requested. Then, on 16 October 2019, the grievance process commenced, in which his complaint about the handling of the GIP claim was fully examined.

[201]In our judgment, it cannot be said that there was any failure by Mrs Marks or Mr Worrall or anyone else on behalf of the Respondent to take up the Claimant’s challenge to the decision of Zürich to reject the GIP claim. Mrs Leen in particular pursued his interests with notable skill and energy. As we have recorded, by the time the process was exhausted, the Claimant had received seven adjudications on, or arising out of, the claim11. Nor can it be said that the rejection of the claim resulted from any misrepresentation by Mrs Marks, Mr Worrall or anyone else on behalf of the Respondent.

[202]For these reasons the complaint of unfavourable treatment under Allegation (5) is, in our judgment, entirely groundless. Unfavourable treatment (iv) – pressure in relation to an OH assessment

[203]This complaint (LoI, para 6(b)(iv)) accuses Mrs Marks and Mr Worrall of pressurising the Claimant from December 2019 onwards to attend an OH assessment with a consultant of their choice.

[204]On the strength of our primary findings above, we are satisfied that no unfavourable treatment is established. We consider that the Respondent’s 11 These were: Zurich’s decision on the claim, Zurich’s decision on the appeal, Zurich’s decision on the complaint, Mr Cruise’s decision on the grievance, Mrs Leen’s decision on the grievance appeal, the ruling of the LOS adjudicator, and the decision of the Ombudsman. approach was entirely reasonable and that, unfortunately, the Claimant’s was anything but.

[205]The Claimant did not at any time dispute the appropriateness of obtaining an OH assessment. The difficulty throughout resulted from his insistence on dictating terms under which such an assessment might be arranged with which the Respondent could not reasonably have been expected to agree. As we have recorded, at the capability meeting on 11 December 2020, following well over a year during which the Respondent had repeatedly made concessions and put forward compromise proposals, the Claimant’s position remained that any OH assessment (for the cost of which the Respondent would be liable) must be carried out by a practitioner(a) to be chosen by him alone;

(b) whose identity would not be divulged to the Respondent until the report was served on it; and

(c) with whom the Respondent would be prohibited from having any contact. The central purpose of an OH assessment is to secure independent medical evidence to assist an employer to discharge its functions and obligations appropriately in light of an employee’s medical condition and its consequences. No employer could reasonably be asked for a referral to be conducted on its behalf by a practitioner over whose selection it had no control and with whom it was prohibited from communicating. The Claimant supplied no justification for the bizarre procedure upon which he was insisting. Nor could he.

[206]Did the Respondent ‘pressurise’ the Claimant? Certainly, Mrs Leen and, after October 2020, Mrs Marks did make repeated efforts to persuade the Claimant to agree sensible arrangements to enable an OH referral to be made. These overtures were expressed in courteous language and rightly made the point, repeatedly, that it would serve his interests to cooperate. We are satisfied that in so far as pressure was applied to the Claimant it was both necessary and proportionate.

[207]To the extent that pressure was applied to the Claimant in respect of an OH assessment, almost all of it came from Mrs Leen, against whom he makes no allegation of unlawful conduct. There was no material difference in the tone or content of Mrs Marks’s communications on the same subject following her return from maternity leave in October 2020.

[208]In summary, we are satisfied that the complaint here is about conduct by the Respondent which was practical, rational and entirely unobjectionable. There was no unfavourable treatment. Unfavourable treatment (v) – dismissal

[209]It goes without saying that here (LoI, para 6(b)(v)) the Claimant establishes unfavourable treatment. Was any unfavourable treatment ‘because of’ the ‘something arising’?

[210]To recapitulate, our reasoning so far has eliminated all alleged instances of unfavourable treatment bar one, the dismissal.

[211]For the reasons which we have explained, the sole question here is whether the Claimant was dismissed because of the ‘something arising’ identified in the LoI, para 6(a)(i), namely his difficulty in thinking in multiple layers and dealing with unclear responsibilities and uncertainty about his allocated roles.

[212]In our judgment, the answer to that question must be no. There is no basis for supposing that Mrs Marks rested her decision to dismiss on her perception of the Claimant’s cognitive functions and/or any uncertainty he might feel about his functions and responsibilities. She did not have any reason to doubt his cognitive capacity or to wonder whether he was clear about his functions and responsibilities. Moreover, she had no reason to turn her mind to these questions. They did not arise. She dismissed the Claimant on capability grounds. The main factors on which her decision was based were that he had been away from work for an extended period; there was no apparent prospect of that period coming to an end; his long-term absence had prejudiced the Respondent’s business and threatened, if continued, to cause it further prejudice; and the Respondent had not been provided with any evidential basis on which to consider any alternative to dismissing him on capability grounds.

[213]Accordingly, since the only unfavourable treatment was not applied to the Claimant because of the ‘something arising’, the claim under the 2010 Act, s15 necessarily fails. Justification: a proportionate means of achieving a legitimate aim?

[214]For completeness, we have gone on to consider whether, if we had reached a different decision on Mr John’s request to amend the LoI to specify a different ‘something arising’ in respect of the dismissal-based claim (or, as he would prefer to put it, simply to apply a generous reading to the formulation as it stood), the result would have been the same.

[215]The starting point here is that we would have found, on this approach, that the unfavourable treatment was indeed ‘because of’ the ‘something arising’ for which Mr John contended. There was nothing between the parties on this: they agreed that the reason for the Claimant’s dismissal was the fact that he was judged to be medically unfit to perform his duties. Accordingly, the outcome would have turned on the proper application of the 2010 Act, s15(1)(b), which places upon the employer the obligation of showing that the treatment was a proportionate means of achieving a legitimate aim.

[216]As to aims, the Respondent relied on three relevant to the decision to dismiss: managing its resources in an efficient and effective manner; employing employees in roles which they are capable of performing (and, conversely, not continuing to employ employees in roles which they are not capable of performing); and providing an efficient and effective service, including in respect of product development and management (LoI, para 6(e)(vi), (vii) and (viii)). We accept that the Respondent had and has those aims and that they were and are legitimate.

[217]As to means, we are clear that the measure of dismissal was, in all the circumstances, a proportionate means of achieving the Respondent’s legitimate aims. Our main reasons are the following.(1) At the time of the decision to dismiss, the Claimant had been absent from work for a very long time – almost 21 months.

(2) His contractual right to sick pay had long since expired.

(3) The GIP application, appeal and complaint had been fully considered and determined, as had the related (second) internal grievance and appeal and the two-stage FOS complaint.

(4) Neither at the time of the capability hearings, nor in the proceedings before the Tribunal, was it any part of the Claimant’s case to argue that his dismissal would be, or was, unlawful as being in breach of his contract (for example by virtue of contravening an implied term of the sort recognised in Aspden v Webbs Poultry and Meat Group (Holdings) Ltd

[1996] IRLR 521

HC).

(5) Despite numerous requests to do so, the Claimant had refused to provide any medical evidence to the Respondent or to answer questions concerning his medical condition.

(6) Despite the sustained efforts of Mrs Marks and Mrs Leen, the Claimant had unreasonably refused to engage with their proposals aimed at agreeing arrangements for an OH referral, with the result that the Respondent was denied the opportunity of an independent assessment of his condition and how any return to work might be achieved.

(7) There was no realistic possibility of the Claimant returning to his role save, perhaps, on terms, to which the Respondent could not possibly agree, involving reversing the structural changes of March 2019 and restoring his status and reporting lines as they had stood immediately prior to that date.12 Selfevidently, he had no right to dictate terms to his employer and there was no question of the senior management entertaining what he proposed.

(8) Absent medical evidence or any OH input, it was not practicable to inquire whether any alternative role might be suitable for the Claimant.

(9) The Claimant’s absence had caused prejudice to the Respondent’s business and would inevitably cause increasing prejudice the longer it continued.

(10) The Claimant was made aware that the capability process might lead to dismissal.

(11) The Claimant made no practical contribution at the first capability meeting.

(12) The Claimant declined to attend the second capability hearing.

[218]Finally, we turn to the argument which seems to have been raised for the first time during the trial before us, that the Respondent was at fault, and acted unlawfully, in proceeding to dismiss without first, in light of the revelation of the FND diagnosis on 7 October 2020 (upon receipt of the first claim form),(a) unilaterally resuscitating or renewing the GIP claim (or perhaps presenting a fresh one), or at least

(b) prompting or encouraging the Claimant to take such steps. The logic appears to be that this alleged failure defeats the Respondent’s case on proportionate means (for the purposes of the s15 claim) and entitles the Claimant to succeed on his parallel claim for unfair dismissal.

[219]Although the argument was attractively presented by Mr John, we are clear that it must be rejected, for numerous reasons. We start with proposition (a). As 12 The Claimant had told Mrs Leen in terms that reversal of the March 2019 changes was a ‘prerequisite’ to his return to work. His case at trial, however, appeared to be that there had never been any possibility of a return to work in any event. His evidence (witness statement, para 3) was that he had been unfit to undertake work of any kind since April 2019 and remained wholly incapable of working. was common ground throughout, membership of the GIP scheme was a contractual benefit which it was open to the Claimant to invoke or not, as he chose. It would not have been proper for the Respondent (let alone its legal duty) unilaterally and without his authority to press Zürich with a fresh claim on his behalf. A case so put13 would be obviously untenable.

[220]Proposition (b), while, unlike (a), not obviously wrong in principle, is, in our view, clearly unsustainable given the relevant facts and circumstances. We have a number of grounds.(1) The Respondent had been aware since 20 November 2019 (the date on which the appeal outcome was given) that the Claimant had, on 13 November 2019, supplied his medical records to Zürich (although he had declined to make any disclosure to the Respondent).

(2) The Respondent had been given no reason to suspect that the disclosure, extending to a date many months after the start of the Claimant’s sick leave, might not fully and accurately document his medical condition.

(3) The first claim form referred to the FND as having started in April 2019 and was not worded in such a way as to suggest that the diagnosis was recent at the date of issue of the claim form (17 May 2020). Rather, the wording suggested that the diagnosis had followed shortly after the onset of the condition.

(4) The Claimant’s behaviour after 17 May 2020 had not been consistent with the diagnosis having been recent on that date. If it had been recent, it would have been natural for him to draw attention to it at the time, as relevant to the Respondent’s management of his ill-health absence generally and/or to Zürich’s treatment of the GIP claim and. He did not do so.

(5) Nor did he, at any time up to his dismissal, say or suggest to the Respondent that Zürich had been, or might have been, unaware of his FND.

(6) In the circumstances, the natural inference from the Respondent’s perspective was that Zürich had been in possession of the medical evidence, including that relating to the FND, by 13 November 2019.

(7) On 16 November 2020, before the commencement of the capability procedure, the Respondent had been made aware of the FOS adjudicator’s decision rejecting the Claimant’s complaint. There was no reason for Mrs Marks to doubt that the Claimant had put before the adjudicator any evidence which might help his complaint. That evidence could reasonably be assumed to include medical evidence (if any) generated after the medical records were disclosed to Zürich on 13 November 2019.

(8) In the course of the capability process, it was open to the Claimant at any time to raise the question of the diagnosis and its timing (if the timing was a relevant factor) and argue that they warranted revisiting the GIP claim, but he did not do so. On the contrary, at no point between the failure of the GIP appeal in November 2019 and the dismissal did he signal any departure from his line unequivocally stated in correspondence with Mrs Leen that the Zürich claim was closed and he would not contemplate pursuing it further.

(9) As we have recorded, the Claimant had consistently and repeatedly (before and after 7 October 2020) refused to provide the Respondent with any medical evidence or to co-operate to enable it to commission evidence through an OH referral, and there was no realistic prospect at the time of the dismissal that his attitude on that matter would change.

(10) In all the circumstances, throughout the period from her return to work (in mid-October 2020) up to the dismissal, Mrs Marks had no reason to 13 We are not entirely sure whether Mr John put his case quite so high (see eg his submissions, paras 59, 60). consider pausing the capability process in order to initiate a further examination of the Claimant’s condition or its implications. Discrimination arising from disability – summary

[221]Claims (i) and (ii) fail for want of knowledge (actual or constructive) on the part of the Respondent that the Claimant had the disability of FND.

[222]All claims bar (v) (based on the dismissal) fail on the ground (or further ground) that no unfavourable treatment is shown.

[223]The dismissal-based complaint (claim (v)) fails because the Claimant was not dismissed because of the ‘something arising’ as framed in the LoI, and the attempt on behalf of the Claimant to re-formulate it in closing submissions is refused.

[224]Accordingly, all claims under the 2010 Act, s15 fail.

[225]Had the Tribunal permitted the Claimant to amend the ‘something arising’ in the manner proposed, the Tribunal would have held that the dismissal was because of the ‘something arising’ so substituted, but the claim would nonetheless have failed on the basis that the dismissal was a proportionate means of achieving a legitimate aim. Victimisation Protected act

[226]The only protected act now relied upon is the informal grievance of 27 September 2017 (LoI, para 8(a)(ii) and Annex 3). The parties disagree as to whether it satisfies the requirements of the 2010 Act, s27(2). Specifically, the argument focused on s27(2)(d). Here, we prefer the submissions of Mr Smith. It seems to us that, on a fair, objective reading, the two isolated references in the grievance to ‘discriminatory’ treatment and ‘discrimination’ do not allege discrimination in a form made unlawful under the 2010 Act, but rather raise complaints of generalised unfairness. It is significant that the opening paragraph specifies that the grievance is about ‘unfair treatment’. As we understand the Claimant’s case, it is that the grievance raises an allegation of race discrimination in some form, but no protected characteristic is specified. No comparator is identified (real or hypothetical). And the reference in the third paragraph to Mr Mulholland ‘playing around with my condition’ seems, if anything, to suggest treatment based on something other than the Claimant’s race, namely his (as he saw it) insecure immigration status. While immigration status may be said to be a ‘function’ of race, it cannot be equated with race. It follows that discrimination against a person ‘because of’ his or her immigration status does not constitute direct race discrimination and is not proscribed under the 2010 Act.14 On the authority of Waters (cited above), an allegation of discrimination so put would not identify treatment capable of contravening the statute and accordingly would not 14 Taiwo v Olaigbe & another

[2016] UKSC 31

. qualify as a protected act. While acknowledging that the Tribunal must not construe the grievance in an unduly narrow or technical way, we are mindful of our duty to guard against reading into it an allegation which it does not contain. It is for the Claimant to demonstrate that he has done a protected act. In our judgment he fails to do so.

[227]For want of a protected act, the complaint of victimisation falls at once. But in case we are wrong on the threshold question, we will go on to consider the other elements of the claim. Detriments

[228]Of the original eight detriments relied on, seven are pursued. We will retain the original numbering (LoI, para 8(b)(1)-(8), excluding (3)).

[229]Allegation (1) complains about the handling of the grievance of 27 September 2017 and the ‘false and defamatory’ remarks concerning the Claimant’s behaviour in the ‘grievance appeal outcome’ dated 29 November 2017. In fact, there was no grievance appeal. Rather, there was an informal stage followed by the formal grievance determined by Mr Rippey. His decision was not the subject of any further appeal.

[230]In our judgment, the Claimant fails to demonstrate any detriment under Allegation (1). Having reminded ourselves of our primary findings above, we are satisfied that the decisions of Mrs Marks at the informal stage and Mr Rippey at the formal stage were fair, balanced and rational. And procedurally, the handling of the entire grievance exercise was reasonable and unobjectionable. As to the allegedly ‘false and defamatory’ remarks, in our view Mrs Marks was restrained in her use of language and it was entirely proper for her to remind the Claimant of the need to maintain a professional standard of behaviour. If he harbours a genuine sense of grievance about any aspect of Allegation (1), he is not justified in doing so.

[231]Allegation (2) accuses Mrs Marks and Mr Worrall of subjecting the Claimant’s to detrimental treatment by ‘strongly objecting’ in December 2017 to a change in his corporate title from VP to SVP. Based on our primary findings above, we are again satisfied that no arguable detriment is shown. In the end, rightly, the Claimant’s case was not put on the basis that he ought to have been promoted mid-year, rather than (in accordance with the Respondent’s standard processes) at the year end (ie in March/April 2018). And, as we have noted, he was indeed promoted to SVP with effect from 1 April 2018. The only alleged detriment lies in the undisputed fact that Mrs Marks and Mr Worrall joined Mr Ikegaya in expressing reservations about the appropriateness of promoting the Claimant at that stage, given the widespread concerns about aspects of his behaviour towards those around him. But that was no detriment. There was a debate among senior managers, who held widely divergent views. Those views each way were entirely permissible. And Ms Drews prevailed, with the consequence that the Claimant was rewarded with promotion at the earliest date possible under the Respondent’s procedures.

[232]Allegation (4) states that, in February 2018, Mrs Marks and/or Mr Worrall ‘claimed that the Claimant had formally commenced his own ILR application without authorisation from HR’. The alleged detriment is somewhat elusive. In any event, the case as framed in the LoI does not correspond with the facts as we have found them. What happened was that, most presumptuously, the Claimant approached Magrath directly concerning his anticipated ILR application, without seeking the Respondent’s authority. We have no doubt that he knew perfectly well that he had no business to make that contact behind his employer’s back. Not surprisingly, when made aware of it, Mrs Marks wrote to him to say that the application would be run by the HR team at the appropriate time and that he should not contact Magrath directly. Her message was firm but not discourteous. Here again, the Claimant raises nothing about which sensible complaint can be made.

[233]Allegation (5) makes the complaint that, in February 2018, Mrs Marks and/or Mr Worrall ‘deliberately delayed’ the commencement of the ILR application process. Again, there was no detriment. As our primary findings above record, the Respondent received legal advice that the earliest possible date for making the application was variously:(a) 5 March 2018,

(b) 13 March 2018 and

(c) an unspecified ‘earlier’ date. It was not until shortly before 26 February 2018 that Mrs Marks was made aware that an application could be initiated at once. Accordingly, on that date, she issued instructions to Magrath to launch the application. There was no delay, much less deliberate delay.

[234]Allegation (6) relates to the ‘Promotions Expectations letter’ sent by Mr Worrall to the Claimant on 16 April 2018 (Annex 4 to the LoI). The Claimant says that the sending of the letter cost him a detriment because ‘each and every comment about his conduct’ was false and defamatory. The letter congratulated the Claimant on his promotion to SVP. It went on to say that the promotion would carry with it ‘an increased set of expectations’ about how he would represent the firm internally and externally and the standards which he would set as a senior member of the organisation. It continued: Junior staff will increasingly look to you for guidance in the way that we deal with each other and as a role model and the levels of professionalism and integrity we should aspire to. I am aware that over the last eighteen months there have been a number of instances where there have been some problematic interactions in these areas, and that we hope will not be repeated. You are clearly performing the technical aspects of your role well, so I hope that the focus you have on this part of your role is increasingly transferred to the behavioural and leadership aspects of your broader SVP role … In our judgment the Claimant identifies no arguable detriment. Mr Worrall’s remarks were couched in careful and restrained language. They were, we find, sincere and evidenced-based. They reflected genuine concerns shared widely across the senior management (including Ms Drews, the Claimant’s most consistent champion). It is not a detriment for an employee in a hierarchical organisation to receive advice from above concerning his or her conduct and attitude in the workplace, even if it is unwelcome. And an employee who resents advice for want of the self-awareness to appreciate that it is apposite cannot rely on that deficiency to convert a perfectly proper comment into a potentially actionable detriment.

[235]Allegation (7) was framed in the LoI as raising complaints about the annual performance scores of 4 in March 2018 and 3 in March 2019 but by the end of the hearing the Claimant relied only on the latter. The LoI notes that the Claimant holds Mrs Marks and Mr Worrall responsible for the score complained of.

[236]Here again, we find no detriment. As we have noted, 3 is a satisfactory score. The expectation is that a large proportion of the Respondent’s employees will be scored at 3. In the relevant year, 39 out of 66 employees received that score. The score related to the Claimant’s first year at SVP level. There is no evidence before us to suggest that he was disadvantaged in receiving a score of 3.

[237]The claim is, in any event, unsustainable because there is no evidence of Mrs Marks or Mr Worrall having played any part in the selection of the Claimant’s score. It is clear on the evidence that the score was arrived at by agreement between Mr Ikegaya and Mr Yeo and that Mrs Marks and Mr Worrall had nothing to do with it. The Claimant makes no complaint of detrimental treatment at the hands of Mr Ikegaya or Mr Yeo.

[238]Allegation (8) complains of detrimental treatment in the form of the decision not to ‘promote’ the Claimant to the position of Head of Product, for which he holds Mrs Marks and Mr Worrall responsible.

[239]Once more, we find here that the detriment relied on is not established. It was not a detriment for the Claimant not to be appointed to a role to which, given the key criteria set by the senior managers, he was not appointable. He had neither the necessary expertise, reputation and leadership skills, nor the requisite connection with the Singapore office. We think that he was and is genuinely aggrieved by the treatment complained of but we do not regard his sentiment as justified.

[240]Moreover, as we have recorded in our primary findings, the decision to second Mr Yik to London was taken by the senior managers whom we have identified. They did not include Mrs Marks or Mr Worrall. In so far as any detriment was experienced by the Claimant, neither of those individuals played any part in it. Was any detriment done because the Claimant had done the protected act?

[241]Since we have found that the Claimant has failed to demonstrate a protected act or any detriment, we might be forgiven for moving on at this point. But in deference to the careful submissions of both counsel, we will complete the analysis.

[242]In our judgment, there is simply nothing pointing to any connection between the (alleged) protected act and the (alleged) detriments. We detect no pattern of disadvantageous treatment applied to the Claimant following the (alleged) protected act. We have been shown no documentary evidence suggestive of any intention to disadvantage him because of the grievance of 27 September 2017 (or anything done or said by him in the course of the grievance procedure which followed). Victimisation – summary

[243]The complaint of victimisation fails because:(a) no protected act is shown; and

(b) no detrimental treatment is established; and in any event

(d) in so far as any relevant detriment was suffered, it was not ‘because of’ the (alleged) protected act. Jurisdiction – the 2010 Act claims

[244]Our reasoning thus far that all claims fail on their merits faces us with a new question. Was there ‘conduct extending over a period’ such as to enable the 2010 Act, s123(3)(a) to bring any claim presented outside the primary three-month period (as extended by the Early Conciliation provisions) within time? In our judgment, there was not. The word ‘conduct’ must be taken to mean unlawful conduct and we have found that there was none.

[245]That does not of itself dispose of the jurisdictional point. The Tribunal has a residual power to substitute for the three-month period ‘such other period’ as it thinks ‘just and equitable’ (the 2010 Act, s123(1)(b)). But it would plainly be idle and anything but ‘just and equitable’ to exercise a discretion to bring within time any claim which has already been found to be without substance.

[246]It follows that all claims presented outside the primary period (as extended by the early conciliation provisions) fail for the further reason that, on time grounds, the Tribunal has no jurisdiction to entertain them. Unfair dismissal

[247]We have reminded ourselves of our primary findings of fact and our secondary findings and conclusions in respect of the discrimination arising from disability claim. We will not repeat those here.

[248]What was the reason or principal reason for dismissal? We are quite satisfied that it was the perception of Mrs Marks that the Claimant was not medically capable of performing his role and there was no practicable alternative to dismissing him on capability grounds. That was a reason relating to capability and, as such, a potentially fair reason to dismiss.

[249]Did the Respondent act reasonably or unreasonably in treating the reason as a sufficient reason to dismiss? Given that we have found that, had the question arisen, the Respondent would have made out a good defence under the 2010 Act, s15(2), it seems to follow almost inevitably that, with no burden either way, it must succeed in resisting the unfair dismissal claim. In any event, for the reasons given above in respect of the claim under s15, we find that the decision to dismiss, taken by Mrs Marks at the end of a fair process, was reasonable and fell very comfortably within the range of permissible options open to her in the circumstances.

[250]It follows that the complaint of unfair dismissal fails. Outcome and Postscript

[251]For the reasons given, all claims fail and the proceedings as a whole are dismissed.

[252]In arriving at our conclusions on the claims under the 2010 Act, we have not had recourse to the burden of proof provisions. They would have added nothing in circumstances where we have most certainly been in a position to make all necessary primary and secondary findings. But for the avoidance of doubt we can say that, had we applied the provisions, we would have found that the Claimant had entirely failed to make out a prima facie case and that, even if the burden (on any matter) had passed to the Respondent, we would have found it amply discharged.

[253]We regret this litigation, which has been hugely wasteful, not only of financial resources but also of the energy of many talented people (on both sides). We hope that the Claimant will learn some lessons (however uncomfortable) about judgement and self-awareness. Although successful, the Respondent should also learn certain lessons, especially about the value of publishing, updating and abiding by policies to inform the workforce and guide decision-making in important areas such as visa and ILR procedures, promotion rules and protocols, management of ill-health cases (particularly those involving mental health conditions) and operation of the GIP scheme.

Introduction

[1]By a reserved judgment with accompanying reasons running to 253 paragraphs sent to the parties on 7 November 2023 following a hearing held on 2- 20 October 2023 (the last two days being devoted to private deliberations in chambers), this Tribunal dismissed all the Claimant’s claims either on withdrawal or on their merits and held that of those dismissed on their merits, all bar three (two under the Equality Act 2010 and the complaint of unfair dismissal) also failed on the ground that they had been presented out of time and so fell outside the Tribunal’s jurisdiction. That document should be read alongside these reasons.

[2]On 4 December 2023 the Respondent presented an application for costs, claiming £1.3 million. Detailed grounds were supplied.

[3]On 15 December 2023, by a letter of some 16 pages, the Claimant resisted the application, giving detailed grounds for doing so.

[4]The Respondent reconsidered its position in short order and gave notice that its application for costs would be limited to £20,000, the maximum sum awardable without a detailed assessment.

[5]In correspondence the Claimant pursued various applications relating to the dispute over costs, necessitating an exceptional degree of intervention by the Tribunal. Two were pressed up to the hearing. We will return to them shortly.

[6]The costs application came before us on 15 February this year with two days allocated by way of a ‘remote’ hearing by CVP. The Claimant was represented by his wife, Ms D Kasimova. The Respondent appeared by Mr Andrew Smith, counsel, who had represented it throughout.

[7]The judge had given advance notice that the Tribunal would not be able to sit on the afternoon of the first day of the listing and that the parties would be expected to complete any evidence and oral argument on the morning of that day, leaving day two for the Tribunal’s private deliberations and judgment-writing.

[8]Of the two pre-hearing applications by the Claimant, the first was not pursued before us. He had sought some form of privacy order to protect certain information concerning his finances but, on being(a) assured that the Tribunal would approach such material discreetly and place it on the record only to the extent that it was necessary to do so and

(b) reminded of the cardinal principle of open justice, Ms Kasimova, having taken the Claimant’s instructions, told us that she would not seek the order which had been proposed. The second application had sought an order for the Respondent to reveal the costs which it had incurred (or committed) in pursuit of the costs application. We stated our preliminary view that it would not be proportionate to grant such an order, but that the Claimant would be free to make points (if so advised) about the animus or motivation which, he felt, might underly the costs application. After taking the Claimant’s instructions Ms Kasimova did not expressly abandon or withdraw the application, but nor did she press us for a formal adjudication upon it. Accordingly, we left the matter there. But for the avoidance of any doubt, if a ruling had been required, it would have been to reject the second application since (a) it was directed to a point which was largely irrelevant (what mattered was not why the Respondent had applied for costs but whether the application had merit) and (b) it would obviously offend against the overriding objective and in particular the principle of proportionality (see the Employment Tribunals Rules of Procedure 2013, r2) to entertain it.

[9]Preliminaries completed, Mr Smith told us that he would not seek to crossexamine the Claimant on his means. Accordingly, we moved at once to his oral submissions, which occupied about half an hour. After a second break, we next heard Ms Kasimova in reply, which took about an hour and a half, inclusive of breaks. The hearing on day one was completed at about 12.40 p.m. Day two was utilised as anticipated.

The applicable law

[10]The power to make costs awards is contained in rule 76 of the Employment Tribunals Rules of Procedure 2013, the material part of which is the following: (1) A Tribunal may make a costs order … , and shall consider whether to do so, where it considers that – (a) a party … has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success. As the case-law explains, the rule poses two questions: first, whether the Tribunal has power to make an order; second, if so, whether the discretion should be exercised (see eg Oni v Unison [2015]

UKEAT/0370/14

[11]By rule 84 it is provided that, when considering whether to make a costs order and, if so, in what amount, the Tribunal ‘may’ have regard to the putative paying party’s ability to pay any award.

[12]We are mindful of the fact that orders for costs in this jurisdiction are, and always have been, exceptional. Employment Tribunals exist to provide informal, accessible justice for all in employment disputes. We recognise that, if Tribunals resorted to making costs orders with undue liberality, the effect might well be to put aggrieved persons, particularly those of modest means, in fear of invoking the important statutory protections which the law affords them. It would be contrary to the purpose of the Tribunals if parties to disputes declined to exercise their right to bring (or contest) proceedings as a result of unfair economic pressure. On the other hand, we also bear in mind that, when our rules of procedure were revised in 2001, the Tribunal was for the first time not merely permitted, but obliged, to consider making a costs order where any of the prescribed conditions (vexatiousness, abusiveness etc) was fulfilled, and a new and wider criterion of unreasonableness was added. It seems to us that these innovations, preserved in subsequent revisions of the rules, indicate a policy on the part of the legislature to encourage Tribunals to exercise their costs powers more freely than they did in the past, where unmeritorious claims or defences are pursued or where the manner in which litigation is conducted is improper or unreasonable.

[13]Where the discretion to make a costs order is engaged, the Tribunal must have regard to all relevant circumstances. One factor which is often significant is whether the putative ‘paying party’ has, or has not, been legally represented. The Tribunal has been warned against judging unrepresented litigants by the same standards as professional representatives (see eg AQ Ltd v Holden

[2012] IRLR 648

EAT).

[14]The word ‘may’ in r84 means what it says: it conveys a discretion. But the Employment Appeal Tribunal has commented that it will very often be appropriate to take account of means and the Tribunal should always give reasons for its decision whether or not to do so (see Jilley v Birmingham & Solihull Mental Health NHS Trust

UKEAT/0584/06

and

UKEAT/0155/07

). Materials

[15]We had before us a bundle of documents of about 500 pages, the Claimant’s witness statement directed to the subject of his means, Mr Smith’s skeleton argument and a bundle of authorities. The rival cases on costs

[16]The parties have argued their positions very fully on paper and their contentions can largely be left to speak for themselves. In bare summary, Mr Smith’s main case was that a costs award was warranted because the Claimant had acted unreasonably(a) in bringing claims which, as he must have known, had no merit and

(b) in the manner in which he had conducted the litigation. It followed that the Tribunal had power to make an order. Moreover, it should exercise the power because this was a bad case and the Claimant had capital assets and income potential such that he had ample means to find the modest sum claimed.

[17]Ms Kasimova argued that the claims had been arguable and properly brought and fiercely denied that the Claimant had acted unreasonably in the way in which he had conducted them. On her case, the unreasonableness had all been on the Respondent’s side. Analysis and conclusions

[18]On balance, we are not persuaded that the Claimant acted unreasonably in bringing his claims. The fact that they comprehensively failed does not by itself justify that conclusion. They are not shown to have been brought in bad faith. They did not fail on account of resting on a false narrative and although some were, on analysis, shown to be notably weak, we cannot say that any had no reasonable prospect of success. Bearing in mind the dangers of hindsight and the allowances to be made for an unrepresented party, we find that the Respondent’s first argument falls short of establishing unreasonableness of the sort which engages the statutory discretion. Rather, the wise and humane observations of the EAT in ET Marler Ltd v Robertson

[1974] ICR 72

(Sir Hugh Griffiths and members) seem to us to be in point (p74): Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants once they took up arms.

[19]Turning to unreasonable conduct, we see matters quite differently. In our judgment the Claimant’s conduct of this litigation was grossly unreasonable in numerous respects. We could almost leave the litany of unreasonable acts and omissions set out in the Respondent’s letter of application of 4 December 2023, pp2-4 to speak for itself.1 In particular, unreasonableness is manifested in the numerous unmeritorious applications which the Claimant has pursued, his repeated breaches of case management orders and his many groundless appeals 1 See also our observations in our original Reasons, at para 6. against the Tribunal’s procedural decisions. The massive expense in time and trouble to which he has put the Respondent is out of all proportion to the relatively straightforward issues for decision. Likewise his squandering of the Tribunal’s meagre and overstretched judicial and administrative resources. He is, as we have found, a highly articulate and intelligent individual and we have no doubt that he has been fully aware throughout of the actual or likely consequences of conducting the dispute in the style and manner in which he has chosen to conduct it. There is no medical evidence before us to suggest that his behaviour can be excused or explained on medical grounds. (No such argument was advanced – by way of defence or mitigation. Rather, his case before us (through Ms Kasimova) was simply to deny any unreasonableness and press ambitious arguments seeking to place the blame for the procedural history on the Respondent.) In the circumstances, we conclude without hesitation that the Claimant’s conduct of the proceedings has been such that the Tribunal has jurisdiction to make a costs order.

[20]Should the Tribunal exercise its power to award costs and if so, in what sum? We take the view that, in principle, a costs order would be entirely proper and that the appropriate award would be the capped sum claimed, namely £20,000. This is a particularly bad case and the award would represent little more than token compensation for the costs to which the Claimant has quite unjustifiably put the Respondent, which stand at many times that figure. Nor is there a rational basis for granting costs in a lesser sum.

[21]Should our ‘in principle’ position be adjusted to take account of the Claimant’s means? We think that it should. Rule 84 specifically refers to ability to pay and it seems to us that the starting-point must be that Parliament regards that as a material consideration. The trend of the case-law is to the same effect (see eg Jilley).

[22]If the Claimant’s means are to be taken into account, what is the proper adjustment? We find on the evidence presented that the Claimant is without an earning capacity at present. His medical state may improve in the future, but we are not in a position to make an assessment as to how good his prospects of returning to gainful employment are, let alone how long it may take him to do so. We are driven to treat him as income-poor for the time being. As to capital, there seems to be equity of between £200,000 and £300,000 in his property (the family home). On any view, that represents many times our ‘in principle’ award, but the difficulty is that there is an obvious doubt as to whether, given his lack of income, he would be in a position to remortgage, even to the extent of raising an extra £20,000. On balance, we conclude that the Claimant’s (only significant) capital asset cannot safely be treated as liquid.

[23]For all of these reasons, on the rough-and-ready assessment which it has been necessary for us to make, we have concluded that the Claimant would not have the means to meet an award of £20,000 or any appreciable part of that sum, and that in the circumstances the justice of the case is met by leaving the Respondent with the findings which we have made in their favour, but making no award of costs.

[24]Finally, we wish to make three observations. First, we have arrived at our decision with some difficulty. We can well see that another Tribunal in like circumstances might have granted the Respondent’s application in full. As we have explained, there were powerful grounds for bringing it. Secondly, we are troubled by the absence of any contrition on the Claimant’s part. After a narrow escape from a second costs order in this case we hope that his disastrous experience in this litigation, and our findings about the way in which he has conducted it, will cause him to reflect anew on his behaviour and its dangers, both for him and for those for whom he cares. Any further irresponsible resort to litigation by him might have much more painful consequences. Thirdly, we also hope that the Claimant will not continue to disregard the medical advice consistently offered that prolongation of hostilities between him and the Respondent is contrary to his interests and will serve only to prejudice his prospects of recovery.