Mr A Malik v Network Rail Infrastructure Ltd: 2200417/2020

EMPLOYMENT TRIBUNALS

Case No 2200417/2020

Between

Mr A MalikClaimant

Network Rail Infrastructure LtdRespondent

Before

Employment Judge Mr M Emery

In person for claimant

Ms K Balner (instructed by Counsel) for respondent

Date 27 January 2022

JUDGMENT

[1]All claims of direct race discrimination and discrimination arising from disability fail and are dismissed.

[2]The claim of disability-related harassment succeeds and it is just and equitable to extend time on this claim.

REASONS

[1]The claimant is an employee of the respondent in the position of Customer Services Assistant. He is of Pakistani origin. He has medical conditions of xxx which he argues are all disabilities under the Equality Act. He argues that he has been continuously discriminated against on grounds of his disability and on grounds of his race since 2014, when he was subjected to a disciplinary process, to the date of his claim. The respondent denies all allegations.

[2]Jurisdiction – Timea. Were the claims presented within a period of three months starting with the date to which the complaint relates?

b. Did the alleged conduct extend over a period so that it should be treated as being done at the end of that period?

c. If no to (a) and (b) (above) the claim is out of time. Is it then just and equitable for the tribunal to extend time?

[3]Direct Race Discriminationa. Claimant is of Pakistani origin.

b. Did the Respondent subject the Claimant to the following treatment falling within s.39(2)(d) of the EqA? i. On 7 January 2014 Adrian Gogay took a fraudulent witness statement from a cleaner regarding an allegation that the Claimant left papers lying around the station. The cleaner could not read or write English very well and therefore the Claimant contends that the statement was fraudulent. ii. The Claimant was unfairly suspended on 7th January 2014. iii. Jacki Priest completed an unfair investigation from 6th January 2014 to 27th April 2014. iv. The Claimant was dismissed by Lydia Fenny on 25th June 2014 (based on Jacki Priest’s investigation) before the dismissal was revoked on November 2015. v. Between 3rd December 2015 and 26th December 2016, the Claimant requested to develop and progress in his 1-2-1 meeting. The Claimant was told in the 1-2-1 meetings that he would have the chance to develop and progress. However, the Claimant was not supported and was not considered for development and progression by Jacki Priest into the station manager role. (The Claimant compares himself to Rhys Xanthis who was fully supported by the management team and was allowed to attend the Westwood Training Centre.) vi. On 30th October 2017, the Claimant was told by John Ward that because of the Claimant’s illness and absences Darren Williams was not willing to allow the Claimant to develop into the Station Manager role because he is not reliable. Therefore the Respondent was unable to “invest” in him by allowing him to attend training course and progress and develop. The Claimant believes that this decision was instigated by Jacki Priest who had an unofficial role of deciding which employees should be developed and progressed. The Claimant alleges that he made requests to progress on the following dates: 31st January 2018; 13th April 2018; 26th June 2018; 18th October 2018; 18th July 2019; 23rd August 2019; 24th August 2019. vii. On or about 4th March 2018 the Claimant was told that he was only allowed one day’s bereavement leave following the death of his aunt, when previously he was told by Jacki Priest and John Ward that he would be entitled to 5 days bereavement leave. (The Claimant compares himself to Darren May and John Frappier who were both permitted to have 5 days bereavement leave). viii. On, or about, 4th March 2018, the Claimant sent Darren Williams an email in which the Claimant made a complaint about not getting bereavement leave. Darren Williams ignored the email and failed to acknowledge it. ix. On, or about, 12th March 2018, on the Claimant asked Andreea Aursulesi for feedback on him but she refused to give it to him saying that she was unable to because they had only worked together for one or two shifts. x. On, or about, 30th March 2018, Andreea Aursulesi shouted at the Claimant to “stop behaving like a child”, in front other members of staff during a briefing, when the Claimant was being bullied by agency staff who accused him of stealing a radio. xi. On or about 30 March 2018 Andreea Aursulesi sent an email to Wesley Morgan, in which she mentioned that the Claimant and an agency staff member accused each other of theft. This amounted to a false allegation of theft by Andreea Aursulesi against the Claimant. xii. On, or about, 31st March 2018, Andreea Aursulesi told the Claimant to push a customer in a wheelchair. xiii. In an email dated on, or about, 31st March 2018, to John Ward, Andreea Aursulesi stated about the Claimant that “I believe he can get quite angry sometimes and get disrespectful to anyone around him, including management”. The Claimant raised his concerns to John Ward about this email on or about, 1st April 2018 but he was ignored. xiv. On 1st May 2018 Robert Medhurst, Station Shift Manager, sent an email to the Claimant in which Mr Medhurst called the Claimant the “cancer of the station” (The Claimant compares himself to Terry McCarthy, Alan Crosby, Christian Bish, and Simon Cheeseman.) xv. Robert Medhurst failed to take any action when the Claimant complained that he was bullied by a white female contractor (AB) on 15th February 2019 whilst in reception at Victoria Station. (The Claimant compares himself to Bethany Simpson, a white female Customer Service Assistant, who complained about a male contractor who was subsequently banned from all Network Rail managed stations and had his picture printed and left in reception with instructions not to sign him in.) xvi. Jacki Priest referred the Claimant to Occupational Health (‘OH’) without his consent. Jacki Priest’s purpose in making the referral was to try and get the Claimant redeployed. xvii. On 29th May 2019, after the Claimant had been referred to OH by Jacki Priest, she spoke with the OH doctor (Dr Suzanne Lucey) before his appointment without the Claimant’s consent. xviii. On 12th June 2019, the Claimant called an ambulance for himself as he was unwell. Jacki Priest did not show a duty of care towards the Claimant in that she left him alone to “drag” himself to the hospital. (The Claimant compares himself to Micke'ee Watson who had chest pains at work and was accompanied in an ambulance to hospital by another member of staff.) xix. On or about 12th June 2019, the Claimant was left alone working on reception, without any support or break, between 7am to 12pm, by Darren May. xx. On, or about, 11th May 2020, the Claimant received Darren May’s witness statement, which he produced as part of the grievance process, in which Mr May suggested that the Claimant’s (and others who the claimant believes were other staff from a BAME background) sickness was not genuine and he (and the others) should be “sacked” by the Respondent. xxi. xxi. On 26th September 2019, when the Claimant made a formal complaint to Darren Williams, Station Manager, he had to wait until 11th December 2019 before the investigation into the complaint commenced. xxii. xxii. Darren Williams emailed the Claimant on 12th February 2020 and informed him that he was not allowed to contact anyone from the station.

c. If the Respondent has subjected the Claimant to this treatment as alleged, has it treated him less favourably than it treated or would have treated an actual or hypothetical comparator who does not share the Claimant's race?

d. If so has the Claimant proved primary facts from which the tribunal could properly and fairly conclude that the difference in treatment was because of the Claimant’s race?

e. If so, what are the Respondent’s explanations and do they provide a non-discriminatory reason for any proven treatment?

[4]Disability Lower back conditiona. The Respondent accepts that the Claimant was a disabled person as defined in section 6 of the EqA by way of a back condition from June 2011, and that it had knowledge from this date. Mental health impairment a. The Respondent accepts that the Claimant was a disabled person as defined in section 6 of the EqA in relation to a mental impairment (an unidentified mental health condition) from 20 June 2019.

b. Did this condition amount to a disability between 6 January 2014 to 19 June 2019? The respondent accepts the claimant had a long-term mental health impairment, but does not accept there was a substantial adverse effect on him during this period. Diabetes a. Diabetes: The claimant says that the respondent had knowledge of this condition from January 2018. The respondent accepts that the claimant was diagnosed with diabetes in January 2018, that it has knowledge from June 2018. R accepts that the OH report dated 27 June 2019 states that this amounts to a disability. b. The Respondent does not accept that the Claimant's type II diabetes constitutes, or constituted at any relevant time, a disability for the purposes of the EqA.

c. Did this condition have a substantial and long term adverse effect on his ability to carry out normal day to day activities from January 2018?

[5]Discrimination Arising from Disability (s.15 EqA)a. Did the Respondent subject the Claimant to the following treatment? i. Adrian Gogay took a fraudulent witness statement from a cleaner regarding an allegation that the Claimant left papers lying around the station. The cleaner could not read or write English very well and therefore the Claimant contends that the statement was fraudulent. ii. The Claimant was unfairly suspended on 7th January 2014. iii. Jacki Priest completed an unfair investigation from 6th January 2014 to 27th April 2014. iv. The Claimant’s was dismissed by Lydia Fenny on 25th June 2014 (based on Jacki Priest’s investigation) before the dismissal was revoked on November 2015. v. On 30th October 2017 the Claimant was told by John Ward that because of the Claimant’s illness and absences DW was not willing to allow the Claimant to develop into the Station Manager role because he is not reliable. Therefore the Respondent was unable to “invest” in him by allowing him to attend training course and progress and develop. The Claimant believes that this decision was instigated by Jacki Priest who had an unofficial role of deciding which employees should be developed and progressed. The Claimant alleges that he made requests to progress on the following dates: 31st January 2018; 13th April 2018; 26th June 2018; 18th October 2018; 18th July 2019; 23rd August 2019; 24th August 2019. vi. On, or about, 4th March 2018, the Claimant sent Darren Williams an email in which the Claimant made a complaint about not getting bereavement leave. Darren Williams ignored the email and failed to acknowledge it. vii. On, or about, 12th March 2018, the Claimant asked Andreea Aursulesi for feedback on him but she refused to give it to him saying that she was unable to because they had only worked together for one or two shifts. viii. On, or about, 30th March 2018, Andreea Aursulesi shouted at the Claimant to “stop behaving like a child”, in front other members of staff during a briefing, when the Claimant was being bullied by agency staff who accused him of stealing a radio. ix. On 4th February 2020 Andreea Aursulesi sent an email to Wesley Morgan, in which she mentioned that the Claimant and the agency staff member accused each other of theft. This amounted to a false allegation of theft by Andreea Aursulesi against the Claimant. x. On, or about, 31st March 2018, Andreea Aursulesi told the Claimant to push a customer in a wheelchair. xi. In an email dated on, or about, 31st March 2018, to John Ward, Andreea Aursulesi stated about the Claimant that “I believe he can get quite angry sometimes and get disrespectful to anyone around him, including management”. The Claimant raised his concerns to John Ward about this email on, or about, 1st April 2018 but he was ignored. xii. Jacki Priest referred the Claimant to Occupational Health (‘OH’) without his consent. Jacki Priest’s purpose in making the referral was to try and get the Claimant redeployed. xiii. On 29th May 2019, after the Claimant had been referred to OH by Jacki Priest, she spoke with the OH doctor (Dr Suzanne Lucey) before his appointment without the Claimant’s consent. xiv. On 12th June 2019 the Claimant called an ambulance for himself as he was unwell. Jacki Priest did not show a duty of care towards the Claimant in that she left him alone to drag himself to the hospital (in comparison to how MW was treated). xv. When the Claimant made a formal complaint to Darren Williams, Station Manager, 26th September 2019 he had to wait until 11th December 2019 before the investigation into the complaint commenced. xvi. Darren Williams emailed the Claimant on 12th February 2020 and informed him that he was not allowed to contact anyone to contact anyone from the station.

b. Was the treatment unfavourable?

c. Was the treatment because of something arising in consequence of the Claimant’s disability? The Claimant relies on: i. his periods of absence; and ii. limitations on his ability to undertake physical work.

d. Was the treatment, if proven, a proportionate means of achieving a legitimate aim?

[6]Disability Harassmenta. Did the Respondent engage in the following unwanted conduct? i. On 1st May 2018 Robert Medhurst disclosed the Claimant’s sensitive medical information, relating to his back pain, in an open email, suggesting that the Claimant’s back pain was not genuine. Robert Medhurst was trying to create a group of people that were targeting the Claimant.

b. If and insofar the conduct is made out, did it relate to the Claimant’s protected characteristic of disability?

c. Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

d. In considering whether the conduct has that effect, the tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect.

The Law

[7]Equality Act 2010 s.13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. s.15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if—

a. A treats B unfavourably because of something arising in consequence of B's disability, and

b. A cannot show that the treatment is a proportionate means of achieving a legitimate aim. s.23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.

(2) The circumstances relating to a case include a person's abilities if— a. on a comparison for the purposes of section 13, the protected characteristic is disability; s.26 Harassment (1) A person (A) harasses another (B) if— a. A engages in unwanted conduct related to a relevant protected characteristic, and b. the conduct has the purpose or effect of— i.violating B's dignity, or ii.creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (2) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— a. the perception of B; b. the other circumstances of the case;

c. whether it is reasonable for the conduct to have that effect. s.136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. Relevant case law

[8]Direct Discriminationa. Has the claimant been treated less favourably than a hypothetical comparator would have been treated on the ground of her disability? This can be considered in two parts:

(a) less favourable treatment; and

(b) on grounds of the age. Importantly, it is not possible to infer discrimination merely because the employer has acted unreasonably (Glasgow City Council v Zafar

[1998] IRLR 36

)

b. The requirement is that all relevant circumstances between complainant and comparator are the same, or not materially different; the tribunal must ensure that it only compares 'like with like'; save that the comparator is not disabled (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2013] ICR 337

)

c. The tribunal has to determine the “reason why” the claimant was treated as she was (Nagarajan v London Regional Transport

[1999] IRLR 572

) and it is not necessary in every case for the tribunal to go through the two stage procedure; if the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial (Igen v Wong

[2005] EWCA Civ 142

). “Debating the correct characterisation of the comparator is less helpful than focusing on the fundamental question of the reason why the claimant was treated in the manner complained of.” (Chondol v Liverpool CC

UKEAT/0298/08

)

d. Law Society v Bhal

[2003] IRLR 640

- the fundamental question is why the discriminator acted as he did. Was the claimant (in this case) treated the way she was because of her disability? It is enough that a protected characteristic had a 'significant influence' on the outcome - discrimination will be made out. The crucial question is: 'why the complainant received less favourable treatment … Was it on grounds of [the protected characteristic]? Or was it for some other reason..?”

e. Nagarajan v London Regional Transport

[1999] IRLR 572

, HL. “What, out of the whole complex of facts … is the effective and predominant cause” or the “real and efficient cause” of the act complained of?” (O'Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School

[1996] IRLR 372

[1997] ICR 33

)

f. London Borough of Islington v Ladele:

[2009] EWCA Civ 1357

provides the following guidance: 1. In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport

[1999] IRLR 572

, 575—“this is the crucial question”. In most cases this will call for some consideration of the mental processes (conscious or subconscious) of the alleged discriminator 2. If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p 576) as explained by Peter Gibson LJ in Igen v Wong

[2005] EWCA Civ 142

[2005] ICR 931

[2005] IRLR 258

paragraph 37 3. As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test, which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong 4. The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of protected characteristic of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. 5. It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC

[2007] EWCA Civ 32

[2007] IRLR 259

paragraphs 28–39. 6. It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are. 7. As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan

[2008] IRLR 243

[2008] 1 All ER 869

… paragraphs 36–37) …''

g. Chondol v Liverpool CC

UKEAT/0298/08

[2009] All ER (D) 155

(Feb), EAT: A social worker was dismissed on charges which included inappropriate promotion of his Christian beliefs with service users. His claim for direct religious discrimination failed as the tribunal found that 'it was not on the ground of his religion that he received this treatment, but rather on the ground that he was improperly foisting it on service users'. The EAT accepted that the distinction between beliefs and the inappropriate promotion of those beliefs was a valid one, and it was correct to focus on the reason for the claimant's treatment. Citing Ladele, the EAT again confirmed that 'debating the correct characterisation of the comparator is less helpful than focusing on the fundamental question of the reason why the claimant was treated in the manner complained of'.

h. Chondol v Liverpool CC

UKEAT/0298/08

[2009] All ER (D) 155

[9]Discrimination arising from disability Unfavourable treatment: 1. T-System Ltd v Lewis

UKEAT/0042/15

: unfavourable treatment is what is done or said (or omitted to be done or said) “which places the disabled person at a disadvantage”, and which requires a measurement of 'an objective sense of that which is adverse as compared to that which is beneficial.' 2. Williams v Trustees of Swansea University Pension and Assurance Scheme

[2018] UKSC 65

, An award of a pension on early retirement at half of pensionable salary, when the part-time working had been caused by disability, was not unfavourable treatment: the treatment in issue was the award of a pension, and this was not a disadvantage to the claimant. Cf Chief Constable of Gwent Police v Parsons and Roberts

UKEAT/0143/18

– the capping of compensation lump sums for disabled officers leaving the force under a voluntary exit scheme: “capping” a payment is different from “awarding” a pension. Arising in consequence of disability: 3. There are two steps, “both of which are causal, though the causative relationship is differently expressed in respect of each of them”: i.did A treat B unfavourably because of an (identified) something? and ii.did that something arise in consequence of B's disability? “The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” (Basildon & Thurrock NHS Foundation Trust v Weerasinghe

[2016] ICR 305

). 4. If the employer knows (or has constructive knowledge) of disability, it need not to be aware when choosing to subject B to the unfavourable treatment in question that the relevant “something” arose in consequence of B's disability (City of York Council v Grosset

[2018] EWCA Civ 1105

). In this case a lack of judgment by a teacher was contributed to by stress, which was significantly contributed to by cystic fibrosis; the Court of Appeal found that it did not matter that the school was unaware that the lack of judgment had arisen in consequence of his disability when s.15(10(a) is applied. If the employer knows of the disability, it would “be wise to look into the matter more carefully before taking the unfavourable treatment”. 5. There must be some connection between the “something” and the claimant’s disability; the test is an objective test, and the connection could arise from a series of links (iForce Ltd v Wood

UKEAT/0167/18

) – but there must be some connection between the “something” and the claimant's disability. 6. The test was refined in Pnaiser v NHS England

[2016] IRLR 170

, EAT: i.A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A, and there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. ii.Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is irrelevant. iii.The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. - it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. iv.“It does not matter precisely in which order these questions are addressed. Depending on the facts, a tribunal might ask why A treated the claimant in the unfavourable way alleged in order to answer the question whether it was because of “something arising in consequence of the claimant's disability”. Alternatively, it might ask whether the disability has a particular consequence for a claimant that leads to “something” that caused the unfavourable treatment.” 7. The fact that an employer has a mistaken belief in misconduct as a motivation for a particular act is not relevant in considering s.15 discrimination, in a case where the employer had a genuine but mistaken belief the claimant had been working elsewhere during sickness absence: it is sufficient for disability to be 'a significant influence … or a cause which is not the main or sole cause, but is nonetheless an effective cause of the unfavourable treatment'.' (Hall v Chief Constable of West Yorkshire Police

[2015] IRLR 893

, EAT). 8. Justification: R (Elias) v Secretary of State for Defence

[2006] 1 WLR 3213

: three elements of the test: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”. When assessing proportionality, an ET’s judgment must be based on a fair and detailed analysis of the working practices and business considerations involved, having particular regard to the business needs of the employer. Hensman v Ministry of Defence

UKEAT/0067/14/DM

, [2014]). The test of justification is an objective one to be applied by the tribunal, while keeping the respondent's 'workplace practices and business considerations' firmly at the centre of its reasoning. The test under s 15(1)(b) EqA is an objective one according to which the tribunal must make its own assessment” (City of York Council v Grosset

UKEAT/0015/16

). Under s 15(1)(b) the question is whether the unfavourable treatment is a proportionate means of achieving a different objective, i.e. the relevant legitimate aim. Ali v Torrosian (t/a Bedford Hill Family Practice) [2018]

UKEAT/0029/18

: this objective balancing exercise requires that to be proportionate the conduct in question has to be both an appropriate and reasonably necessary means of achieving the legitimate aim; and for that purpose it will be relevant for the Tribunal to consider whether or not any lesser measure might have served that aim. Although there may be evidential difficulties for a Respondent in discharging the burden of showing objective justification when it has failed to expressly carry out this exercise at the time, the ultimate question for the Tribunal is whether it has done so.

[10]Harassmenta. Harassment involves unwanted conduct which is related to a relevant characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive atmosphere for the complainant or violating the complainant's dignity.

b. Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

: Determining whether alleged harassment constitutes discrimination involves an objective assessment by the tribunal of all the facts; the claimant's subjective perception of the conduct in question must also be considered. The tribunal is therefore required to determine both the actual effect on the particular individual complainant and the question whether that was reasonable in the circumstances of the case.

c. Pemberton v Inwood

[2018] EWCA Civ 564

: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).'' This means that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for them, then it should not be found to have done so.

d. Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

: 'harassment' is defined in a way that focuses on three elements:

(a) unwanted conduct;

(b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for him/her;

(c) on the prohibited grounds. It would normally be a 'healthy discipline' for tribunals to address each factor separately and ensure that factual findings are made on each of them. It must be reasonable that the conduct had the proscribed effect. While there is a subjective element ('… having regard to … the perception of that other person …') there is no harassment if there is an unreasonable proneness to take offence. ''We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. We accept that the facts here may have been close to the borderline, as the Tribunal indeed indicated by the size of its award.'

e. 'Conduct': 'Prospects for People with Learning Difficulties v Harris

UKEAT/0612/11

: suspension or other acts by an employer which would not normally constitute an act of harassment, can amount to acts of harassment; in this case the lack of forethought on the part of the employer and the peremptory nature of the suspension, with scant justification and absent prior consultation with the claimant, justified the tribunal's finding of unlawful harassment in this case.

f. Purpose or effect: Harassment will be unlawful if the conduct had either the purpose or the effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Where the claim simply relies on the 'effect' of the conduct in question, the perpetrator's motive or intention—which could be entirely innocent – is irrelevant. The test in this regard has, however, both subjective and objective elements to it. The assessment requires the Tribunal to consider the effect of the conduct from the complainant's point of view; the subjective element. It must also ask, however, whether it was reasonable of the complainant to consider that conduct had that requisite effect; the objective element. The fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not necessarily mean that harassment will be shown to exist.

g. Related to the prohibited grounds: The conduct must be ‘related to' a relevant protected characteristic, including conduct associated with that characteristic. The tribunal has to apply an objective test in determining whether the conduct complained of was 'related to' the protected characteristic in issue. Hartley v Foreign and Commonwealth Office

UKEAT/0033/15

: Where adverse comments were made by managers amount an employee, the fact that the intent of the managers was not to “aim” at her condition was irrelevant – the tribunal must assess “if the overall effect was unwanted conduct related to her disability.' Also Brumfitt v Ministry of Defence

[2005] IRLR 4

, EAT (a decision under the old wording, on grounds of, in the SDA 1975) the need for comparative disadvantage defeated a claim which was made by a woman who complained of offensive language delivered to her as a member of a mixed-sex audience. There was no doubt that she had been exposed to language that she found offensive, but she had not been exposed to this because she was a woman.

h. Prohibited grounds: it may be necessary to consider the employer’s mental processes to determine whether the conduct was on the prohibited grounds. Nazir and Aslam v Asim and Nottinghamshire Black Partnership [2010] EqLR 142: when considering whether facts have been proved from which a tribunal could conclude that harassment was on a prohibited ground, it is relevant to take into account the context of the conduct which is alleged to have been perpetrated on that ground. That context may in fact point strongly towards or against a conclusion that it was related to any protected characteristic and should not be left for consideration only as part of the explanation, at the second stage, once the burden of proof has passed.

i. Land Registry v Grant

[2011] EWCA Civ 769

: the tribunal must be careful not to cheapen the significance of the statutory wording; is must consider carefully whether the matters above can violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her.

j. No justification for harassment is possible and no comparator is needed; that said, conduct shall be regarded as having the required effect only if, having regard to all the circumstances, including in particular the perception of the victim, it should reasonably be considered as having that effect. In other words, the fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not necessarily mean that harassment will be shown to exist.

k. Pemberton v Inwood

[2018] EWCA Civ 564

[2018] IRLR 542

'’In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).''

l. Whitley v Thompson

EAT/1167/97

: (i) A characteristic of harassment is that it undermines the victim's dignity at work and constitutes a detriment on the grounds of sex; lack of intent is not a defence. (ii) The words or conduct must be unwelcome to the victim and it is for her to decide what is acceptable or offensive. The question is not what (objectively) the tribunal would or would not find offensive. (iii) The tribunal should not carve up a course of conduct into individual incidents and measure the detriment from each; once unwelcome sexual interest has been displayed, the victim may be bothered by further incidents which, in a different context, would appear unobjectionable. (iv) In deciding whether something is unwelcome, there can be difficult factual questions for a tribunal; some conduct (e.g. sexual touching) may be so clearly unwanted that the woman does not have to object to it expressly in advance. At the other end of the scale is conduct which normally a person would be unduly sensitive to object to, but because it is for the individual to set the parameters, the question becomes whether that individual has made it clear that she finds that conduct unacceptable. Provided that that objection would be clear to a reasonable person, any repetition will generally constitute harassment.''

m. Timothy James Consulting Ltd v Wilton

[2015] IRLR 368

, EAT - held that a constructive dismissal could not constitute an act of harassment as a matter of law. Cf: Urso v Department for Work and Pensions

[2017] IRLR 304

, EAT, - held that a direct dismissal was distinguishable from a constructive dismissal, which could be an affront to the employee's dignity and, as a matter of statutory interpretation, could qualify as something done 'in relation to employment.

n. Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, which concerned the approach to be taken by employment tribunals, in determining whether alleged harassment constituted discrimination on grounds of sex. In Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered.

o. UNITE the Union v Nailard

[2018] EWCA Civ 1203

[2018] IRLR 730

. The Court of Appeal said that the ET had gone too far in arguing that a failure to address a sexual harassment complaint, made against elected officials of the union, could itself amount to harassment related to sex 'because of the background of harassment related to sex'. While the union could be vicariously liable for acts of discrimination by its employees, there would need to be a finding that the employees in question were themselves guilty of discrimination.

p. 'Hartley v Foreign and Commonwealth Office

UKEAT/0033/15

(27 May 2016, unreported). The claimant had Asperger's syndrome which was accepted as a disability. When dismissed for underperformance, she brought proceedings for disability discrimination, complaining (amongst other things) of harassment based on comments by two managers in discussions about her work. The first manager had drawn a distinction between commenting on her tenacity (related to her condition) and rudeness/abruptness (which he attributed to her character not her disability). The second manager had drawn a distinction between commenting on her communication problem and her intelligence/ability to understand a spreadsheet. The employment tribunal held these comments did not amount to harassment because that had not been the intent of the managers, who were not, in effect, aiming them at her condition. The EAT held that this was the wrong approach; the matter had to be reconsidered to see if the overall effect was unwanted conduct related to her disability.

q. Tees Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT, a case in which a woman of British Asian origin complained that a remark by a psychiatrist that a young man in his clinic 'should join ISIS, that'll sort him out' was not found to be related to race. The ET had accepted it was racial harassment because of a 'perception that ISIS in the minds of a significant proportion of the general public is that it is an international organisation connected with Asian people, in particular in such areas as Pakistan, Afghanistan and Iran'. However, setting aside this finding the EAT held that an ET needs to 'articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged'. Here, there was no evidence to justify the finding that ISIS was related to Asian or South Asian people and it was not a matter of which judicial notice could properly be taken. Witnesses and Tribunal procedure

[11]For the claimant we heard from the following witnesses:a. The claimant

b. Mr M Adam a former CSA at Victoria, now a Signaller

c. Mr M Talukdar, CSA

[12]For the respondent we heard from the following witnesses:a. Mr John Ward Shift Station Manager (SSM)

b. Ms Jackie Priest, SSM

c. Mr Robert Medhurst, SSM

d. Mr Darren Williams, Station Manager (SM) since 2017

[13]Corrections were made to some of the statements in evidence in chief. The Tribunal spent most of the first day of the hearing reading the witness statements and the documents referred to in the statements. Witnesses were crossexamined, and the Tribunal asked questions of the witnesses.

[14]At the outset of the hearing the claimant raised an issue about the number of respondent witnesses in the Tribunal room. He raised concerns about feeling intimidated, given these are witnesses against whom he has raised allegations of bullying and discrimination. He has a diagnosis of depression and other medical conditions, and he is representing himself. He is concerned about the fairness of the Hearing.

[15]The Tribunal accepted the claimant’s arguments. With the legal team there were 7-8 people on the respondent’s side in the room and this we accepted that this may present difficulties for any party who is self-representing. We accepted that this may impact on the claimant’s health, and therefore that the fairness of the proceedings was an issue. On the other side, we also accepted Ms Balner’s submission on the long-standing practice in E&W jurisdiction that witnesses are allowed to observe all of the case, that this is an issue of fairness.

[16]The Tribunal were also concerned about the number of people in the room for the following reason – namely the legal requirement to adhere to social distancing, which could not be met with the numbers (including respondent’s legal team) in the Tribunal. The lack of appropriate ventilation at the Tribunal (Victory House) was an additional concern.

[17]The following process was adopted with the consent of all parties. The Respondent’s witnesses sat in a separate hearing room when they were not giving evidence. We utilised the large video screen in the Tribunal hearing from and used the cvp platform to relay the proceedings to the witnesses, who used a laptop to log in and watch proceedings. Checks were made that witnesses could see and hear throughout the case, and there were few difficulties. When giving evidence, the witness did so from the hearing room.

[18]A witness for the respondent, Ms Andrea Aursulesi, an SSM, was due to give birth “in days” and was unable to attend, medical records are available if required. We accepted this explanation without the need for medical records. Ms Balner accepted that we could give whatever weight we chose to Ms Aursulesi’s evidence, given she was not available to be examined on it.

[19]Both parties provided bundles of over 1000 pages. Many of the documents are duplicates. We read documents we were referred to, and refer to the respondent’s page numbers in the judgment where there are duplicates in both bundles. The claimant’s documents are referred to below as ‘C’ followed by the number.

[20]This judgment does not recite all of the evidence we heard, instead it confines its findings to the evidence relevant to the issues in this case. This judgment incorporates quotes from the Judge’s notes of evidence; these are not verbatim quotes but are instead a detailed summary of the answers given to questions

The relevant facts

[21]The claimant commenced employment as a Station Officer (later changed to Customer Service Assistant – CSA) in June 2007.

[22]A significant issue during the case was the fact that the claimant was not given the opportunity to act up in the role of SSM. In June 2010 two of the claimant’s SSM colleagues, Jackie Priest and John Ward, were selected to undertake a “pilot SSM development role”. The email announcing this was sent to all SSMs saying “please do not get disillusioned if you had not been selected this time round.. there will be future opportunities…” (208).

[23]Mr Ward’s evidence, which we accepted, is that after doing well in the pilot he acted up as an SSM on regular occasions for several years from 2004 to 2016, when he achieved a formal promotion from CSA to SSM. He applied for the SSM role on several occasions prior to this, without success.

[24]In his evidence the claimant accepted that there was a significant difference between the CSA and SSM roles; he also said that the SSM role is no more stressful than the CSA role. He accepted that the SSM role involved the day to day management of the station and had line management responsibilities; that the SSM would deal with issues that arose, including to deal and take responsibility for any emergency which occurred during the shift.

[25]On 29 October 2013 an incident occurred which in January 2014 became part of a disciplinary process against the claimant. An email was sent to Mr Gogay, purportedly from the claimant’s work email account, complaining about the way the claimant was treated by Mr Gogay. After it had been sent, the claimant complained to Mr Gogay that his email account had been hacked; he said that pornographic material had been sent from his work email to senior managers. He said that he had not sent the email to Mr Gogay.

[26]Mr Gogay spoke about this to HR and then emailed the respondent’s IT Security, saying that the claimant had alleged that numerous emails had been sent from his account to senior managers. IT security for the Respondent checked and on 8 January 2018 reported that no emails containing inappropriate information had been sent from his account as alleged by the claimant; IT security confirmed that two emails had been sent from his account on 29 October 2013, including the email to Mr Gogay (270-272).

[27]The claimant’s performance in November 2013 for the year 2013 was “good” (209-216).

[28]An event occurred on 5 January 2014 nightshift which led to a disciplinary process, and to the claimant’s dismissal. A letter was left on the Station Manager’s desk on a nightshift, when his office is usually locked. This letter had a named sender, CSA Robert Medhurst, and it made complaints against staff including some not undertaking security checks. A second letter was found in the SSM kitchen which was anonymous and made allegations against Mr Medhurst (247-8).

[29]One very significant concern for the claimant was a statement taken by Mr Gogay from a Cleaner, RD, the next day. The claimant contends RD could not speak or understand English well. He contends that RD was fed the information within her statement, that RD’s manager was present and RD was intimidated.

[30]The claimant’s evidence at his subsequent appeal against dismissal was that RD indicated the wrong room, he was in fact coming out of the SSM office (C329). He says that it was “demonstrated” at appeal “that the statement was fraudulent and falsified, the 15 September meeting notes prove that RD’s statement was falsified.” He states that he had not been seen coming from the SM office, that he and Mr Ward were in the SSM office together.

[31]The Tribunal concluded that there was no evidence that the statement was deliberately falsified or that pressure was put on RD. RD gave clear answers to all questions, the time she collected keys from the SSM, the rooms she cleaned before she returned the keys to the SSM’s desk (as the SSM was not present). She states she say the claimant and Mr Ward enter the offices at 3.30, that the claimant went to the SSM kitchen, that she saw him exit the SM’s office. She describes him carrying two pieces of paper. The statement is signed, and it confirms that the statement was read to her and that she understood its content (216a-b). We noted C308, that her manager stated RD’s understanding of English is good.

[32]Mr Gogay, the SSM on that shift wrote a statement saying he had not seen this letter on the SM’s desk before 2300, and the SMs door was always locked; also there had been no letter attached to the SSM kitchen door before around 2-2.30 am.

[33]The claimant was interviewed on 7 January 2014 by Mr Gogay and he denied writing the letters and he denied entering the SSM kitchen or SM office. He was told that ”evidence had come to light” which suggested he was responsible, and he was suspended from work (259-261). He subsequently wrote an email to his union rep suggesting that RD may have lied because he had previously alleged that RB may have stolen his work and personal phone (220a).

[34]Ms Priest gave evidence on the reason why the claimant was suspended and she referred to the interview she gave at appeal stage (293). She said that this was “discussed extensively” with HR. One reason was that a concern that the claimant may interfere with the process. An “… overriding decision to suspend was I looking out for the claimant’s welfare, as there was letters containing accusations about other members of staff, and feelings were running high and there was anger. … Staff were very angry … The overriding decision to suspend was that it was in the claimant’s best interests.” She said that the reason why the claimant was under suspicion was that it was the claimant, Mr Ward and Mr Gogay on shift, that the cleaner had seen the claimant go into the SM office “…and this is why he was under suspicion” .

[35]Several other staff were interviewed, including Mr Medhurst who denied sending these letters (252-4). The claimant was informed by letter on 9 January 2014 that he was being subject to an investigation on the following allegations: entering SM’s office without permission; dishonesty/providing false information at an interview on 7 January; impersonating a manager/fraudulently creating and distributing literature in manager’s name without consent or permission (217-8).

[36]The investigation was undertaken by Ms Priest. The issues were widened to include an allegation that in October 2013 he had dishonestly informed a manager that his email account had been hacked; that in January 2014 he had created and distributed the letter – “of a divisive and threatening nature, with malicious intent”; that this was fraudulently created and distributed in a manager’s name without their consent/authorisation; making malicious threats against the respondent (221).

[37]The claimant’s evidence on the 29 October 2013 email was “I meant to send it to another Arian, my Union rep. I accidently sent it to the wrong Adrian, I thought someone had accessed my email .. I thought it was hacked…”. He said he could not recall mentioning other emails to Mr Gogay being sent from his account by others.

[38]CCTV footage was examined, and this showed that the claimant sitting at a work computer the time the October 2013 email was sent (223). A letter in similar terms to that left in the SM’s office was found on the claimant’s work computer, which included similar spelling mistakes (e.g. ‘does’ spelt as ‘dose’ – a check of the Station’s computer systems found that the claimant was the only employee who misspelt this word in work-related documents, on 25 occasions). There was RDs evidence of the claimant entering the SM’s office. The report recommended a disciplinary hearing on charges of gross misconduct.

[39]The claimant was dismissed at a hearing held on 25 June 2014 – the following allegations were substantiated: dishonesty/providing false information at an investigation meeting on 7 January 2014; dishonestly lack of integrity and conduct calculated to destroy trust and confidence’; dishonesty/making false allegations of IT hacking (233-4).

[40]The claimant appealed his dismissal – he was interviewed and a TU rep spoke on his behalf. Staff were re-interviewed (for example 255-6, 290-4, 296-7) and other staff were interviewed for the first time, including several CSAs. One said that the comments in the letter were very similar to complaints that the claimant had made against him (including one about wearing brown shoes); some said they believed the claimant had written the letters, others thought not. Staff were asked additional follow-up questions by email. Mr Gogay was interviewed twice, he went through the circumstances of his interview with RD, including that RD had demonstrated which doors she had seen the claimant exit. The claimant’s union rep spoke on his behalf at the appeal hearing.

[41]The appeal succeeded and on 1 October 2015 the claimant was informed that there had been an incomplete investigation and decisions based on coincidence, not proof, that the CCTV use was unauthorised and unverified as to time and place, there were discrepancies in the process. The claimant was reinstated and awarded back-pay for the whole period of his dismissal (333). The claimant was offered confidential counselling.

[42]The claimant’s case is that his dismissal was an act of discrimination based on race and disability. Mr Ward’s evidence was that white staff had been sacked for misconduct in the previous few years, one had failed a drugs/alcohol test, another had failed to carry out a security search. At least one white staff member had been dismissed for not contacting the respondent while off on long-term absence.

[43]Shortly following his return to work the claimant expressed eagerness to undergo training (IOSH, roof inspector, and SIO) and he expressed interest “in learning the SSM role” (338b).

[44]The claimant’s appraisal shortly after his return said he had settled back in to the role without any issues, some training needs were identified. It was agreed that he would be released “from roster on spare week to shadow SIM by July 2017” (346).

[45]A theme through the appraisals that followed was the claimant asking to shadow SIM/SSM and this always being put off, or postponed. For the claimant this is evidence of discrimination. While he accepted in his evidence that there is a diverse workforce at Victoria, he argued that managers are all white, no Asian or minority staff in permanent management roles; all the promotions to SSM were of white members of staff.

[46]The claimant’s case was that apart from one Asian CA (FL) who had covered the SSM role in 2011, all those promoted where white, and FL did not even gain a promotion to Team Leader (a post subsequently abolished). Mr Ward’s evidence was that FL did not meet the grade for the SSM role. He said that there were other non-white members of staff who were given this opportunity, including AS who acted up and applied for a permanent SSM role but was unsuccessful at interview, and then left to become a Signaller. He referred to two Afro-Caribbean Team Leaders.

[47]Mr Ward accepted that there had not been a permanent SSM of Pakistani origin in the near 20 years of his employment at Victoria, despite Asian staff being a significant proportion of the station workforce. He accepted that the CSAs who became permanent SSMs were all white. He said that for approximately 10 years there were no promotions, but that those which had occurred in the last 5/6 years were all of white members of staff. Mr Ward accepted that two white CSAs (JW and Mr Medhurst) were given the opportunity to progress to SSM in 2012, within 4-5 years of starting their employment, that they acted up from then until their formal promotions in 2017 and 2018 respectively. He accepted that they had done so with the full support of management.

[48]Mr Ward described the SSM role as “incredibly stressful, difficult. I have radio, two phones, massive responsibility, incident management, safety management, people management … you can have training, but there is more responsibility as you progress, and how you cope is factor, and the administration can be a struggle”. We accepted this description of the SSM role.

[49]In 2016 the claimant had sick absence totalling 69 days.

[50]A 1-2-1 occurred with Ms Priest on 2 November 2016. At this stage the claimant had been on a phased return to work, due to return to full duties at end November. This review noted that the claimant was “keen to shadow the SIM role” to be actioned by Ms Priest (349). The claimant asked to book a first aid course in November 2016 (350), and asked to cover/shadow an employee “it will be excellent experience”. (351)

[51]On 17 April 2017 the claimant commenced what became long-term sickness absence for back-pain. An OH report dated 9 May 2017 referenced the claimant’s need for physiotherapy, that he was unfit for work and that a return to work date could not be predicted.

[52]The claimant’s argument was that he could have shadowed for the SSM role before he was off sick, because every 5 weeks CSAs are given a spare week on the rota and this could have been used to shadow or to facilitate training.

[53]The claimant was back to work in September 2017, initially 10 hours a week on 5 hour shifts (355A). An OH report dated 19 October 2017 refers to his GP’s diagnosis of Sciatica, that he was receiving physiotherapy and on strong pain relief. It states the claimant was in discussion to increase his hours from the current 10 hours a week and a plan was in place to return him to full time duties.

[54]The claimant’s 30 October 2017 appraisal states his performance was “good”, that his return to work was “a slow process … so he is very much finding his way and learning the new security plan. When [C] is at work, he is pleasant and always does what is asked of him” (356). For shadowing the SIM, the appraisal states “We will look again at this opportunity next year 2018” (359).

[55]The claimant returned to normal duties on 21 December 2017.

[56]On 29 December 2017 the claimant asked to take special leave as a close relative was ill and in hospital. This was “declined” and the claimant was told he would have to take unpaid leave. His relative died shortly after, and the claimant was told he would need to provide evidence he was arranging the funeral to receive 4 days paid special leave (360c). He provided a letter from the funeral director on 3 January 2018, the day of the funeral (360d). The claimant was then told he could not take special leave; in effect because the funeral had not taken 4 days to arrange. The claimant was told that he could take off 2 days as annual leave for the days he had off work following the funeral so he would not lose pay.

[57]The claimant was very upset and stressed, and told Mr Ward so, saying he was “… probably not going to be well enough to come back to work” the next week; (361). On 8 January 2018 he emailed Mr Ward referencing the stress caused, he said he was diabetic and taking medication, and he would discuss his situation only with Mr Ward on his return, no other SSM (362).

[58]In his evidence the claimant accepted that the respondent’s Special Leave policy allows for one day’s leave following the death of a close relative, but up to 5 days if a sole member if the family is making funeral arrangements, that it is about “time off to make funeral arrangements as well as to attend the funeral” (123e). We noted that is leave is awarded at the manager’s discretion. For the claimant, the issue was that Muslim funerals can last several days after burial, with family present to receive and to pay their respects from visitors often coming from around the country, and prayers every day to the 4th day after burial. The claimant accepted that he had not raised any of these events when requesting Special Leave. The Tribunal accepted that these events were related to the funeral.

[59]Mr Ward accepted that this issue could have been handled better. He said that he was not aware of the arrangements after the funeral, “If I had been aware … I would have spoken to manager and said ‘do something more’. It does feel cold in hindsight, but if I had been armed with more information I would have pressed this [with the SM].”

[60]Mr Ward also accepted that DM, a white comparator, was given 5 days Special Leave to arrange his mother’s funeral. Mr Ward said that DM’s mum lived outside of London, he had to travel and arrange the funeral, and that that this took several days.

[61]The claimant returned to work on 24 January 2018, and was “fully fit, no restrictions”, the cause of absence stress due to a family bereavement. The notes record he was receiving physiotherapy for back pain and had recently been diagnosed with diabetes for which he was on medication (364).

[62]The claimant’s 31 January 2018 1-2-1 with Mr Ward records “once [he] has significantly improved his sickness record he would still like to progress towards management, including shadowing the SSM and going on the SIO course. Also the IOSH course and shadowing the SIM role. Adnan wanted to mention that he acknowledges that his sickness record needs to improve and is fully committed to delivering this aspiration” (365). An OH report dated 16 February 2018 confirms the claimant was fit for all duties, that his back pain was completely resolved.

[63]The claimant raised an emailed concern to Mr Ward on 2 March 2018 about pushing wheelchairs, that he did not want to suffer a recurrence of his back pain, so how should he deal with a request to push a wheelchair for a customer; Mr Ward said he would seek advice.

[64]Later that shift, Mr Ward and the claimant had a meeting, which Mr Ward summarised in an email: about the time off for the appointment – Mr Ward’s email records that he discussed the policy “that this was in no way personal to you” that the claimant then withdrew his complaint having accepted this explanation. The claimant had refused to discuss his sickness issues with other SSMs, this was discussed, that he was contractually required to tell any SSM about sickness absence. He said he could not have a shift off to complete objectives; the claimant would need to do so when he was on “spare or an office shift … To summarise you feel that you would be very happy to put the past couple of weeks behind you and withdraw any complaints…” (378f).

[65]On 5 March 2018 at 01.39, the claimant sent an email to Mr Williams, ccing his union rep. He raised that he did not get special leave on his Aunt’s death, an issue over time off for an appointment for diabetes which was unavoidably booked for a work shift. He complained of bullying and unreasonable treatment when on nightshift, saying he felt discriminated against, victimised and bullied, saying that it was causing him severe mental health issues (379-80).

[66]Mr Williams did not respond to this email. There is a record of him responding to another email the claimant sent shortly after at 01.54 (913 – a document handed up during the hearing). Mr William’s evidence was that he simply missed the 1st email, that he had no intention of ignoring this. It appears that a chaser email asking for a response was not sent

[67]On a Saturday night shift early March 2018 an issue arose and the claimant left work after allegedly refusing to cover a security check; he discussed this with Ms Priest a few days later, and she emailed herself a note of this conversation. Ms Priest records that the claimant was upset, he referred to being unfairly treated, including because he had been asked to change a diabetes appointment or take annual leave. She records that his Aunt’s death and other issues including his diabetes was affecting him greatly. “Adnan reiterated he was completely in the wrong, and we hadn’t treated him unfairly; he did not know what was wrong with him and he felt so stressed out… he said he was stressed and worried about whether he was going to lose his job like last time.” (381).

[68]The diabetes appointment: on requesting time off to attend, he was told that this was in the middle of his shift, and the respondent’s policy requires appointments to be outside working hours if possible. The claimant’s case is that this was a hospital appointment which it was impossible to change. He argues that an employee, Alan, was given time off shift for a 18 March 2018 physio appointment (C776a); Mr Ward accepted that this may have been the case.

[69]A couple of days later the claimant sent an email to Mr Ward, apologising for his behaviour on reception, referring to being stressed and acting out of character, being in pain, and not thinking straight, “in the last few months I went through a difficult time … and I was just thinking that the management team wants me to get sacked, after speaking to Jackie face to face things got cleared up and she gave me good advice. Going forward I will continue to work hard and support the management team and staff, I would like to take this opportunity to say I am ever so sorry for the incident which took place on Saturday night.”. Mr Ward responded, saying he was sorry the claimant was feeling stressed and offering support and referring to the respondent’s counselling service (380-81a).

[70]The claimant’s evidence when he left work was that he was working in pain, that it had been agreed that he would work on reception, that he was then asked to come off reception but he was “so stressed that it was not right for me to continue security checks.” Mr Ward’s evidence was that he had been required to help contactors, that there was nothing in the OH report which said he could have not done so.

[71]On 11 March 2018, the claimant asked Ms Aursulesi for feedback; she responded saying she did not feel able to as they had only worked two shifts together, once they had worked together more she would do so (382a). The claimant’s case is that she could have given feedback on these two shifts; that she did so for others. In his evidence the claimant was unable to accept the contention that Ms Aursulesi was willing to give feedback in the future when they had worked more shifts together.

[72]The claimant’s 1-2-1 meeting with Mr Ward on 18 March 2018 referred to the issues of stress earlier in the year, including over the bereavement leave and his health issues being “misunderstood” by management. On development, it stated that once the claimant “has significantly improved his sickness record he would still like to progress towards management, including shadowing the SSM and going on the SIO course. Also the IOSH course and shadowing the SIM role. Adnan wanted to mention that he acknowledges that his sickness record needs to improve and is fully committed to delivering this aspiration. I have said that we will start to look at this again from September 2018” (document’s emphasis 382b-d)

[73]On 27 March 2018 the claimant asked to do some management courses online, and to shadow for SSM / SIM on rest days. Mr Ward’s response was this was not possible, that “we could start to look at it from September. I do understand that you are keen to progress …” (382d).

[74]Ms Aursulesi witnessed an incident on 30 March 2018, and wrote emails about it to managers; an argument developed between the claimant and a member of staff over a charged battery/radio which, it was said, the claimant had taken, leading to an argument. Ms Aursulesi said she spoke to both and told them to “deal with it as adults”, that the claimant then complained to her, “I told him … that the situation earlier was 5 years old children argument and that I expect them to act like grown-ups and that I believe it is not necessary for a manager to get involved. He wanted to leave and he was shouting at me. I told him he would not leave the room until I had finish to say what I wanted to say. He complied. After I had my say, I told him he is free to leave. … He came back after 5 minutes and apologised, saying he should have never spoke to me like that, that I was right and they will deal with it like grown-ups and hopes I accept it. I did and left it there. I am not happy with his behaviour because I believe he can get quite angry sometimes and get disrespectful to anyone around him, including management. At the moment, I just wanted to make you aware about it.” (383-4)

[75]The claimant also wrote to Mr Ward about this incident, saying it caused him to be stressed (384a-b).

[76]The claimant’s evidence was that an agency member of staff had accused the claimant of stealing his radio, that he did not receive any support and was instead told “not to behave like a child”. He did not accept that he was rude or disrespectful to Ms Aursulesi.

[77]Mr Talukdar’s evidence was that Ms Aursulesi was “ignoring what was happening and was expecting the CSAs to resolve it themselves”. He was unable to say whether this was her management style.

[78]On 31 March 2018 another incident occurred which Ms Aursulesi says caused her concern, and which the claimant contends was an act of discrimination. The claimant was informed by radio that wheelchair assistance was needed to transport an elderly passenger from platform 19 to platform 1. The claimant spoke to Ms Aursulesi, saying he could not do so, that he could not push a wheelchair because of his back. His evidence was that Ms Aursulesi said “she was not aware of this. And she was asking me to arrange for someone else to do this role and I could not find anyone...”. The passenger missed their train. The claimants evidence was that “reception could have assisted customer. Instead it was left on my shoulders.” The claimant’s evidence was that he was “targeted because of my race and sickness record”.

[79]No action was taken after this incident. We accepted Ms Aursulesi’s written account, that she spoke generally with colleagues and suggested different ways they could have handled the incident.

[80]On 9 April 2018 the claimant sent Mr Ward an email titled “Opportunities”, asking to shadow “to improve my skills and move forward” and focussing on specific skills and qualifications, with a list of qualifications (including degree level) he wanted to consider. Mr Ward responded “we will stick with the arrangement previously identified and start to have another look at this from September 2018.” (385-5a).

[81]On 13 April 2018 the claimant emailed Mr Ward, talking about being insecure and stressed because he had been told “management are after me and they want me sacked…. I feel paranoid and isolated … I don’t want to lose my job… I still have that fear in me it is unfortunately but I still believe some of the management team are after me due to their behaviours towards me in the past … I feel I am getting punished for HR giving me my job back.” (385g-h)

[82]The claimant had a 1-2-1 later that day, and confirmed he was feeling better for getting this off his chest but he was stressed, and he felt management did not support him. He again referenced SSM/SIO shadowing, it was again agreed that this would be looked at from September 2018.

[83]A series of emails between on 30 April - 2 May 2018, many of which were contained in a group email, start with the claimant raising concerns about a new security plan and the amount of walking this would entail, and raising other concerns about health and safety at work. Mr Medhurst (by this time a SSM), responded to the group and widened it to include the mobility team, saying: “… There is only one true issue that is at the core of this whole discussion and that is staff “SICKNESS” let’s be honest when it comes to complaining about to much work you don’t have a leg to stand on so please don’t pretend you care about the welfare of the staff. The reason why we are in this position is because certain members of staff exploit the sickness system and they have been doing it for years slowly draining the life out of the rest of the dedicated staff who are left to pick up the pieces and work themselves to the ground trying to cover shifts left right and centre. I have been here almost 12 years now and I have seen just about every trick in the book being used and it always makes me laugh when staff say they struggle to do checks I’m sure you can remember when we had only 3 members of staff per shift and we still managed to get all the checks done and nowhere this level of sickness just ask those who remember what it was like to actually work as a “TEAM” we have lost that here at Victoria. … “… This is why I get so annoyed when people complain about being so hard done by but they are the ones exploiting the system the most (they know who they are) and the ones who have to deal with the aftermath are the ones who never complain but just get on with it. … This is why this place never changes staff attitudes need to change and stop blaming management for all their problems because take it from someone who has been on both sides of the fence the “Managers” roles is no bed of roses either and until you sit in this chair as I have done you will really start to understand exactly what the true “Cancer” of this station really is.”

[84]The claimant saw Ms Priest that evening at 11.00, saying how stressed he was by the email exchange. In an email to senior managers the next day she described this conversation. She says that she told the claimant the exchange wasn’t personal, and that RM “… hadn’t said anything that wasn’t true and that sickness impacts greatly on the business and our colleagues and that some staff abuse the sickness policy…”. (389a-b). The claimant said to Ms Priest he was extremely stressed and on medication, he felt he could not concentrate and may make a mistake, that he may have to go home. “…I told him it was his choice whether or not he went home; he decided to go and left a couple of minutes after midnight…” (389e).

[85]In the claimant’s subsequent grievance, the allegation that this amounted to bullying was upheld. It was not found to amount to discrimination.

[86]The claimant went off work with stress on 3 May 2018, until 20 June 2018. He engaged in a Stress Risk Assessment, out of which arose recommendations relating to work environment, feeling supported, not being isolated. It was agreed that the claimant and his line manager should have weekly 1-2-1s (407-11). A phased return to work was recommended, initially 10 hours per week for 3 weeks (411a).

[87]A mid-term review records that it had been a difficult 6 months with absences, but that the claimant had performed well at work, when at work. Consideration would be given to SIM/SSM training when up to full duties and off restrictions (418).

[88]On 6 July 2018 the claimant attended a welfare meeting, and stated he had been told the management team wanted him sacked, and feeling stressed and harassed; it was agreed that a phased return would continue when the claimant was well enough. The claimant was then off work with stress from 24 July, and he commenced a phased return to work in September 2018, initially 10 hours a week.

[89]On 1 October 2018 al CSAs were emailed with an “opportunity to be considered for the SSM Development Programme” involving shadowing and receiving training, to apply by email by 12 October 2018

[90]The claimant’s 2018 review was undertaken on 15 October 2018. The claimant’s performance was assessed as Good. It states the claimant had decided he was not going to apply for the SSM development opportunity, stating that he needed more time before he commits to this training (437).

[91]The claimant disputed in his evidence that this was an accurate account, saying he was in fact dissuaded by Mr Ward from applying, that he was told there was no point in him doing so. We concluded that the claimant accepted at this meeting that his recent attendance record would count against him in being put forward for this opportunity, and he decided not to apply. His evidence was that at the time he believed Mr Ward was “telling me in my best interests”, and he accepted that he needed to get back to full duties before applying for SSM shadowing. 92. 1-2-1s in December 2018 and February 2019 say that the claimant is happy in his role but would like the opportunity to shadow/train in in the future for the SSM

[93]On 15 February 2019 an incident arose which the claimant says is an example of discrimination, that that RM failed to take any action after he had been bullied by a contractor, in comparison with a member of staff BS, who had previously complained about a contractor, leading to the contractor being banned from the station.

[94]The claimant says he complained; we concluded based on the evidence available – as noted in the Station Log on that day – that in fact another member of staff, MT, complained about the contractor, that the contractor was rude to both MT and the claimant, leading to a confrontation on the concourse. In a subsequent interview Mr Medhurst says he rang the Agency employing the contractor warning about the conduct. The incident on the concourse, involving MT and the contractor, was investigated by the respondent.

[95]The respondent’s position was that contractors had previously been banned for making threats to staff; that the issue involving the claimant and MT and the contractor involved rudeness which did not merit an immediate ban.

[96]We also accepted the evidence was that calls to SSMs were not always answered; that it is possible to miss a call when there are competing demands. We noted that the claimant did not record this as an emergency situation, instead it was an issue of rudeness by a contractor, who refused to provide security details, leading to a confrontation. We noted evidence collected at a subsequent grievance investigation, that there is a “general lack of expectation that managers will respond … as they are too busy on shift, so the CSAs will rely on each other…” (xxxx).

[97]The claimant was off work 26 February - 27 March 2019 (recorded as upset stomach); 15 April – 29 May 2019 (generalised pain).

[98]The claimant was referred to OH on 29 May 2019. The claimant’s evidence ids that this referral was made without his consent. This was disputed. There is no documentary evidence suggesting that the claimant did not give his consent to attend this appointment. There is an email dated 3 May from Ms Priest saying that she has chased up the claimant’s OH referral, this had been booked for a date when he was still off work, and “…I am currently waiting for an appointment… for 29 May” (446). We accepted that the claimant did not object to this referral to OH.

[99]An issue arose which concerned him at the medical, leading to him emailing the SM and Mr Ward, titled “Medical”. He raises concerns that Ms Priest had spoken to the OH Doctor before the appointment. Ms Priest went into the room consulting room in front of the claimant; he says that he did not give his consent to her speaking with the Doctor “…she could have sent an email to the Dr, which would have been documented, or she could have spoken to Dr in front of me.” We noted that the claimant did not say that he objected to this OH appointment, or that he was referred to OH without his consent.

[100]Ms Ward’s evidence was that she saw the OH Dr because the claimant had raised lots of health issues “… and we did not know what was happening. … he was working 2 shifts a week, and it would be 4/5 months before back to full duties. … I mentioned his, and back issues and diabetes…”

[101]The claimant’s email states that “my main concern” is the he overheard the Doctor said to the OH Receptionist that “my case is special”. He said he was concerned, and this “…gave me an indication they want to build a case against me…”. He said he would withhold consent to provide medical records. A further email on 1 June 2019 says his Doctor had told him that OH is there for the company, and that he was withholding consent to provide his medical records, that he could no longer trust OH (454c).

[102]Ms Priest’s evidence was that the claimant asked “why am I a special case?”; that she explained “… this is a specialist referral .. because outside of service level agreement and so we had to pay more. I logged into portal and showed this, I believed that [C] had accepted this at the time.”

[103]On 3 May 2019 the claimant emailed Mr Ward reiterating how unacceptable it was for Ms Priest to speak to the OH, referring to the ‘special’ remark, and referring to his diabetes appointments. He said he did not want Ms Priest involved in this issue. Mr Ward replied 6 June, saying that these issues would be discussed with him and the union rep, “please don’t worry and let me reassure you that Medical Practitioners cannot be influenced by Shift Station Managers or anybody else. When Jackie spoke with the Doctor prior to your medical, this is quite normal and happens regularly before a face- to-face medical…. We will sit down with [union rep], when I am sure we can resolve any outstanding issues or concerns which you may have Adnan.” (454g)

[104]On 12 June 2019 an incident occurred when the claimant was feeling ill at work. In his claim he says he was left to work on Reception without a break and no support from 7am – midday by Mr Darren May. The claimant makes no complaint that Mr May left him on reception in his emails about this incident the next day, instead referring to the stress he was suffering, and referring to comments he made to Ms Priest. The only evidence we have is in Ms Priest’s statement, which states that Darren May was away from reception that day on other duties, and Ms Priest asked for a volunteer for reception, and the claimant volunteered. We accepted this evidence. We accepted that Mr May could not have assisted on the claimant on this date, as he was not covering reception.

[105]According to an email written that day by Ms Priest, the claimant told her that “he felt really pressurised, stressed out, hot from inside and pins and needles in his hands, arms and feet. … He said he started to feel pressurised and stressed in the last few minutes after working in reception as it had been very busy. …. I got him some water and told him to take a break for 20 minutes to see if his symptoms improved; as this point I also offered to call LAS so Paramedics could check assess him, which he declined. … After 25 minutes Adnan came back and said he was still feeling unwell [and described symptoms]. … I suggested it might be a good idea for him to be assessed by paramedics … I contacted LAS and Paramedics arrived around midday. Adnan has been checked and they believe he has experienced a mild anxiety attack but he has gone to hospital in a taxi arranged by the NHS to rule out any other issues…. ”

[106]The claimant alleged that he called the ambulance, not Ms Priest, that he was left alone and had to “drag himself” to hospital, in circumstances where another employee, MW, who had chest pains and was sent by ambulance to hospital, was accompanied. We accepted the clear evidence that Ms Priest called the ambulance; this is what is recorded in Meeting notes signed by the claimant “… so [JP] called an ambulance in order that AM could be checked” (478-80). In fact, in his evidence he accepted that Ms Priest called the ambulance and then stayed with the claimant “… yes, I wanted to be home, but Jackie wanted me to be checked by paramedics…”.

[107]Ms Priest’s evidence was after the paramedic confirmed that it was not an emergency she did not go with him as “… I was SIO on station and have to be there and there was no need for staff member to go”. She referred to MW having a known heart issue and that he was in fact having a heart attack at work. We accepted this evidence.

[108]The claimant emailed Mr Ward on 13 June, saying that his stress was work related. He reiterated these complaints in an email on 23 June. In response Mr Ward asked for permission to be given to release the last OH report. The claimant reiterated his concerns that he was being targeted, the ‘special’ comment that after he had gone off sick he was classed the next day as absent without leave; that he was worried and stressed out by RM’s behaviour. He stated that he was not giving consent for medical records to be released. (457).

[109]The claimant was off work 13 June to 7 July 2019 with work related stress.

[110]On 10 July 2019 the claimant gave his consent for the OH report to be released to Mr Ward and HR; he wanted records to be retained about contact between managers, HR and OH, that there should be an investigation carried by someone from outside the station “… I will be making a complaint about the way I have been treated by the managers soon...”.

[111]On the same day he stated he wished to make a formal complaint against RM, Ms Aursulesi and Ms Priest. He asked for time off when on his shift “to print off and find the correct dates from my emails as evidence” (458b).

[112]The claimant’s absence record led to him being invited to a stage 1 hearing under the Absence management policy; he was informed that he would be given a Stage 1 warning requiring his absence record to improve as the sicknesses had no underlying causes. The claimant said at the stage 1 meeting that he considered the stomach issue to be related to diabetes. In his evidence he accepted that Mr Ward decided not to issue the written warning and so, as the claimant accepted, Mr Ward gave him “the benefit of doubt and no written warning was issued”.

[113]On 23 August 2019 the claimant emailed Mr Ward “Hi, When will I start shadowing the SSO role?”. The same day he sent a longer email titled “Discrimination”. He said: “It’s been 12 years at London Victoria Station, and I did not get any opportunity to progress, I would like you to get my end of year review report paper work since 2007 until now, it will clearly say in my commit section I want to cover SSM, SIM role but nothing has happened, the only answer I get is we will look in to this. Other members of staff started after me have been given the opportunity to progress and step up as SSM while I have been requesting to progress for the last 12 years, I feel discriminated against…” (483- 4).

[114]On 24 August he sent an email to his Union rep, referring to the above, also saying that newer members of staff had been trained as SIO, referring to the reasons he said he had been given, including his sickness record being that management “cannot invest” in him; that other staff had been trained, supported and given “special treatment… Network Rail have a equality policy which has not been in place in my case.”

[115]On 4 September 2019 he emailed Mr Ward and others saying “I have got a history of back pain and I was advised by OH assist that I don’t do any Manual handling, I have been asked by Management to move barriers and take VIP customers around the station, it makes me feel discriminated when the management ask me to do manual handling jobs when they are fully aware of my situation…”.

[116]On 6 September 2019 the claimant emailed Mr Ward “I am still waiting for a response which I emailed you 23/08/19? I would like you to give me a written explanation why I have been over looked over the years when I have requested to be trained as a SSM, SIM, SSA and SIO course and IOSH course. … Members of staff have had the opportunity to be developed and progress on the station, I will give you many names who have started work after me and they had full support and training. I would like you at the same time to arrange my case reference number with HR as I would like to take my case forward.”

[117]The claimant was off work on long-term sick leave from 7 September 2019; on the same day he raised a written complaint against a SSM, IN, stating that her conduct was unacceptable and that he had been told she wanted him sacked.

[118]On 26 September 2019 the claimant made a formal complaint of 5 pages. He sent this to his union rep (491). On 4 October he sent this to Mr Williams. This was acknowledged by Mr Williams on 11 October, with an apology that he had been on leave. In response, the claimant made a “heartfelt request” that no one from Victoria station be involved in his grievance.

[119]Mr Williams responded on 29 October 2019 saying that the grievance would be allocated to a manager from outside Victoria Station.

[120]On 2 December the claimant remained off work, emailing that he was still “extremely stressed and still waiting for my concerns and complaints to be addressed.”

[121]The next the claimant heard was on 5 December 2019 - Ms Morgan a Programme Manager wrote to the claimant saying that a hearing had been arranged for 11 December 2019. Ms Morgan set out her understanding of the grievance allegations. The claimant responded with clarification on the issues, and Ms Morgan responded with a n amended and expanded list of grievance allegations and issues.

[122]The grievance says that the claimant had been “unfairly treated and discriminated at work for the past 12 years and the progression record shows that I was side-lined every year. This is affecting my work life and I am not being able to perform my regular duty at work. This is also having a direct impact in my personal life and … is impacting my mental health as well as my physical health … Over the last few years, I also feel that I am getting bullied, harassed and targeted by few members of the management team and some members of staff who are close to that management team.” He referred to incidents of bullying, and being unfairly suspended from work. an event “I am still struggling to recover from”. He stated that he “feared” coming back to work and was “scared” for his safety and wellbeing (493-7). In his covering email he asked for a “realistic plan which will give me a fair chance to progress” to SSM, SIM; to go on courses, for his issues to be resolved before he returns to work, to be supported and treated fairly, that he would not cover reception anymore; and no manual handling (491- 2).

[123]The grievance allegations were:a. Lack of training and development that supports progression to shadow and cover station shift manager, station support assistant and station interface manager

b. Lack of training on IOSH, EBOSH, SIO and training at Westwood

c. Unfair treatment and lack of support in the workplace

d. Unfair treatment and lack of support from Tracey Vizor, Station Support Assistant

e. Confidentiality of personal information is not being maintained

f. Racial, ill health and disability discrimination experienced as bullying and harassment by colleagues and managers, and unfair treatment in the workplace for shift work, training and opportunities to progress

g. Confidentiality of personal information has been breached, affecting your personal safety and security

h. Unfair treatment and bullying by John Ward (SSM), including 1. Lack of training and development that supports progression to shadow and cover station shift manager, station support assistant and station interface manager roles 2. Lack of training on IOSH, EBOSH, SIO and training at Westwood 3. Differing levels of access to facilities while on shift 4. Bereavement leave applied differently between staff

i. Bullying and harassment by Robert Medhurst and sharing of confidential medical information with other members of staff

j. Bullying and harassment by Andreea Aursulesi

k. Bullying and harassment by Darren May

l. Bullying and harassment by Niculina Luga and sharing of confidential medical information with other members of staff

m. Discrimination by Jackie Priest on the basis of race, ill health and disability

n. Unfair treatment and lack of support from Tracey Vizor, Station Support Assistant

[124]There was some dispute over the notes of the meeting with the claimant and both copies are in the bundle. We have taken the claimant’s notes as an accurate summary of what he believed he had said.

[125]Numerous witnesses were interviewed, including the Station Manager, relevant SSMs, including all the staff against whom allegations were raised.

[126]On 12 February Mr Williams emailed the claimant, saying that he should have “one point of contact” at the station. This was to “manage” his requests and ensure “efficient” communications (615). The claimant asked to contact another member of staff (GF) and was told this was allowed, as GF “is not part of your investigation”.

[127]The claimant then emailed and spoke to another member of staff, JL, ccing MR Williams. In response Mr Williams said that because there was an ongoing investigation with numerous staff being spoken to, “I need to ensure any requests or communications are managed properly… I am best positioned to determine who can help and/or respond to your requests…” (611-12).

[128]While falling after the date of the claim which was filed on 3 February 2020, the Tribunal concluded that it was relevant to address its findings. The grievance report dated 13 June 2020 upheld none of the claimant’s allegations, bar one – the issue with Mr Medhurst’s email of 1 May 2019 which it says amounted to bullying conduct. The report noted that the information about sickness absence was available to all staff as long-term absence was recorded on the staff roster as “sick UFN” (until further notice)

[129]The report details his employment history, and concluded that the dismissal and reinstatement contributed to “a breakdown in trust that has not been addressed since Adnan returned.” It concludes that there were communication issues within the station, caused by shift patterns, the busy station environment and consequent pressure of work on SSMs “there is not a strong team identity”. The report is critical of the claimant’s thinking, saying that for him, a different opinion is perceived “as dismissive or a conspiracy”.

[130]It concluded that there was no evidence of racism; “ …there was a belief expressed at interview that there is favouritism shown at times by the station management team, but not racism.” It recorded that there are “limited career paths for customer service assistants, and they are not clearly laid out …”. The process for training and development for CSA’s to step up to SSM, and the skills and experience required, is not formally documented; that the attributes required are not set out; that SSMs are also selected based on performance reviews. typically 4 are chosen for training every 2 years. “Some applicants were told they were unsuccessful, others claim not to have been told, none were given feedback for next time.”

[131]The report addressed the fact the claimant had not received training and shadowing; stating that this was a decision for Mr Williams; that there did not appear to have been a discussion with Mr Williams about the claimant’s “… personal attributes, skills and readiness to take on an SSM role or any reasonable adjustments that would be required to work with any disability recorded”, and it records Mr Williams view was that the claimant’s work-related stress which arose when he performed Security and Reception roles meant he was not suitable for the more stressful SIO and SSM roles.

[132]The report refers to the feedback given to the claimant, the need to improve his attendance record, that training was discussed with him, he had received consistent feedback on why training and development had not been offered, including when returning from sickness absence, that he had been asked to improve his attendance record, that his absence record was a “big factor” in the decision making “… and confirms the view that attendance at work is needed before progression is considered.” It detailed his absence rates since 2016: 2016 - 69 days (38 days longest uninterrupted absence); 2017 - 140 (115); 2018 - 106 (43); 2019 - 160 (65).

[133]One of the allegations was one of bullying and harassment by Mr May and the fact that in his statement at grievance stage Mr May, to summarise the grievance report Mr May “…has been open about his dislike for Adnan and others in the team who he deems as not having a sense of duty and customer service or abuse sickness leave.” It records him saying “… [there are some] very poor quality individuals here, despite the security guards having a tough job some of them are very poor. Lots of money and resources goes towards them and the standard isn’t good enough … The lack of attendance by some I find appalling and disgusting; I have the highest attendance record here at the station, something which I’m very proud of” … I work on the shop floor and I know for a fact that it’s being abused. I hear things like “it’s my turn” or “I’m owed some sickness leave”. It’s an insult to those with real issues that the system is being abused by these people.”

[134]At grievance stage individuals who were interviewed stated that Mr May was not rude when speaking to the claimant (630); others stated that Mr May’s conduct was different with the claimant, and others who he “or management don’t like …”, and his behaviour is different with them [But] Darren is not rude, he just ignores Adnan … I have never seen Darren misbehave with Adnan”.

[135]In his evidence, the claimant accepted that the following adjustments had been made at various times during his employment, to accommodate his health issues: phased returns to work, light duties including walking no more than 400 metres, no prolonged sitting, 5 security checks in a row, no manual handling (but the claimant said his role did not involve manual handling), not pushing wheelchairs, temporary relocation to Reception, intermittent sitting and standing, additional rest breaks for disability, only day shifts no nights, shorter shifts of no more than 8 hours. He argued however that a white colleague (CB) who had foot issues and was diabetic was able to work 10-5.00 Monday to Fridays and time off for hospital; appointments, he never came out of reception to walk or security checks and he was supported by management team; this was in place since 2016. The respondent’s position is that this employee made a flexible working request which was accepted, and did not have reasonable adjustments to his working hours.

[136]The claimant gave evidence for why he had not brought a claim earlier, given he accepted he was in “regular communication” with his TU rep, He described being put off and being told it would be impossible to prove, that he became “demotivated”. He said that events had been going on for years, that “… I have been overlooking incidents taking place, until I reached a point if not being able to take it anymore, so I was left with no choice.”

[137]He also referred to his ill health, that he thought that things would change, but it was “lots of small incidents”. He accepted that he was aware of ET time limits from 2104 onwards. Closing Arguments

[138]The Tribunal read written submissions for an hour and then heard verbal arguments.

[139]Ms Balner argues that the claimant is saying dozens of people discriminated against him over 12 years. There is no evidence in support, and the claimant is inconsistent on his race discrimination claim.

[140]Ms Balner accepted that all there is a high number of BAME CSMs, including Asian CSMs, and all managers are white. She argued that the claimant’s sickness absence record showed that the respondent had not discriminated against him, in fact the respondent was lenient “…An extraordinary and tolerant approach”; if the respondent had a plan to remove the claimant, it could have done so on sickness grounds. There were 20+ OH referrals and “dozens of reasonable adjustments put in place as suggested by OH”.

[141]On conduct it was “extraordinary to reinstate on the evidence, the claimant received “a lenient outcome”. Any reasonable observer looking at case would be “… astounded that the claimant was still employed by the respondent, who has been generous, lenient and supportive of the claimant. No reasonable tribunal could conclude that C discriminated against on grounds of race/disability.”

[142]Ms Balner said that there is a lot of evidence which is not in dispute; “the dispute is the assumption that these are acts of discrimination … the claimant’s perceptions are unreasonable; he complains about so many instances – going back years, which suggests an unreasonable approach”. The claimant has accepted on several occasions in the documents that he leapt to conclusions, he uses the word paranoid, and apologises; “so treat his evidence with caution”.

[143]Ms Balner argued that the claimant’s witnesses do not assist his case. As one example given, Mr Adam denied hearing any race discrimination, referring only that there was talk behind the claimant’s back, and was unable to name managers speaking about the claimant.

[144]On the allegations:

[145]Training and development – these claims are out of time as it relates to conduct from 2015-2018. No good reason why claims not brought earlier. So not just and equitable to extend. In any event, there is no less favourable treatment. The claimant agreed he was not ready. The claimant’s comparators are not in the same or similar circumstances - for example RX and AC; the tribunal will need to consider a hypothetical comparator.

[146]On the disability claim, there was no unfavourable treatment. If there was, it is justified: the legitimate aim is the proper and effective running of R’s business. It was a proportionate response as it was only a temporary measure. “He was not told never.” No lesser measure is appropriate.

[147]On the way in which staff started working towards the SSM role, e.g. shadowing, and he degree of discretion which this may give individual managers, giving rise to allegations of favouritism and discrimination, Ms Balner argued that the CASs “need to be in the business to do this and with hundreds of days sick you can’t perform the role”. It’s proportionate - because of sickness absence he can’t do the role. Also a reason for absence is stress, and this is asking the claimant to step up into a far more stressful role. “So this is operationally justified - the genuine need for role to be performed effectively… the respondent must have a person able to cope with the role.” This also factors in the claimant’s wellbeing, the practicability of him not sustaining his role, and stress. “So this was justified and proportionate.”

[148]The Cleaner’s statement: Again this is out of time. Would the cleaner have been spoken to with a white hypothetical comparator? Yes, because at this time the claimant is not a suspect.

[149]Suspension and dismissal: Out of time. Also would a white British comparator have been suspended and dismissed? The answer is yes – this is not to do with race or the claimant’s absence.

[150]Bereavement leave. No less favourable treatment. The claimant’s comparators were in different positions in that the y did spend days arranging the funeral.

[151]Email 5 March: this was not dealt with in the evidence, in any event it was not to do with his race or absences.

[152]Feedback request: the reason this request was refused was because of a lack of time working together, it was not do to with the claimant’s race or absences from work.

[153]Radio battery: A comparator who behaved the same way, including being disrespectful of the manager, would have been treated the same. The claimant’s conduct caused this incident.

[154]Wheelchair: In the same circumstances with a passenger missing their train, the same would have occurred.

[155]Ms Aursulesi’s follow-up email describing his anger; again with a white comparator the same would have occurred.

[156]Mr Medhurst email: there was a significant issue with sickness absences, and it is important to read the whole chain in context. The claimant’s email was sent to everyone, and so Mr Medhurst is justified in responding the same. The claimant refers to this planned change ‘breaching his health and safety … outrageous…’; and so in context Mr Medhurst’s response is proportionate. “And the substance is true”. The same is true on the harassment claim.

[157]Contractor bullying: A hypothetical comparator would be treated the same; and in fact the claimant did not raise this complaint about the contractor, Mr Taldukar did. The incident involving BS – this was a more serious allegation and therefore a different outcome.

[158]OH referral: There is no less favourable treatment; the claimant was referred to OH because of his absence record. On the disability claim, it was justified treatment.

[159]Ambulance: there is no less favourable treatment. MW is not a comparator because his health emergency was more serious.

[160]Delay in the grievance meeting: this is HR and poor administration and difficulty finding hearing manager, it is not less favourable treatment. And it is not unfavourable treatment because of his absences

[161]Darren May: This is the first claim in time: but his answers were “… honest answers and were comments unrelated to race”. There is no unfavourable treatment – no disadvantage to the claimant. And it is justified as truthful evidence.

[162]Point of contact email: there was no less favourable treatment and nothing to do with race/absences.

[163]To summarise, Ms Balner argued that only two claims have any basis for a claim – the SSM training, and Mr Medhurst’s email. On the training “the operational need to undertake a highly stressful position of responsibility” was the legitimate aim: the claimant’s stress at work, his high level of absences and his lack of presence on his phased returns meant that it was justified not to give him this role. The tribunal cannot say it is not justified that he has to improve his record first.

[164]The claimant argued as follows:

[165]The disciplinary issue: A white person would not have been treated the same. Mr Wood was not suspended or interviewed, and he is friends via his wife with Ms Priest. And RD accepted that she did not see me coming from the SM office, it was the SSM’s office. JW was present, he was not suspended and he was white. “And I believed my email was hacked; with a white employee they would have had a word and said ‘it’s a misunderstanding’”. It took 22 months of constant trauma before reinstatement, unprecedented level of stress, flashback “… and I wanted to prove my innocence”.

[166]Acting up: the claimant argued that he had coordinated and dealt with situations while on shift, and many incidents dealt with, including emergencies and the death of passengers. The SSM role - “this is not as stressful as is made out – it is not documented or recorded that it’s a stressful role…. With the right support and help I could have stepped up … I did not get the right support”. The right support would have been “addressing all of my concerns, for example, Ms xxxx’s conduct, Mr Medhurst’s letter.

[167]Battery: the claimant argued that Ms XX would have intervened, “but because of my race and because of my absences she decided not to get involved. She would have intervened with white employee. She ignored me and had a joke with white staff. She was ignoring me.”

[168]OH referral: the claimant argued that he had not given consent for Ms Priest to talk to the OH doctor; this had not been done before in his “many” OH referrals. “At that time no one said that your case is special. This was alarming. I asked Dr what do you mean by special and she said ‘it’s not what you think’. I was very upset not thinking straight and went to SSM office.

[169]Cab to hospital: the claimant is not relying on an actual employee, he argued a white comparator “… would have been treated differently, would have been supported going to hospital. I wanted to be home, feeling anxious and had panic attack and I wanted to be home.”

[170]The claimant urged that the Tribunal “should consider all I have submitted, all that has happened to me, and sleepless nights considering case, and representing myself, many mistakes, and suffering for a long period of time. I have raised many concerns which have been overlooked, and reason why put claim in is to seek justice.”

[171]Ms Balner clarified a further point on discrimination arising from disability: knowledge of disability: much of the SSM development issues relates to 2018, when many of his absences were stress related (page 91 paragraph 4). The respondent does not accept that this is a disability, and does not accept knowledge of it. There is no constructive knowledge, the medical evidence is this is a grief reaction, and OH says not a disability. So the respondent knows he is stressed but there is no constructive knowledge. There is no evidence at this time that the grief reaction is likely to continue.

[172]And same with R Medhurst email – unfavourable treatment – ‘you can’t talk’ – it’s about absences in 2018 and same with discrim arising and harassment. Conclusions on the evidence and law Disability Mental impairment

[173]The respondent accepts that the claimant was disabled with a mental impairment from 20 June 2019. We concluded that the claimant was a disabled person as a result of a mental impairment from February 2014 to the date of his return to work in December 2015, and from January 2018 to the date of claim.

[174]The OH report in February 2014 refers to the claimant suffering from moderate anxiety, not sleeping well and attending counselling. From the evidence we heard, we accepted that this was a period of significant stress for the claimant – he was under investigation and was dismissed. We note the reference to ‘stress at work’ in the claimant’s medical records. We concluded that the claimant was disabled during this period, that he was suffering from depression which had a substantial effect on his ability to undertake everyday tasks. We accepted the claimant’s disability impact statement, which refers to being worried, scared, having panic attacks and having difficulty concentrating during this period.

[175]From December 2015 to 30 May 2018 we noted that there was no record in his GP records or in medical reports which suggested that the claimant was suffering from a mental impairment. The disability impact statement does not refer to significant symptoms during this period. We considered that if the claimant was suffering from a mental impairment, it was not having a substantial effect on his ability to undertake day to day activities.

[176]We concluded that the claimant’s depression become significantly worse in early January 2018, and that it started having a substantial effect on his ability to undertake day to day activities from January 2018. We noted that the claimant had a bereavement of a close relative, described as grief reaction in the OH reports. We accepted the claimant’s evidence, that he “locked himself away” and had significant difficulty concentrating from January 2018 onwards. We noted that that claimant was prescribed anti-depressant medication during this period. The OH reports in 2018 state:a. 30 May 2018: moderate depression, symptoms of anxiety and depression, low mood, reduced concentration and sleep disturbance.

b. 27 June 2018: Low mood, grief reaction and work-related stress

c. 9 August 2018: significant psychological symptoms associated with stress and anxiety.

d. 4 September 2018: anxiety and depression related symptoms including poor sleep pattern and low mood.

[177]We noted that OH reports and medical records state that the claimant continued to have work-related stress in June 2019, and that this is continuing throughout 2019 and into 2020. The OH report of April 2020 refers to the claimant having anxiety and depression and on medication for these conditions. We accepted the claimant’s impact statement evidence that he felt demotivated, he had difficulty sleeping and cleaning, taking part in social activities, keeping himself isolated, that he felt he was “losing interest in life”.

[178]We concluded that from January 2018 to the date of claim that the claimant’s mental health impairments were having a substantial adverse effect on his ability to undertake these activities of daily life.

[179]We also concluded that the respondent was aware of the fact that the claimant was suffering from a significant mental impairment from January 2014 to December 2015, and from January 2018 to the date of claim. In the latter period, the respondent was receiving OH reports which were making it clear he had symptoms of depression. The claimant had told his employer from January 2018 how upset he was about the failure to grant him special leave, the effect that he was having on him, and the fear he had that he was being targeted because of the events in 2014-5. He went off work with stress on several occasions during this period.

[180]If we are wrong, and there was no actual knowledge during this period, we concluded that the respondent should have known that the claimant was suffering from depression, it therefore had constructive knowledge. Diabetes

[181]The claimant says that the respondent had knowledge of this condition from January 2018. The respondent accepts that the claimant was diagnosed with diabetes in January 2018, but that it did not know the type of diabetes. We noted that the claimant’s return to work interview refers to his diabetes diagnosis and the medication being prescribed for it (364). In February 2018 OH stated that it was not a disability (774). This report also refers to the claimant being treated for medication for this condition. The 27 June 2018 (779) report states that diabetes may amount to a disability. We noted that in 2019 the medical report refers to unstable diabetes, fatigue and pain.

[182]We noted that the test is the effect on the claimant’s ability to undertake day to day activities, discounting the effects of medication. We concluded that absent medication the claimant’s diabetes was likely to be poorly controlled and that it would have a substantial effect on his day to day activities. The respondent has not suggested that absent medication his condition would have a minor effect on him.

[183]We concluded that his medication was supressing adverse symptoms, that without the medication there would have been a substantial effect on the claimant’s ability to undertake day to day activities.

[184]We concluded that the respondent should have been aware based on its knowledge that this condition may well amount to a disability, notwithstanding the comment in the February 2018 OH report. We considered that the respondent had constructive knowledge of diabetes as a disability from January 2018. Direct race discrimination The 7 January 2014 statement from the cleaner

[185]The claimant contends that this statement is fraudulent, that it would not have been taken or that a different statement would have been obtained with a white hypothetical comparator, that the cleaner was pressurised or hoodwinked into signing this statement.

[186]We concluded that the claimant was treated no differently than a white hypothetical comparator. The claimant was one of 3 members of staff on duty, and he potentially could access the SSM area, close to the SM office. The cleaner identified him in the vicinity and coming out of the SM office. She indicated that the claimant was holding some paper.

[187]We accepted that the cleaner’s reading English was not good, but we accepted the respondent’s evidence that she could understand spoken English. We noted that the explanations she gave were clear, and we noted also that she signed the statement.

[188]We accepted that the appeal came to a different conclusion, and that the claimant’s evidence at appeal was accepted - that he was entitled to be in the area, to use the SSM kitchen and to retrieve paperwork; also that the cleaner may have been inaccurate in demonstrating that he had come out of the SM’s door.

[189]But there was no evidence that the cleaner was in some way pressurised into giving the claimant’s name or that her answers were being recorded incorrectly, or she was being hoodwinked into providing inaccurate answers. There was also no evidence that the cleaner’s manager was in some way involved, as he would have to be if she was in some way being coerced or hoodwinked into providing incorrect answers.

[190]We concluded that this interview was not designed to point the finger of blame at the claimant, as he suggests. There was no reason for RD to tell anything other than what she believed to be the truth; there was no evidence that she was in some way intimidated, or hoodwinked, into giving false answers. RD was asked about movements in the SSM/SM offices, and provided answers.

[191]We concluded that had letters been left on the SMs desk during a shift where a hypothetical white CSA comparator was on duty, and where that CSA was seen by the cleaner on the nightshift holding paper in or around the vicinity of the manager’s office and SSM kitchen, the cleaner would have been interviewed in the same way. There was no different treatment, interviewing the cleaner in the way she was did not amount to less favourable treatment of the claimant. The Claimant was unfairly suspended on 7th January 2014

[192]We considered how a white hypothetical comparator would have been treated. We considered the evidence which was collated at the time the claimant was suspended. This included the cleaner’s statement, the contents of the letters and the similarities between its contents and complaints the claimant had been raising in the past. There was also the evidence which had arisen over the email sent to Mr Gogay and the claimant’s explanation for this.

[193]A white comparator would have similar evidence collated from similar sources which may have suggested their involvement in both incidents. We concluded that a white comparator would have been treated the same.

[194]We concluded that there would have needed to be a conspiracy against the claimant, on the ground of his race, which would mean that witnesses would either have to be intimidated or hoodwinked into giving inaccurate evidence, and members of staff providing deliberately inaccurate statements. We saw no evidence of this. At appeal, the decision to dismiss was clearly felt to be unreasonable – hence ‘unfair’; in part this was said to be because of the quality of the investigation. Again, we concluded that unfairness in the process did not equate to discrimination – a white comparator would have been treated the same way.

[195]The claimant argues that Mr Ward should have been suspended. We accepted that he was present that evening on the shift and was in or around the SSM office. We noted that the claimant denied being in the SSM office when interviewed on 7 January, but at appeal he accepted he did go in the office. We also noted that Mr Ward’s role that shift required him to log entries in the SSM office, whereas the claimant’s role did not.

[196]We also concluded that there was a perception amongst the respondent’s management that Mr Ward had no reason to write these letters – he was regularly acting up as SSM and had no complaint about his role; the claimant at this time did have complaints. There was also the fact of the emails and Mr Gogay’s evidence, which was a factor in the claimant’s suspension. There was no evidence pointing to Mr Ward, there was some evidence pointing to the claimant.

[197]The claimant was treated no differently than a white comparator would have been treated in the same or similar circumstances. Jacki Priest completed an unfair investigation from 6 January to 27 April 2014

[198]We accept that the investigation may well have been unfair – as found at appeal. However, the legal question for the Tribunal to consider is whether a different investigation would have occurred with a hypothetical comparator. We concluded not. We noted that 8 people were interviewed as part of the investigation, that there was at the least circumstantial evidence which pointed to the claimant being behind the letters: a draft letter in similar terms on the claimant’s work account; the spelling mistakes; the fact that the claimant was one of the members of staff on nightshift, the cleaner’s evidence.

[199]We also noted the IT consultant’s report which suggested that the claimant may have been involved in sending an email to his Manager which he had disowned, instead he had raised allegations of hacking. We noted that in his evidence and questions, the claimant accepted that he had sent an email to Mr Gogay, he said he had meant to send it to another ‘Adrian’ – his union rep. But he had told Mr Gogay at the time that he had not sent this email.

[200]We concluded that in the same or similar circumstances, with similar evidence collated, a white hypothetical comparator would have had a similar investigation and report findings. The Claimant was dismissed by Lydia Fenny on 25th June 2014 (based on Jacki Priest’s investigation) before the dismissal was revoked on November 2015

[201]We again considered how a white hypothetical comparator would have been treated when faced with the same or similar disciplinary allegations and evidence.

[202]We noted that there is no evidence of Ms Fenny’s reasoning for her decision to dismiss. We noted also that the evidence which Ms Fenny used to dismiss was disregarded on appeal. We noted that a different disciplinary manager may not have dismissed based on this evidence. However, the test is not the fairness of the process (the unfair dismissal test) but whether the claimant was treated less favourably than a white comparator.

[203]We concluded that a white CSA with similar evidence in the disciplinary report, who was appearing on a disciplinary in front of Ms Fenny would have been treated the same way. The claimant was not treated less favourably on grounds of his race in the dismissal process. A failure to allow the claimant to develop and progress to the SSM role between December 2015 and December 2016

[204]We considered the comparable circumstances of a hypothetical comparator who returned to work after a long absence and who required some training needs. We noted that on his return it was agreed that the claimant would settle back into his role and that consideration would be given to his acting up by July 2016. The claimant’s appraisal shortly after his return said he had settled back in to the role without any issues, some training needs were identified.

[205]However, the claimant had significant sickness absence in 2016, 69 days; a comparator would have the same or similar absences. Thereafter he was on a phased return to work, as would a hypothetical comparator in the same or similar circumstances to the claimant.

[206]We concluded that a white comparator who had returned to work after a long absence would not have been given shadowing opportunities on or shortly after his return. We accepted the respondent’s evidence that in order to be considered for shadowing the SSM role a CSA needed to show consistent performance at a high standard in their current roles. We concluded that a white comparator performing similarly, with similar absences for similar reasons following their return to work would have been treated in the same way.

[207]We did not accept the claimant’s contention that RX was a suitable comparator. The requirement is for a comparator to be in the same or comparable circumstances, and this would include a similar level of absence and then a lengthy return to work on reduced hours. RX was seen internally as an exceptional candidate who had transport sector management experience elsewhere.

[208]The claimant was not treated less favourably than a comparator in the same or similar circumstances.

[209]However, we also noted that the process for shadowing and stepping up into the SSM role was, until the invitation to shadow in 2019, an ad-hoc process, subject to discussion between line manager, the SM and the CSA concerned. We concluded that the process was not clear, it was regarded by CSA staff as confusing, and it gave rise to a perception of preferential treatment for some.

[210]In addition, there was the simple fact that there had been no successful applicant of Pakistani origin to the SSM role, despite the fact that there were over the years several CSAs of Pakistani origin who had wished to progress into this role.

[211]We noted that the claimant’s witnesses were genuinely of the view that race was a factor in their lack of progression – with Mr Adam progressing in his career after he left Victoria. Again this has added to the general perception that race has been a factor in their non-progression.

[212]We concluded that there were three factors – a lack of clarity in the process for progression; the simple fact of the claimant’s repeated requests to progress which were constantly pushed back; the simple fact of the lack of progression of CSAs of Pakistani origin to SSM – which have caused discontentment and disillusionment to the claimant and a genuine belief that his race has been a factor in his non-progression.

[213]There was a fourth factor in the claimant’s case which we did not feel was a reasonable perception, that he was being victimised because of his prior dismissal and reinstatement. We felt that the facts spoke for themselves – that Ms Priest and Mr Ward were actively managing the claimant in a reasonable and fair way from the date of his return to work in December 2015 to the date of his claim. From 30 October 2017 and in meetings during 2018 and 2019 the claimant was told that because of his absences DW was not willing to allow him to develop into the SM role, or attend training courses, that JP was a decision maker

[214]It is accepted that the claimant was told that he could not progress with SSM shadowing and associated training courses because of his absences and because he was often on lengthy phased returns to work thereafter. We accepted that a reason for this was because the respondent wanted to see a sustained improvement in the claimant’s absence levels.

[215]We accepted that the respondent’s reason for this was because the role of SSM is stressful and difficult, with significant additional responsibilities over the claimant’s CSA responsibilities. The claimant’s case was that his role was just as stressful, that he could clearly cope with the SSM role. We accepted the respondent’s view that the SSM role is far more stressful with significant management responsibilities and the need for decisive decision making in often fast moving situations.

[216]We accepted that the claimant’s absences and the fact he was on phased returns to work after many of the absences meant that he was not seen to be performing to the appropriate level to merit undertaking training or career progression by shadowing the SSM role.

[217]Again, we need to consider how a comparator in the same of similar circumstances would have been treated. The claimant compares himself to RX. For the reasons above we did not consider he was an appropriate comparator, because he had few absences, he was regarded as an exceptional candidate, he had previous management experience.

[218]We also compared the claimant to a white hypothetical comparator, who would have a similar absence pattern and phased returns to work, and absences for the same reasons – i.e. a long-term back condition, diabetes, and depression and work-related stress. We concluded that this comparator would have been treated the same, that the comparator would have been told that his absence needed to improve, and would have been given a date for the shadowing to take place; that at that time the training /shadowing was to take place, the comparator would have been on sickness absence or a phased return to work.

[219]We concluded that the claimant was not treated less favourably than either the claimant’s named comparator, or a hypothetical comparator. The claimant was told he could only take one day’s special (bereavement) leave

[220]The claimant compares himself to DM and JF. We heard little about JF in the evidence, we did hear about DM. We noted that DM took several days to arrange his mother’s funeral and he had to travel outside London to make these arrangements. We concluded that this was appropriate and within the special leave policy. The respondent was asked for this leave before the funeral was arranged, and the time taken off was squarely in line with the special leave policy.

[221]The Tribunal was concerned that the respondent’s policy at the time did not have in mind the cultural and religious issues around Muslim funerals (and potentially other faiths and cultural practices), including the ceremony and mourning rituals which follow burial. While these rituals are not arrangements for a funeral, they are a significant part of the funeral.

[222]We noted that the respondent’s witnesses accepted that the claimant’s request could have been handled better.

[223]However, the test for the Tribunal is whether the claimant was treated less favourably than comparators in the same or similar circumstances. For the reason above, DM was not in the same circumstance as he was arranging the funeral, and he was not seeking leave for events which occurred after burial.

[224]We also considered the position of a hypothetical comparator, who would be a person who had asked for several days’ absence on the day of the funeral, but who did not make clear that this was because the funeral and its aftermath continued for several days thereafter. We concluded that the respondent was not aware of the reasons why the claimant wanted this time off as special leave. We concluded that had a comparator made a similar request in similar circumstances, they would have been treated the same.

[225]Accordingly, we concluded that the claimant was not less favourably treated that his actual or a hypothetical comparator by being told he could only have one day’s special leave. On, or about, 12th March 2018, on the Claimant asked Andreea Aursulesi for feedback on him but she refused to give it to him saying that she was unable to because they had only worked together for one or two shifts

[226]The claimant’s case is that the reason why the claimant was not given this feedback was because of his race. Ms Aursulesi was saying was that she would provide this feedback once they had worked together for longer.

[227]The Tribunal is asked to conclude that the fact that they had only work together for two shifts was irrelevant to feedback, that Ms Aursulesi would have provided feedback for a white comparator who had worked with her for two shifts.

[228]We rejected this explanation. While Ms Aursulesi did not give evidence, we accepted that it was proportionate, valid and reasonable to wait to give feedback until they had worked together for a longer period. We accepted that 2 shifts is insufficient time to obtain an informed and realistic impression of a CSAs capabilities and weaknesses, which was required for valid feedback.

[229]We concluded that the claimant was not treated less favourably than a white comparator who had worked 2 shifts with Ms Aursulesi. On, or about, 30th March 2018, Andreea Aursulesi shouted at the Claimant to “stop behaving like a child”, in front other members of staff during a briefing, when the Claimant was being bullied by agency staff who accused him of stealing a radio

[230]We did not accept the argument being made by the claimant, that he was being bullied by a contractor. We accepted that there was an argument between the claimant and a comparator about a radio being charged, that the claimant had been accused of ‘stealing’ the battery and that the claimant had angrily rejected this, and that there was an argument. We did not accept that this amounted to bullying conduct – it was a one-off argument between colleagues. The claimant was not being accused of actual theft, he was being accused of taking a battery belonging to the respondent which the agency staff member was charging, and we concluded the claimant was aware of this.

[231]The claimant then complained to Ms Aursulesi who had seen the incident, and he got angry when she did not support his view, she told him to stop behaving like a child.

[232]We asked how a hypothetical comparator would be treated in this situation, an argument witnessed by Ms Aursulesi about a radio, and the comparator then getting angry with her. We concluded that this comparator would have been treated in exactly the same way; that Ms Aursulesi would have said the same to the comparator. There was no less favourable treatment of the claimant. On or about 30 March 2018 Andreea Aursulesi sent an email to Wesley Morgan, in which she mentioned that the Claimant and an agency staff member accused each other of theft. This amounted to a false allegation of theft by Andreea Aursulesi against the Claimant

[233]The tribunal did not accept that an allegation of theft was made by Ms Aursulesi, who was instead simply relaying in factual terms what had been said by the claimant and the agency staff member to each other. Ms Aursulesi was not accusing the claimant of theft.

[234]We felt it was self-evident that if Ms Aursulesi was going to write this email, she would have to write what she saw and heard, and this is what she did. These words had been used by the agency staff and by the claimant. She was repeating what had happened.

[235]We did not accept that Ms Aursulesi would have treated a white CSA who had an argument about a radio and where accusation of theft had been made, any differently than she treated the claimant. A similar email would have been sent to managers. The claimant was not treated less favourably than this comparator. On, or about, 31st March 2018, Andreea Aursulesi told the Claimant to push a customer in a wheelchair

[236]It is accepted that Ms Aursulesi did tell the claimant to push a wheelchair. It is also accepted that the claimant did not do so. We accepted that this was the claimant’s role on this shift. We also accepted that he had previously raised concerns about pushing a wheelchair.

[237]The claimant’s case is that a white comparator on shift would not have been asked to push a wheelchair by Ms Aursulesi. We did not accept this. We concluded that in the same situation with a white CSA on shift that Ms Aursulesi would have asked exactly the same of this comparator. There was no differential treatment on the ground of the claimant’s race. In an email dated on, or about, 31st March 2018, to John Ward, Andreea Aursulesi stated about the Claimant that “I believe he can get quite angry sometimes and get disrespectful to anyone around him, including management”. The Claimant raised his concerns to John Ward about this email on or about, 1st April 2018 but he was ignored

[238]We noted that Ms Aursulesi did not give evidence, and therefore could not be challenged on the issues she wrote in this email. It is the claimant’s case that this email would not have been written about a hypothetical white comparator.

[239]We did not agree. We accepted that this email was a factual account of what had happened and Ms Aursulesi’s opinion of the claimant, having witnessed this and other incidents. The claimant did challenge Ms Aursulesi about the incident and her handling of it. He was angry and shouted at her.

[240]A white comparator would have acted the same or similarly. We concluded that Ms Aursulesi would, in this situation, have written a similar email to her manager.

[241]We also concluded that had this comparator raised this issue with Mr Ward, he would have similarly not taken any further action.

[242]There was no less favourable treatment of the claimant on the grounds of his race. On 1st May 2018 Robert Medhurst, Station Shift Manager, sent an email to the Claimant in which Mr Medhurst called the Claimant the “cancer of the station”

[243]We did not accept that this statement was a direct reference to the claimant as the ‘cancer of the station’; however it did indirectly refer to him, as he was one of the members of staff who had taken significant sickness absence, and we accepted that Mr Medhurst considered that the claimant was one of those who were taking advantage of the sickness scheme. This wording therefore did refer to the claimant, amongst others, it is a general accusation not just referring to the claimant. It was also addressed to the claimant, but this was because it was comments in response to the claimant’s email.

[244]The claimant compares himself to named staff members. We did not have the detailed sickness record of these employees, and so could not determine whether they were direct comparators. But, none of them had written an email to staff in the terms that the claimant had written, and so their circumstances are not the same or similar. A comparator would need to have written a similar email to the claimant’s - the necessary precondition for a comparison. They were not appropriate comparators.

[245]We concluded that Mr Medhurst would have held this view about a white comparator who had a similar level and pattern of sickness absence, and who had also written an open email about the changing shift patterns and the health and safety risk. He sent this response because he was angry, and we concluded that concluded that Mr Medhurst would have sent a similar response to a white comparator’s email, where that comparator had a similar level of absence to that of the claimant.

[246]This email was not less favourable treatment on the ground of his race. Robert Medhurst failed to take any action when the Claimant complained that he was bullied by a white female contractor (AB) on 15th February 2019 whilst in reception at Victoria Station

[247]The circumstances of this incident and that of BS with who the claimant compares himself were different. The contractor who abused BS was banned. Also, Mr Medhurst did take action, he rang the contractor’s company to complain. We concluded that this incident was far less serious than that alleged by BS, where there had been abuse and threats made.

[248]We therefore concluded that the claimant was treated no less favourably than a white employee would have been treated in the same situation. The situation with this contractor was less serious than the incident with BS, it was not serious enough to warrant the contractor being banned and the claimant was not treated less favourably than a comparator would have been treated in the same situation. Jacki Priest referred the Claimant to Occupational Health (‘OH’) without his consent. Jacki Priest’s purpose in making the referral was to try and get the Claimant redeployed

[249]We did not accept that the claimant withheld his consent to this referral. There is no evidence saying so, and the claimant does not say this in his witness statement.

[250]We also do not accept that the purpose of the referral was to get the claimant redeployed. Again, there is no evidence to say so. We accepted that at this time Ms Priest may have had a degree of frustration with the claimant’s absence record, but we do not accept that she behaved unprofessionally or that this referral was made with a specific purpose in mind.

[251]We therefore concluded that Ms Priest would have made this referral with a white CSA who had a similar level of sickness absence and health issues at work. On 29th May 2019, after the Claimant had been referred to OH by Jacki Priest, she spoke with the OH doctor (Dr Suzanne Lucey) before his appointment without the Claimant’s consent

[252]The OH Doctor was spoken to, as Ms Priest outlines in her statement, because this was a practice of the respondent, in particular where there are complex workrelated medical issues. We accepted that Ms Priest had explained to the claimant that she was going to speak to the Dr, that this is the reason why they went to the OH centre together.

[253]We accepted that Ms Priest would have also spoken to the OH Doctor with a white comparator employee with a similar pattern of absence. We concluded that the claimant was not treated less favourably than a comparator employee. On 12th June 2019, the Claimant called an ambulance for himself as he was unwell. Jacki Priest did not show a duty of care towards the Claimant in that she left him alone to “drag” himself to the hospital

[254]This allegation has several factual inaccuracies. The claimant did not call the ambulance, Ms Priest did. He was not left to drag himself to hospital, in fact he took a cab on Ms Priest’s suggestion, the paramedic having made clear that this was not a medical emergency. In fact he did not attend hospital. Comparator MW had a far more serious medical emergency, requiring an ambulance to A&E.

[255]We concluded that a hypothetical white comparator who had the same symptoms as the claimant, who had been assessed by a paramedic as not having a medical emergency and who did not need an ambulance to go to hospital, would have been treated in exactly the same way as the claimant. He was not treated less favourably than a white comparator. On or about 12th June 2019, the Claimant was left alone working on reception, without any support or break, between 7am to 12pm, by Darren May

[256]The claimant was left alone on reception for several hours. We accepted the evidence that Ms Priest had asked for volunteers as Mr May was undertaking other duties, that Mr May was therefore not available to assist the claimant.

[257]We concluded that a hypothetical white comparator who volunteered for this duty would not have been treated any differently, that Mr May would not have assisted the comparator - because he was undertaking other duties. The claimant was not subjected to any less favourable treatment. On, or about, 11th May 2020, the Claimant received Darren May’s witness statement, which he produced as part of the grievance process, in which Mr May suggested that the Claimant’s sickness was not genuine and he (and the others) should be “sacked” by the Respondent

[258]The Tribunal noted the context of Mr May’s comment, responding to the claimant’s grievance, which contained allegations against Mr May and the claimant’s treatment when working on Reception (where Mr May mainly worked). Also, the claimant had made allegations against Mr May, that he was not supported on reception, that Mr May’s treatment of him was “brutal”; that Mr May was always rude and instigated other members of staff against him.

[259]We concluded that Mr May had real concerns about the claimant’s sickness record and its effect on the station; he also had concerns about other staff members’ sickness record. The claimant contends that these concerns were based on the claimant’s, and the others, race. We rejected that. We concluded that the concerns of Mr May were genuine; they were similar to the views expressed by Mr Medhurst in his 31 May 2018 email, again critical of those who he perceived to be abusing the sick leave system. We concluded that this view was genuinely held by Mr May.

[260]We concluded that a similar view would be expressed by Mr May against a white comparator CSA who had a similar level and pattern of sickness absence, who he felt was abusing the system and who had also made significant complaints against him. This treatment was no on grounds of the claimant’s race. On 26th September 2019, when the Claimant made a formal complaint to Darren Williams, Station Manager, he had to wait until 11th December 2019 before the investigation into the complaint commenced

[261]As set out above, the complaint was made on 4 October 2019, and the claimant had to wait until 11 December 2019 before the grievance meeting. Mr Williams statement explains some of the delay as being because they had to allocate a hearing manager from outside Victoria, the claimant’s request. In advance of their meeting, Ms Morgan wrote to the claimant setting out her understanding of the grievance complaints, and the claimant responded. Again in advance of the meeting, Ms Morgan sent a further letter setting out the revised complaints.

[262]There was no evidence of how Ms Morgan was appointed, whether there was any difficulty securing a manager to hear the grievance. We accepted that it may take some weeks to find a manager outside of Victoria who had the availability to deal with a complicated grievance, and then there would need to be some time to get to grips with the issues the claimant was raising.

[263]We concluded that this delay was because – as stated by Mr Williams – it took a while to get a manager who had the capacity to deal with the grievance. Ms Morgan then spent some time reading into what were complex allegations. Then there was correspondence, the aim of which was to ensure Ms Morgan understood what the grievance complaints were.

[264]We concluded that the same would have occurred with a white comparator who had put in a wide ranging grievance – time was needed to allocate a manager, and time was then required to read in. The claimant was not treated differently. Darren Williams emailed the Claimant on 12th February 2020 and informed him that he was not allowed to contact anyone from the station

[265]We noted the reason given by Mr Williams for this: that there was an investigation, people were being interviewed, and that he would be the best person to manage the claimant’s requests. We accepted that this was the reason for Mr Williams making this request.

[266]We again asked – how would a white comparator who had put in a wide ranging grievance and who was off work on health grounds have been treated? We accepted that this would not be a common practice when a grievance had been submitted – it would be more common where there was a disciplinary issue.

[267]However, we concluded that this would have been the approach taken with any member of staff who had submitted a grievance which involved many colleagues. There was an investigation ongoing, and we accepted that it was important to protect the integrity of this process. We concluded that Mr Williams email of 20 February, stating that the proper management of the process was the reason for this request, was the actual reason, and that this email would have been sent to a white hypothetical comparator who had submitted a wide-ranging grievance. There was no difference in treatment. On, or about, 4th March 2020, the Claimant sent Darren Williams an email in which the Claimant made a complaint about not getting bereavement leave. Darren Williams ignored the email and failed to acknowledge it

[268]In his evidence Mr Williams accepted that he had not responded to this email; he pointed out that he had responded to another email from the claimant shortly after. He accepted that he had missed this email, that he should have responded.

[269]We accepted this evidence. We did not accept that Mr Williams would have responded to an email from a white hypothetical comparator if the same sequence of events had occurred. He would have just missed that email. If the Respondent has subjected the Claimant to this treatment as alleged, has it treated him less favourably than it treated or would have treated an actual or hypothetical comparator who does not share the Claimant's race?

[270]We have found that the claimant was not treated less favourably than it would have treated or did treat an actual or hypothetical comparator. Accordingly the claim of direct race discrimination fails. Discrimination Arising from Disability

[271]Did the following conduct occur, and if so was it unfavourable treatment? If yes, was the treatment because of something arising in consequences of the claimant’s disability - his periods of absence; and his limitations in his ability to undertake physical work? Adrian Gogay took a fraudulent witness statement from a cleaner regarding an allegation that the Claimant left papers lying around the station. The cleaner could not read or write English very well and therefore the Claimant contends that the statement was fraudulent

[272]The test is unfavourable treatment. We accepted that taking this statement was unfavourable, as it led to disciplinary allegations. However, the claim is predicated on the statement being fraudulent as well as being unfavourable.

[273]For the reasons set out above, we concluded that it was not fraudulent, it was taken appropriately, no pressure was put on the cleaner, and the answers she gave were accurately recorded.

[274]Based on the fact that it was unfavourable treatment, we next considered whether the statement was taken because of something arising from his disability - i.e. his sickness absences and/or limitations on the claimant’s ability to do his

[275]We concluded that this statement was not taken because of the claimant’s sickness absence and limitations on his ability to do his role. It was taken for the reasons set out above - namely to ascertain who had left 3 letters in/around the SSM kitchen and the SM’s office. The claimant’s sickness absence and limitations on his role (such as they existed in 2014) had no bearing whatsoever on the decision to take this statement. The Claimant was unfairly suspended on 7th January 2014

[276]Suspension is clearly unfavourable treatment.

[277]Was the claimant suspended because he had taken sickness absence and/or because of limitations he had in his role? Again, we concluded that in no way whatsoever were these the reasons for his suspension.

[278]The sole reason the claimant was suspended was because the respondent reasonably believed, having consulted with HR, that the evidence suggested that the claimant may be involved in the letters, there were good reasons to suspend the claimant, not least because (if he were guilty of the allegations) he may attempt to interfere in the investigation and (whether or not he was guilty) because of the strength of feeling amongst staff, plus the perception that the claimant may have been involved. Jacki Priest completed an unfair investigation from 6th January 2014 to 27th April 2014

[279]The view at the dismissal appeal was that the dismissal was unfair, that there were flaws in the investigation. We concluded that any investigation which recommends a disciplinary hearing is unfavourable treatment.

[280]We considered whether this investigation – whether fair or unfair – was because of the claimant’s absences or limitations on his role? We concluded not. The investigation was solely concerned with the merits of the allegations, and whether or not the claimant had left those letters. A criticism could be made that while there was evidence which suggested the claimant may have been involved, there appears to have been little attempt to consider alternative explanations: while the evidence seemed to point to the claimant, was there any significant attempt to consider whether there was another source of the letters?

[281]But there is a very big difference between being able to criticise the investigation, and the claimant’s case, which is that the investigation was handled the way it was because of the claimant’s absence and his work limitations. We concluded that the investigation went the way it did was because the initial evidence collected seemed to suggest that the claimant may have been involved; that there was evidence which suggested that the claimant had misled managers over emails sent from his computer.

[282]We therefore concluded that the claimant’s sickness absences and his limitations undertaking his role had nothing whatsoever to do with this investigation or its outcome. The Claimant’s was dismissed by Lydia Fenny on 25th June 2014 (based on Jacki Priest’s investigation) before the dismissal was revoked on November 2015

[283]Dismissal is self-evidently unfavourable treatment. Was it because of the claimant’s absences and limitations to do his role? We concluded not – for the reasons set out above, the reason the claimant was dismissed was because the dismissing manager genuinely believed that he had committed the acts of misconduct. This was nothing to do with his absences and the limitations on his On 30 October 2017 and in meetings during 2018 and 2019 the claimant was told that because of his absences DW was not willing to allow him to develop into the SM role, or attend training courses. The claimant contends that Ms Priest had an unofficial decision making role in determining who progressed

[284]The failure to allow the claimant to develop into the SM role was unfavourable treatment.

[285]This treatment was also on the ground that the claimant had taken sickness absences. We deal with the respondent’s defence to this claim below. On, or about, 12th March 2018, the Claimant asked Andreea Aursulesi for feedback on him but she refused to give it to him saying that she was unable to because they had only worked together for one or two shifts

[286]We doubted that this was unfavourable treatment. While there is a negative response, it was a reasonable response, Ms Aursulesi could not have provided feedback based on two shifts. A reasonable response to what was in effect an unreasonable request cannot amount to unfavourable treatment.

[287]If this was unfavourable treatment, we asked whether this treatment was because of the claimant’s absences or limitation on his role. The answer is no – that these factors had nothing to do with the decision not to give feedback. The reason the feedback was not given was because Ms Aursulesi did not feel able to do so, as she had not worked with the claimant long enough to form an opinion. On, or about, 30th March 2018, Andreea Aursulesi shouted at the Claimant to “stop behaving like a child”, in front other members of staff during a briefing, when the Claimant was being bullied by agency staff who accused him of stealing a radio

[288]Being told off and told not to behave like a child is clearly unfavourable treatment.

[289]However, we concluded that this comment and the conversation as a whole was not because of the claimant’s time off or limitations on the role; it was because the claimant had an argument with an agency member of staff, and then was angry towards Ms Aursulesi. On 4th February 2020 Andreea Aursulesi sent an email to Wesley Morgan, in which she mentioned that the Claimant and the agency staff member accused each other of theft. This amounted to a false allegation of theft by Andreea Aursulesi against the Claimant

[290]This was not an accusation of theft, for the reason above, it was simply relating the conversation that had occurred.

[291]In any event, this comment was made not because of the claimant’s absences or limitation on his role, it was because Ms Aursulesi was relaying what had occurred and been said. On, or about, 31st March 2018, Ms Aursulesi told the Claimant to push a customer in a wheelchair

[292]We considered first whether this was unfavourable treatment. On the one hand it is part of the claimant’s role, and asking someone to do part of their hob is not unfavourable treatment. On the other hand, when he said that he could not do so, this was accepted, and Ms Aursulesi asked him to find another member of staff to do the role. We concluded that a simple request to which the claimant responded he could not do so, and where this explanation was readily accepted, cannot amount to unfavourable treatment.

[293]If we are wrong on this point, we next considered whether this request to push a wheelchair was for a reason connected to his disability – time off work and limitation on his role. We concluded that it was not: the reason for the request was because a passenger needed wheelchair assistance, and this was a part of the claimant’s role, particularly if there was no other member of staff available to do this role. There was no adjustment in place saying he could not push wheelchairs. In an email dated on, or about, 31st March 2018, to John Ward, Andreea Aursulesi stated about the Claimant that “I believe he can get quite angry sometimes and get disrespectful to anyone around him, including management”. The Claimant raised his concerns to John Ward about this email on, or about, 1st April 2018 but he was ignored

[294]This was an unfavourable comment; it was also, we concluded a remark which accurately summed up what had occurred in the meeting Ms Aursulesi had with the claimant.

[295]Again, this was no way connected to the fact that the claimant had taken time of work and/or had limitations on his role – it was simply an account of what had occurred. Jacki Priest referred the Claimant to Occupational Health (‘OH’) without his consent. Jacki Priest’s purpose in making the referral was to try and get the Claimant redeployed

[296]As stated above, the claimant was not referred to OH without his consent; and the purpose was not to get the claimant redeployed. This allegation therefore fails on its facts. On 29th May 2019, after the Claimant had been referred to OH by Jacki Priest, she spoke with the OH doctor before his appointment without the Claimant’s consent

[297]As stated above, we concluded that Ms Priest did inform the claimant that she was going to speak to the OH Doctor, and the reasons why – that there were complex work and health issues and she wanted to outline to the Dr what these were. The claimant did not say that she should not, or otherwise query why she was doing so. Accordingly, on the facts, this claim fails as the claimant did not object to her speaking to the Dr after she said that she was doing so.

[298]In any event, this was not unfavourable treatment. Ms Priest wanted to ensure that the Dr had all of the facts of what was a complex situation with the claimant’s health. On 12th June 2019 the Claimant called an ambulance for himself as he was unwell. Jacki Priest did not show a duty of care towards the Claimant in that she left him alone to drag himself to the hospital

[299]The claimant did not call an ambulance, Ms Priest did. The claimant was asked to take a taxi to hospital; while Ms Priest had stayed with the claimant when he was ill, she did not accompany him.

[300]We concluded that this was not unfavourable treatment. There was no medical emergency, there was no need for anyone to accompany him to the hospital, and so it cannot be unfavourable treatment not to accompany him. And, in fact, the claimant did not attend hospital. On, or about, 4th March 2020 the Claimant sent Darren Williams an email in which the Claimant made a complaint about not getting bereavement leave. Darren Williams ignored the email and failed to acknowledge it

[301]We did not accept that Mr Williams ignored the email – in fact it was overlooked. We accept that this can amount to unfavourable treatment, even if it was ignored inadvertently.

[302]However, ignoring the email was not connected to the fact that the claimant had taken sick leave and/or needed restrictions to his role. It was ignored because it was overlooked. When the Claimant made a formal complaint to Darren Williams, Station Manager, 26th September 2019 he had to wait until 11th December 2019 before the investigation into the complaint commenced

[303]There was a delay between 4 October and 11 December, for the reasons set out above. We accepted that this was unfavourable treatment.

[304]However, it was in no way connected to the fact that the claimant had taken sick leave and / or because he had limitations on his role. It was because it was a complex grievance, the claimant had asked for the grievance manager to be based outside Victoria, it took some time to get a manager to deal with it, and this manager then did some reading in and corresponded with the claimant prior to the 11 December 2019 meeting. Darren Williams emailed the Claimant on 12th February 2020 and informed him that he was not allowed to contact anyone to contact anyone from the station

[305]This was unfavourable treatment. It was not connected to the fact of the claimant’s sickness absence or limitations on his role – it was because it was a complex grievance involving many members of staff, it was a live investigation, and Mr Williams wanted to be the first point of contact for any work related contact. Was the treatment, if proven, a proportionate means of achieving a legitimate aim?

[306]The one allegation which amounts to unfavourable treatment for a reason connected to his disability is the failure to allow the claimant to progress to SSM shadowing/training.

[307]The respondent argues its legitimate aim is that the SSM role involves an operational need to ensure its business operations run smoothly. We accepted that this was a legitimate aim.

[308]Was it proportionate not to allow the claimant to undertake the training? We accepted that this response was proportionate.

[309]We accepted that the SSM role is a highly stressful position of responsibility. We accepted that managers are required to make an assessment as to whether any CSA has the capability to undertake this role before they shadow. The claimant had high levels of absence, and he clearly suffered quite significant stress at work, including over incidents which were relatively trivial, such as an argument with the agency staff member. He was often on lengthy phased returns.

[310]The claimant accepted at each appraisal that he needed to show consistent attendance to be given the opportunity to shadow.

[311]We accepted that managers were looking for a high level of consistent attendance, and showing that they were ready to step up. The claimant’s attendance from 2015 to the date of the claim was never good enough to allow him to progress to shadowing for the SSM role.

[312]We therefore concluded that the failure to allow the claimant to shadow was solely based on his absence record and lengthy phased returns; given the highly stressful nature of the SSM role and the need for reliable attendance in this role we accepted that it was proportionate not to allow the claimant to step up in this role given these factors.

[313]In saying this, we did not accept that the process to shadow and progress to SSM was adequately laid out: this does not however affect the proportionality of the decision not to allow the claimant to progress. Harassment Did the Respondent engage in the following unwanted conduct? On 1st May 2018 Robert Medhurst disclosed the Claimant’s sensitive medical information, relating to his back pain, in an open email, suggesting that the Claimant’s back pain was not genuine. Robert Medhurst was trying to create a group of people that were targeting the Claimant.

[314]We noted that the email did not disclose sensitive medical information related to the claimant. But the email was angry in tone, and the refence to sickness absences was aimed at the claimant, as well as other members of staff. We accepted that the email appeared to suggest that the claimant’s absence was not genuine. We did not accept that the purpose of this email was to try to create a group targeting the claimant. It was instead an angry response to the claimant’s email. Did this conduct relate to the Claimant’s disability?

[315]We accepted that the negative reference to sickness absence in this email did relate to the claimant’s disability, as some of his absences were disability-related. Did the conduct have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

[316]We did not consider that the purpose of this email was to create an intimidating hostile, degrading, humiliating of offensive environment for the claimant. It was written in anger in response to the claimant’s email complaining about the changed shift pattern. Mr Medhurst was clearly very frustrated – as he pointed out he has seen the situation from both sides, CSA and management, and he was demonstrating in this email how difficult it was when staff had significant sickness absence.

[317]We did conclude that this had the effect. The claimant raised concerns immediately on receipt of this email, complaining that it made him feel stressed. Unfortunately his manager effectively dismissed his concerns, saying that there was a lot of truth in what Mr Medhurst had said. This, we found, compounded his stress. He then went off work sick. We consider that this email was hostile towards the claimant, making direct reference to him, that it was humiliating and intimidating for the claimant to receive this email.

[318]We also considered that in all the circumstances it was reasonable for the conduct to have this effect. The respondent’s defence is that this is a blunt, but true, email. But it was directed at the claimant, while also saying that others also took advantage of the sick leave system. The language was abusive about the claimant’s sicknesses absences, theatre was an analogy between these and ‘cancer’. We did accept that this was the genuinely held view of Mr Medhurst of the negative effect of staff absences on Victoria Station’s operations.

[319]We took into account that at this time the claimant believed, in our strong view wrongly, that he was being targeted for dismissal. We accepted that this perception may have affected the claimant’s view of the incidents, an issue which goes to the reasonableness of the claimant’s view. We concluded that even without these perceptions, this email would still have had a humiliating and intimidating effect on the claimant, as it would on any other employee. Time

[320]The one claim to succeed is that of disability-related harassment, a single act which occurred in May 2018. This is out of time. We concluded that it was just and equitable to extend time for the following reasons:a. We accepted that the claimant had received legal advice and was aware of the time limits for a claim

b. The claimant was clearly of the growing and continuing view that there were lots of acts of discrimination, that this was continuing

c. He was concerned about costs, and he had been told he would not have proof for his claims

d. We accepted that there was minimal disadvantage to the respondent in dealing with this claim. The events were clearly recollected, this was an email which had little ambiguity, and Mr Medhurst and the claimant gave clear views as to their recollection.

e. By contract, there was substantial disadvantage to the claimant; this was we felt a clear act of harassment (albeit unintentionally so) and we considered it would not be just and equitable to deny the claimant this part of his claim.

[321]Importantly, we were also of the view that the claimant had some grounds to suspect that his failure to progress was part of a wider failure to progress CSMs of Pakistani origin. We have commented on the system of progression in operation, one which has given rise to a perception of unfairness and favouritism.

[322]We have also given our conclusions as to why, in the claimant’s case, this did not amount to race (or disability related) discrimination. However given the facts, it was reasonable for the claimant to believe that this was continuing discrimination, and we took this into account in determining to extend time.

Remedy

[323]We did not hear any evidence on remedy. It is our provisional view, based on the evidence we saw and heard, as follows:a. the claimant has not suffered a loss of earnings as a consequence of the act of harassment as found. to the extent that the claimant took sickness absence as a direct consequence, we considered that based on the claimant’s sickness record, he would have had a similar level of absence at or around this time in any event.

b. The claimant is entitled to an injury to feelings award for the harassment he experienced. In our judgment neither the medical records nor the claimant’s evidence show a substantial and long-term effect on the claimant of this particular incident. We accepted that this caused the claimant real concern, and added to his perceptions that some managers wanted him sacked. But as we have pointed out above, this was not a reasonable perception.

c. Our preliminary view, based on all the evidence we have heard, is that an award in the mid-range of the lower Vento band will be a likely award at remedy.

[324]We hope that this indication will be enough for the parties to reach agreement on a way forward and settlement on remedy. If this is not possible, the parties are asked to write to the Tribunal within 42 days of the date of this judgment with dates to avoid for a remedy hearing.

[325]I would like to apologise for the late delivery of this judgment; caused by ill-health last year.