P Craete v Atalian Servest Security Ltd and OCS Security Ltd: 2201212/2023 and others
EMPLOYMENT TRIBUNALS
Case No 2201212/2023
Between
P CraeteClaimantAtalian Servest Security Ltd and OCS Security LtdRespondent
Before
Employment Judge AdkinDate 30 May 2024
JUDGMENT
(1) At the times material to the present claim (on or around 20 September 2022) the Claimant was a disabled person as defined by section 6 Equality Act 2010 by reason of depression.
REASONS
[1]Today’s hearing was to determine the question of disability under s.6 of the Equality Act 2010 read together with Schedule 1 of the Equality Act. Evidence[2]I had the benefit of a combined bundle of documents of 393 pages which included witnesses statements from the Claimant’s witnesses, and two impact statements from the Claimant. The first impact statement was dated 30 April - 1 - 2023 and the second of which was dated 10 January 2024. The Claimant was relying on the second of those two documents but both documents were in evidence and Respondent’s Counsel cross examined on the content of both statements.[3]The time material for the question of disability was the 20 September 2022 which is the date relevant for the claim of failure to make reasonable adjustments.[4]I have made no finding as to the Respondent’s actual or constructive knowledge of the Claimant’s disability nor the Respondent’s actual or constructive knowledge of substantial disadvantage said to be suffered by the Claimant as a disabled person. Those are matters to be determined at a final hearing. Background of employment and claims[5]The Claimant commenced employment as a Security Guard on 17 October 2017 and his employment terminated on 28 July 2023 on the basis of gross misconduct alleged by the Respondent.[6]The first claim which is 2201212/2023 was presented to the Tribunal on 7 February 2023. That claim included a complaint of disability discrimination, and included the following wording in box 12 “disability”: I am an individual who is struggling with depression and anxiety, and I feel it is imperative that I have someone by my side during the proceedings. Having a friendly and familiar face in room with me will help me to feel more relaxed and ease, especially in the event that I experience anxiety during the hearing. I understand that this may seem like a small... [incomplete][7]In a document entitled “legal basis for the claim” undated but provided on 22 March 2023 the Claimant included the following particulars of his complaint: Section 20 of the Equality Act 2010 The Respondent discriminated against the Claimant. … On 16th September 2019, I informed the company of my struggle with a mental illness and this information was documented in my personnel file. On 5th February 2020, Martin Harre, the Company Director, addressed a grievance and protected disclosure I raised. He acknowledged the impact my mental illness had on me and promised to approve reasonable adjustments to enable me to carry out my duties in a safe manner. These adjustments never - 2 - materialized and I continued my duties without the adjustments I needed so much.[8]Also in that document he set out the basis of his claim under section 20 which related to the Respondent’s denial of his request to be accompanied to a factfinding meeting on 20 September 2022 which was set up to investigate allegations of misconduct[9]The second claim 2209987/2023 was presented on 5 June 2023. The substance of that claim was substantially about victimisation under section 27 of the Equality Act 2010. Similar wording was included in box 12 of that claim about having anxiety and depression requesting a companion as a coping mechanism to manage symptoms. Chronology relevant to question of disability[10]I have highlighted key terms below such as depression, low mood and anxiety in bold for ease of reference. I have attempted to replicate typographic errors in the medical notes without correcting them. Childhood[11]The Claimant gives quite a long narrative in his second impact statement beginning on page 263 of the agreed bundle in which he describes how mental health matters were stigmatised in Romania, where he grew up. That background is provided by way of an explanation as to why he says it took him some time to seek treatment.[12]I accept in general terms that the Claimant did feel that there was a stigma relating to mental health matters and that he delayed seeking treatment.[13]The Claimant saw his GP on 10 November 2017 to talk about mental health and he said that he had been depressed for about a month, this is corroborated by his GP record in which he says he is very active, his diet is good, he was feeling low for one month, denied any thoughts of suicide or self-harm and wants counselling. The diagnosis recorded by the GP is depression NOS (not otherwise specified).[14]At that stage the Claimant was prescribed Sertraline the anti-depressant 50mg tablet to be taken one each day. He was prescribed 28 tablets at that stage.[15]He was seen again by the GP on 8 February 2018 at which point the GP recorded as follows: depressive episode he is on Sertraline with low mood but stable on medication – no red flags for suicidal intent – want to taper down - 3 - medication and taking every other day – advise to review in 2/52 [i.e two months’ time].[16]The Claimant had a concern about becoming addicted to anti-depressants and did not follow the advice he was given about dosages tending to take less than the doctor had suggested.[17]The Claimant says that at this time he found his condition made it difficult for him to integrate into social settings and he preferred solitude. He also says that he felt self-conscious that something was wrong with him and that everyone would notice it, he says that his low mood and depressive state had a negative effect on his self-esteem and motivation. He said he was lethargic and would have long periods without sleep and then would crash exhausted after depriving himself of sleep. He says it had complications and affected his relationship with his partner and made it harder to access the help that he needed.[18]By 16 March 2018 the Claimant saw his GP again and the medical notes record depression, medication review, not on anti-depressants anymore and happy about this. It then says he is well and has engaged well with MHT which I take to be mental health therapy and services and happy with the treatment he has had.[19]There is then no reference in the GP record at all for approximately nine months until 12 February 2019 when the Claimant reported being sprayed with CS gas at petrol station three days earlier. He reported blurred vision and there is a document attached to that where he was referred to talking therapy as requested and an information leaflet relating to talking therapy was provided. I find that the proposed treatment at that stage was mostly likely in relation to the sequences of a traumatic attack rather than treating spontaneously occurring depression.[20]The Claimant very unluckily was subject to another assault on 7 March 2019 which lead to him reporting blurry vision and the fact that his sister had driven him to A&E.[21]There is then a gap in the medical records for nearly seven months.[22]On 11 September 2019 the Claimant went to see his GP suffering from depression and the note records: suffer from depression feels low not motivated when waking in the morning not feeling happy was on anti deprsant before but not helped security manager the work made him depressed - 4 - not willing to have tablets, wants something different declined in his depression since February having an attack in February would prefer someone to talk not suicidal and socialising referred to talking therapy[23]On 16 September 2019 the Claimant wrote to Alasdair Nicol, a Senior HR advisor at the Respondent as follows: I have taken a long time to come to this decision, but I believe is for the best for everyone: I found the courage to come forward about my mental health condition. For me, my mental health has been an ongoing issue ever since 2017 when I was first diagnosed with depression and anxiety. I was on medication for a while, then group therapy as well as other therapies. None of these helped so I tried to get over it by simply ignoring the fact that I am ill. I thought it would simply go away or I could just learn to live with it. I was even hopeful that I may get better someday, but unfortunately, I am still battling alone with this condition that has taken over every single aspect of my life for almost two years now. It was very hard for me indeed to finally accept that I truly have a problem that requires further help. I only recently managed to comprehend the extensive effects derived from my mental illness. I have always thought about myself that I am a strong, independent and intelligent person, that can be fully autonomous, however, I came to realize that I was wrong and I was in a constant battle with myself trying to understand if what I am going through is "normal". I came to the conclusion that nothing is normal about mental health and having to live with it, makes every aspect of life more challenging and frustrating. Having nobody to talk to makes it harder to ask for help and immerses one in a greater deal of stress and prolonged agony. Even though many people are affected by mental health issues and there are multiple campaigns to help people like me coming forward and seek the help we need, there is still a strong social stigma that amplifies the effects of the illness, making it far more difficult for us to recover. I may be wrong here but I still fear of being discriminated at my place of work or even to be dismissed because of my illness and I wish to be normal, but I know I am not. My personal life was immersed in a bowl of tragic events that changed me forever and made me feel sad. I don't want to go into details about particular aspects that involves sick members of my family, because they have absolutely no guilt for my mental health - 5 - decline and I am not blaming them, however, one thing is for sure: I require support and understanding as these are probably the darkest moments of my life. What made it even worse for me was an incident that happened at work, on the 9th of Feb 2019 when I was attacked by a man in a petrol station whilst filling up the work vehicle. The attack was initiated without provocation simply because I was wearing the HS2 logo. After the attack, I tried to convince myself that it was just an isolated event and I tried to coach myself into believing that I was going to be fine. I wanted to ask for help then but I was too embarrassed to talk to anybody and admit that I needed help following the traumatic experience. The thought that I am always at risk of being attacked and the thought that my life doesn't matter to anyone took over me. I became increasingly obsessed and even paranoid about the incident, to the point where I felt terrified to fill up the car. I had to force myself to do it just to make sure nobody would find out how terrified I was as I thought they will laugh at me. I was never a coward, nor afraid of anything in my entire life, but this illness turned me into someone that I barely recognise as myself. I am not sure if the post-traumatic stress, following the abovementioned event was amplified because of my pre-existing mental health issues, but it made it harder for me to concentrate and function at my full capacity. Following the attack, the attacker was charged and he pleaded guilty in Court, however I was never looking for retribution or punishment for him. I simply wanted to get better. The psychological scars that I was left with, combined with the continuous stress and challenges that I am facing every time at work and in my day to day life made me feel segregated, marginalized and further depressed; this is the reason why I have decided to ask for help to deal with this matter more robustly. I cannot do it alone and at this moment in time, I haven't got anybody to help me with anything and is hard. I feel that everyone wants to put me down and I don't feel that I am supported in any way by nobody. I am sure you can appreciate how hard it is for me to open up and talk about my mental health. I would like you to keep this strictly confidential. I want to continue in my job without interruption, but I do require the Company's support and understanding every step of the way. I know this may come at a bad time because all the proposed changes happening at work, however, I was told that there is never too late or too early to ask for help when it comes to mental - 6 - health. This is the motto that motivated me and gave me the courage to ask for help from the Company now. Regarding my role: I have always fulfilled my duties to the best of my ability and I have never received any complaints or criticism from the Client or my managers. Despite my problems, I still managed to maintain a high level of professionalism and dedication to my job. I do require, however, some adjustments at work which will enable me to continue my mental health treatment and look after my family at the same time. I am simply asking to keep my shift patern on nights until my circumstances will improve. The solution to accommodate this is already to hand and was in force for the past 19 months. Ofcourse I have requested a letter from my GP documenting my mental health condition. This will be made available to you in due course. Please note: Due to my therapy sessions I cannot be contacted between 14:00 and 16:00 when I'm working the previous night, and between 09:00 and 12:00 when I'm off the previous night. I apologise in advance if I cannot be contacted between the aforementioned time frames. [emphasis added][24]That was the first reference to anxiety in contemporaneous documents. This is not a medical document and is written in the Claimant’s own words.[25]The following month on 4 October 2019 the Claimant again attended his GP surgery and what is recorded is LOW MOOD history on going issues with low mood, pt [patient] says ongoing for 1 years. no obvious cause or reason having talking therapies, but wants to move to the next step of management has had Sertraline before unsure if worked at the time, keen to try alternative denies any thought or self-harm/suicidal ideation working in security, denies any drugs, minimal ETOH [reference to drinking alcohol] has family support - 7 -[26]The next entry in the GP record is on 21 December 2019 where the Claimant again discusses low mood and is prescribed Sertraline, 50mg tablets, half a tablet a day to begin with, work up to one per day, 28 tablets.[27]The note contains: ongoing issues with low mood – Citalopram not working at all and worried about developing an allergy to it as had sore throat and rash after taking it recently. Still feels low, sleeping better, no DSH/suicidal ideation, no drugs and minimal ETOH.[28]In an investigation meeting as part of a grievance heard on 23 January 2020 by Martin Harre, Operations Director at the Respondent, the Claimant told him that he had been diagnosed with a mental-health condition, and mentioned anxiety. He mentioned having had a severe reaction to a change in medication in October 2019 he said “I passed out, I had an anaphylactic shock (similar to a reaction to nuts). I raised the issue on handover reports, on 24/11/2019 (am), and 2/12/2019 (am) – I called NHS for emergency assistance (2/12).”[29]He explained that the circumstances were that he was driving and he felt sick and pulled over. He said he called the NHS and explain the symptoms and took the advice to take a rest.[30]He confirmed that the medications changed back (to the previously prescribed antidepressant sertraline) on 21/12/19. He said that now the medication had been changed back he felt okay.[31]A couple of weeks later there was an outcome to the Claimant’s grievance from Mr Harre by a letter dated 5 February 2020. He upheld the Claimant’s grievance. Of relevance to the question of disability he wrote as follows under the heading “Wellbeing”: “You demonstrated that you have been and currently are suffering from anxiety and depression and this is being treated by medication and therapy. There was also a period between October and December whereby your medication was changed. The new medication caused physical side effects causing you to black out at work on the 24th November and again on the 2nd December, 2019. While the physical side effects are no longer an issue due to the change back to your original medication, and you explained that - 8 - you do not feel that any adjustments need to be made at this time to help you with your medical condition”[32]The next entry in the GP record is on 10 July 2020 when there was a telephone consultation (this is now the time of the Covid-19 pandemic). The record has: history: patient takes Sertraline half a tablet prn, feels like he will become dependent on the medication and does not want that, wants to know if “training supplement” such as L-Arginine and LCitrulline” have an effect on Sertraline, few days ago started feeling low due to thought of the passing away of some family members, retsrated Sertraline half tablet daily. No self-harm/suicidal thoughs, no change to appettie, no sleep disturbance, motivated enough to go to work as Security Manager (sic)[33]“prn” means "when necessary" (from the Latin "pro re nata"), indicating as I understand it that the Claimant was taking the medication on an ad hoc basis rather than strictly and regularly as prescribed by the GP.[34]There is an entry on 22 June which seems somewhat similar Claimant asking to know if a performance supplement affected Sertraline tablets and Advise the patient as long as the product only contains L-arginine and L-citrilling no infortamtion (sic) to state the affect sertraline in anyway Explained to the patient hos setraline tablets were sent to the pharmacy of his choice on the 11/6/2020 patient was not sure it was there will pick medication and restat r/v any concerns/new or worsen symptoms[35]That appears to be the last entry explicitly relating to the Claimant’s mental health in the GP record. There are other later items in the record e.g. automatic system items relating to text messages, Covid vaccination and the like.[36]In May 2021 the Claimant applied to HSBC for critical illness cover. In that application form he provided the following information: “Have you ever sought medical advice or received treatment for: - 9 - A mental health disorder, including anxiety or depression, that has required time off from work, hospital treatment or referral to a psychiatrist? [Answer:] Yes Additional Information: anxiety and depression in the past but never taken time off work. Had medication and theropy since 2017. Hasnt taken medication for the last few months.[37]Of relevance to the Claimant’s disputed alleged application for a shotgun licence are the following entries in the GP record.[38]There is an entry in the GP record on 17 December 2021 where it says administration: patient spoke to Yvonne re: police document – please confirm charge with Dr AA – only last page needs to be filled in by Dr AA.[39]On 18 November 2022 the GP record says “PAID £40 for private form on 18.11.2022. Taken by Haffizah [Ms Haafizah Ahmed].[40]The final relevant entry is on 23 December 2022, it says there is a comment put in by Dr Anthony Annan – “Has applied for firearms certificate form completed and signed.” Shotgun license application[41]There was an energetic dispute between the parties about the details of whether the Claimant did or did not apply for a shotgun licence in approximately November or December 2022 or thereabouts. Respondent’s application for specific disclosure[42]The Respondent made an application for an order for specific disclosure of the Claimant’s application for the grant or renewal of a firearm and/or shot gun certificate, initially in correspondence and developed by counsel in the hearing before me.[43]The Claimant and his representative firmly opposed this application. By an email dated 2 January 2024 the Claimant confirmed that he had abandoned plans to apply for a shotgun licence in December 2022 and had never made an application so there was nothing to disclose.[44]I think it possible that the parties may have been talking at cross purposes in relation to disclosure. The Claimant was (I think) asserting that he had never put an application in to the relevant authority. The Respondent it seems to me - 10 - was understandably interested in the document submitted to the GP for his input.[45]I refused the Respondent’s application to make an Order for disclosure of that document because it seemed to me likely that that would mean the adjournment of this hearing which was not proportionate nor in the interests of justice that there be a delay, when the question of the content of the shotgun license application was in my judgment a somewhat peripheral matter.[46]I did in making that decision tell the Claimant in the hearing that an inference might be drawn by his failure to disclose the document provided to the GP and gave him the opportunity to disclose it voluntarily. No such voluntary disclosure was made. Evidence on shotgun license application[47]During the course of his oral evidence, later on in the hearing, the Claimant was adamant that he had never applied for a shot gun licence at all and on more one occasion likened this to his desire to climb Mount Everest, by which he explained he meant that it was some sort of unrealised dream which he had thought about but not taken any steps to make happen. He said that this was in view of his mental health based on advice that he had received at a clay pigeon shooting club at which he had become an enthusiastic member and that he decided not to proceed with this application to get a shot gun licence. He said it was his mental health and also other costs such as needing a gun cabinet and the application fee that put him off.[48]The Claimant says that he does not remember paying £40 to the GP and is adamant that there is an inaccuracy in the record. He suggested that he has or at least he will raise this with the GP.[49]My finding on the balance of probabilities is that the Claimant did pay £40 as is recorded in the GP record on 18 November 2022 where it says PAID £40 for private form on 18.11.22 taken by Haafizah and that is a reference to Ms Haafizah Armed who appears to be one of the administrative staff.[50]I find as a fact that the GP did complete a form relating to an application for a shotgun licence on or around 23 December 2022 as per the record and this was scanned on 28 December 2022 as per the record on page 227 of the agreed bundle. Content of shotgun application form[51]There is at page 191 in the agreed bundle a template of the application for grant or removal of a firearm and/or shot gun. I have considered that document and that there is a requirement for a GP to sign it off and that the form itself contains various requirements so for example, it directs the applicant “I understand that I am expected to notify the police if I am diagnosed with or treated for a medical condition listed in note 5 while the certificate remains valid”. - 11 -[52]Note 5 which is at page 204 includes depression or anxiety.[53]Depression and anxiety is what it is that the Claimant is saying that he had at the material time in September 2022 i.e. only two months before the Claimant paid £40 for this form to be completed. Conclusion on shotgun application[54]It is unsatisfactory that the Tribunal does not have the shotgun licence application form submitted to the GP.[55]While I note that the Claimant says that he did not pursue this matter, there is the fact of the GP record. It seems highly unlikely that the administrative staff in a GP practice would record that the Claimant had paid £40 if he had not and again unlikely that the record would reflect that the GP filled in the form if he had not. The Claimant admits that he had an interest in having a shotgun licence. The only real dispute is how far he got in the application process[56]It is difficult to determine precisely what happened. I can only deal with this on the balance of probabilities. On the balance of probabilities I find that the Claimant did initiate the process of getting his GP to complete documentation to support his application for a shotgun licence. The GP record speaks for itself and I consider the possibility that this is all an administrative mistake is unlikely.[57]I do accept what the Claimant told me more than once in the hearing that he decided not to pursue the application for a shotgun license. That was the position he set out in inter-party correspondence in his email dated 2 January 2024.[58]What did the Claimant submit to the GP surgery? It may have been a blank form for the GP to fill in, which the Claimant was going to complete later. The Claimant may have completed the form himself and send it to the GP for the doctor to add his part. On balance I think that latter interpretation is more consistent with the GP’s comment “Has applied” which suggests that this was something that was already in train. Relevance to disputed disability[59]Is there anything on that form which is relevant to the present case?[60]I am alive to the possibility that the Claimant gave less than a full account of his mental health history in the form that he submitted to GP. The reasons are first, the Claimant is an intelligent person who would understand that if he declared a lengthy history of depression and anxiety that would be likely to cause difficulties in an application for a shotgun licence. There is another words a reason to downplay that mental-health history.[61]Second, the Claimant is adamant that a document should not be disclosed and indeed has gone as far as denying that he ever took any steps to obtain a shotgun licence, a position which in my view the content of GP record - 12 - undermines. He did take steps. He paid £40 to his GP to complete the GP part of the application form. The Claimant would be concerned that disclosing such a document might undermine his contention in this hearing that he had depression and anxiety amounting to disability.[62]While this is all part of the factual matrix I have decided that it is not essential to my reasoning on the disputed matter of disability to attempt to make a detailed and definitive finding. This is primarily because of the length of the GP record which stretched back four years before the shotgun application was submitted to the GP. Even if the Claimant had said nothing about his mental health in the shotgun application that would still leave the earlier GP record. Evidence of Claimant’s supporting witnesses[63]The Claimant called evidence from various former colleagues.[64]First was Mr Hillary Ndoke who gave evidence that the Claimant had behaved sometimes in a volatile way and that he had told him that he had had treatment for depression but that 70% of the time he considered he was fit for work. He said that there was abnormal behaviour, he was sometimes agitated, angry and that there were mental issues.[65]The next witness was Mr Vitali Grimalo who worked with the Claimant until March 2022 from December 2017 although he stopped working directly for the Claimant in 2021 and thereafter had less contact although he said that he fairly regularly saw him at lunchtime. He gave evidence that the Claimant was crying about the unfairness of the Respondent’s treatment of him and saying that he was depressed about the environment in which he worked. He says that it was 50-50 whether the Claimant was fit for work in the sense that he said 50% of the time he thought he was and 50% of the time he thought he was not and Mr Grimalo was trying to tell the Claimant that he should relax and have a good tea. Mr Grimalo suggested he formed the impression that the Claimant became more and more depressed.[66]The next witness was Mr Daniel Flynn who was keen to emphasise that he is a mental health first aider who has done a two day course although he acknowledged that that is not a professional medical qualification, he said that he has a personal history from his own personal past some awareness of mental health issues although that was not clear whether that was from family members or for himself personally. He says that after he ceased working with the Claimant which was in December 2021 he has remained in some contact with the Claimant and because they had bonded over some shared experiences and he had checked in on him to see if he was “on an even keel”.[67]The next witness was Mr Stacee-Martin Ellis who also was the Claimant’s lay i.e. voluntary representative who denies that he takes payment from the Claimant or other colleagues who are also suing the same Respondent. He drew on his own experience of a family member with depression and emphasised that sometimes an individual would put on a brave face whereas - 13 - in fact they are suffering from clinical depression. It was his view that the Claimant was depressed. Claimant’s oral evidence[68]The Claimant gave evidence in a thoughtful and apparently credible way in his oral evidence. There was nothing about the way that he presented himself or his demeanour that led me to question what he was saying.[69]The Claimant gave oral evidence in which he denied that his first impact statement had significantly exaggerated or over egged the extent of his disability, he was cross examined on a number of apparent inconsistencies in the documentation but in particular the way that he had described the reactions to an anti-depressant medication Citalopram in his impact statement as being pretty close to life threatening experience whereas in the medical record on 21 December 2019 it says simply this: “Citalopram not working at all and worried about developing an allergy to it as he had a sore throat and a rash after taking it recently”. Claimant’s written evidence[70]In his written evidence the Claimant describes at the bottom of page 246 “the allergic reaction to Citalopram had a severe impact on my physical and mental wellbeing, shaking my confidence in taking medication all together” “The symptoms I experienced after my medication was changed from the Sertraline to Citalopram were alarming severe, I would spontaneously lose consciousness and find myself unable to breath. These episodes culminated in debilitating panic attacks, triggered by the adverse reactions caused by my Citalopram allergy. The experience was harrowing – if felt as though I was dying and it significantly impaired by ability to function normally”.[71]There is a striking contrast between the Claimant’s impact statement on this reaction to a drug and what is recorded in the GP record about it. The contrast between his impact statement page 246-247 of the agreed bundle and the medical record at page 231 of the bundle relating to December 2019 raises a significant question about the credibility of the evidence contained within his first disability impact statement.[72]I bear in mind however that the Claimant described the adverse reaction to Citalopram to Mr Harre of his employer during the grievance in more dramatic terms. - 14 -[73]In the hearing before me the Claimant was only seeking to rely on the second witness statement which is written in rather more muted terms and perhaps is closer to the medical evidence.[74]Some of the first impact statement is not directly relevant to the question of disability since it relates to the treatment by the Respondent of the Claimant. There is a list of 40 “impediments” that the Claimant suffered which he describes as only being a few examples of his disability. There is a list of 20 alleged impacts on day-to-day activities which the Claimant “would have” experienced as he not received treatment. There is also a list of 26 specific ways that the Claimant’s mental health affected him which seem to in large part be criticisms of the Respondent as his former employer. The first two of these lists resemble as being generic checklists of possible symptoms and effects of depression rather than specific symptoms personally suffered by him.[75]There is a list of alleged impacts on the Claimant’s life in the second impact statement beginning at page 268 running through to 274 which does read something like a check list of possible depressive symptoms which I have treated with a certain amount of circumspection in particular because of the inconsistencies regarding Citalopram and the shotgun application. Submissions from the parties[76]The Respondent says that the Claimant’s impact statement is “massively over egged”. Mr Sendall says it’s the worst that he has seen in thirty years of practice and says that it is wholly untrustworthy, riddled with exaggeration, misrepresentation of the position and that the Claimant has failed the evidential burden on him.[77]On the other side of the argument Mr Ellis for the Claimant made submissions in a more anecdotal and less technical way. He pointed out that various people, including celebrities, have downplayed their mental health problems only for these to become dramatically apparent for example in the case of a suicide. Law Where oral evidence and contemporaneous written evidence conflict
Law
[78]I have taken account of the caution urged by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [16]-[22] in relation to memory and witnesses who seem to be confident of the recollection after the event in their oral testimony where this conflicts with contemporaneous written evidence. Disability[79]The Equality Act 2010 contains the following provisions: 6 Disability - 15 -(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. Schedule 1 Long-term effects 2(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[80]Underhill J (President) sitting in the Employment Appeal Tribunal in the case of J v DLA Piper UK LLP 2010 ICR 1052 (UKEAT/0263/09/RN) gave some guidance on the question of disability: 40. Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin v Patent Office [1999] ICR 302 .(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.(3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above. In particular, we do not regard the Ripon College and McNicol cases as having been undermined by the repeal of paragraph 1(1) of Schedule 1 , and they remain - 16 - authoritative save in so far as they specifically refer to the repealed provisions.[81]In that case guidance was given on cases in which mental-health, particularly depression, is said to amount to a disability: 42. The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at para 33(3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness—or, if you prefer, a mental condition—which is conveniently referred to as “clinical depression” and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or—if the jargon may be forgiven— “adverse life events”. We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians— it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case—and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering “clinical depression” rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived. Conclusion on disability Reliability of Claimant’s written evidence[82]There are three reasons why I feel I cannot simply accept the Claimant’s written account of his alleged disability at face value. - 17 -[83]First is the Claimant’s account of the extent of the effect of his reaction to Citalopram the anti-depressant. It is not obvious to me that this is conscious exaggeration. The GP record may not have captured the full picture. The discrepancy however between the GP record and the Claimant’s written account is so stark that it raises a question about the reliability of his account.[84]Second, I cannot reconcile all of what the Claimant has said about the shotgun license application with the GP record. I think that some of what he said about this was simply wrong. He was plainly in the process of trying to obtain a shotgun licence even if he did not pursue to its conclusion. Again this means I have to approach the reliability of his evidence on this point with degree of caution.[85]Third, much of the evidence about the alleged effect on Claimant’s day to day activities in particular at pages 252-255 and 255-257 lacks specific detail relating to the Claimant’s personal circumstances. Much of it is generic and reads as if it is a synthesis of possible symptoms of depression which leads me to doubt whether much of it is reliable. I do not take it all at face value.[86]There are a whole series of alleged conditions contained in the disability impact statements which are not supported by medical evidence. To take some examples: erectile dysfunction, anxiety in social settings, alcohol abuse, panic attacks and fear of public spaces. The Claimant attended his GP with reasonable frequency. The absence of these matters in the GP record I find is significant. Other evidence[87]I feel I can place more reliance on contemporaneous documentary evidence (i.e. the GP records) than on the content of the disability impact statements which have been prepared for the purpose of this hearing.[88]My conclusion is that between 10 November 2017 and 22 June 2020 which is a period of some two and a half years the Claimant was reporting to his GP symptoms of depression on a series of different occasions. At different stages he been prescribed Citalopram and Sertraline or referred to talking therapies.[89]The Claimant’s supporting witnesses have plainly attended to support him. To that extent they are not independent. While I would not elevate their opinions to the level of medical evidence, there did seem to be a common theme running through their accounts of the Claimant reporting to them that he was depressed. That is consistent with what he was telling his GP on multiple occasions. Impairment[90]I find, in view of the supportive contemporaneous medical evidence that the Claimant was suffering from depression, which was a mental impairment. - 18 -[91]Conversely I am not satisfied that the Claimant has discharged the burden on him to show that he was suffering from anxiety. Anxiety and depression commonly occur together, but it does not follow that this occurs in every case. These are two distinct symptoms.[92]Notwithstanding his references to anxiety in the grievance process, the HSBC application for critical illness cover and in the ET claim forms, these are his descriptions of his condition as a layman. He was not medically trained. There is no reference to anxiety in the GP record. Given the number of times that the Claimant did attend his GP, in the region of eight or nine distinct occasions in relation to depression and given that he described symptoms which were recorded, sometimes with a degree of detail, the lack of reference to anxiety I take to be significant. Substantial adverse effect[93]I accept that the Claimant was suffering from a disturbed sleep pattern and that this was affecting his relationship with his partner. That his sleep disturbed is supported by an entry on 10 November 2017 in the GP record where he had scored 3/3 for sleep disturbance and a further entry on 21 December 2019 “sleeping better”.[94]As to motivation I note the argument put forward by Respondent that the Claimant was sufficiently motivated to go to work. Nevertheless I find that his motivation was affected. The GP record references little interest or pleasure in doing things and feeling tired. There is also a reference to difficulty concentrating which is a distinct but perhaps related symptom.[95]I do not find that the Claimant’s ability to socialise was significantly compromised. The medical evidence suggests that he was still socialising. I accept however that he may have felt at times disinclined to socialise.[96]In terms of the Claimant’s participation in his workplace, I accept the evidence of the Claimant’s former colleagues that he was struggling at work. This was not a specialist task at work, but participation at work in a general sense and simply getting along with colleagues. He was struggling. He was sometimes agitated or angry. This was sufficiently substantial that his colleagues noticed. In my judgment was more than a trivial adverse effect on his participation at work which was a day-to-day activity.[97]For reasons given above do not find that many of the other claimed effects and symptoms in the Claimant’s impact statement have been proven. I have not taken these matters at face value where there is no supporting evidence. Nevertheless I cannot simply discount the Claimant’s medical record. He kept returning to his GP reporting depression and low mood. He was struggling generally and at work as his colleagues noticed. - 19 -[98]Considering the threshold of “substantial”, meaning more than trivial, on balance I find that the effects of depression on the Claimant’s day to day activities were adverse and substantial. Long-term[99]I have considered carefully the guidance of the Employment Appeal Tribunal in the case of J v DLA Piper and considered whether this might be characterised as a temporary reaction to events. There have been events which have been triggering for mental-health difficulties. The Claimant reports being attacked twice. Those alleged assaults occurred in February and March 2019. That does not explain the entire history, however between 10 November 2017 and 22 June 2020.[100]Given the length of time that symptoms were reported, I find that the effect of the impairment was long-term. Albeit that there is not contemporaneous evidence of the Claimant’s mental state in September 2022, there was a likelihood of recurrence. Likely in this context means “could well happen” (SCA v Boyle).
Summary
[101]I find that the Claimant was at the material time a disabled person by reason of depression.[102]I do not find that the Claimant has proven on the balance of abilities that anxiety was an impairment which caused a substantial and long-term adverse effect on his day-to-day activities.
The Facts
[103]On 3 January 2024, Ms Harrop informed the claimant that his appeal would be dealt with by Mr Darren Walker. The claimant asked Ms Harrop to provide him with a complete list of all documents that would be considered on appeal. On 25 January, Ms Harrop sent the list to the claimant. The list itself was 3.5- pages long. The total number of documents ran for over 1,000 pages.[104]On 26 January, the claimant emailed Ms Harrop accusing her of intentionally omitting information and that she was being manipulated by the business. He accused the respondent of orchestrating a ‘web of dishonesty, lies, and deceit’.[105]On 5 April, Mr Darren Walker concluded his review and decided the appeal. He decided that the evidence with respect to the claimant’s participation in the UK Enquiries YouTube channel were circumstantial and therefore no action should be taken in that regard. However, all other allegations were proven, the claimant was guilty of gross misconduct, and summary dismissal was the appropriate sanction. Burden of Proof and Causation[106]Given a rather unusual and counterproductive way the claimant chose to run his claim by refusing to give evidence himself and instead relying on witness evidence of his ex-colleagues, whose evidence we found unreliable and largely irrelevant for the reasons explained above, before turning to the individual complaints in the claim, I shall briefly explain the relevant legal principles concerning the burden of proof and causation we applied in coming to our conclusions on the respective individual complaints.[107]Firstly, unless admitted by the opponent, the burden of proof to establish a particular fact lies on the party that relies on that fact. This means that the party that advances a particular factual case has the burden of establishing the necessary facts supporting that case, if such facts are disputed or not admitted by their opponent.[108]In employment tribunals as in other civil courts, the usual standard of proof is on the ‘balance of probabilities’, i.e. more likely than not.[109]Furthermore, the role of the Tribunal is to examine the evidence presented to it by the parties, and not to seek out evidence, and certainly not to seek to make a case for either side to the dispute.[110]Sometimes it might be a fine line between on the one hand - assisting a litigant in person to give the best evidence they would wish to give to make their case, as the Tribunal is required to do in furtherance of the overriding objective, in particular, to ensure, so far as practicable, that the parties are on an equal footing, and on the other hand - descending into the arena and impermissibly constructing a case for a litigant. However, there is that line and it must not be crossed.[111]As Mr Justice Langstaff (President, as he then was) explained in East of England Ambulance Service NHS Trust v Mrs J Sanders [2015] I.C.R. 293 at [28]: “…. Tribunals were designed to provide swift, informal justice to ensure access to justice with a degree of simplicity that would assist ordinary people, with no particular legal expertise, to vindicate their rights. It is part of the culture of a tribunal that it will become familiar with people who have no legal training and who may find the whole process of going to law distressing and certainly difficult to navigate without having any experienced person to turn to. Inevitably it will seem that they are at a disadvantage when confronted by the legal team instructed by another party. A tribunal, given its origins, has to be sensitive to that. This may, however, lead to a fudging of the boundary which must be kept between that which a tribunal is obliged to do, that which it is not obliged to but can do, and that which it has no right to be doing at all. The proceedings are not inquisitorial…” (underlining added)[112]At [29] he went on to say: “29 Rule 41 [that is Rule 41 of the Employment Tribunals Rules of Procedure which says that the Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective, shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence, and is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts does not, in our view, allow a tribunal to make inquiries on its own behalf into evidence which was never volunteered by either party. The tribunal may, in an appropriate case, ask the parties whether they have thought about particular evidence or even, possibly, whether in an appropriate case the parties or one of them would wish an adjournment in order to obtain it. But it is not, […], for the tribunal itself to investigate the evidence and rely on its own investigations. The tribunal is, as we said at the start of this judgment, to act as the adjudicator not as advocate. Actively seeking fresh evidence on one or other party's behalf is inevitably likely to lead towards the latter.” (underlining added)[113]Further, it is important to note (as I tried to explain to Mr Ellis during the hearing) that the Tribunal must make its decision based on the evidence in front of it, and not by asking itself hypothetical questions, then guessing what answers to such hypothetical questions might be, and treating such hypothetical answers to hypothetical questions as concrete evidence, upon which it could find facts and decide the case.[114]Considering the way the claimant chose to present his case to this Tribunal, the above principles are particularly pertinent, as I was at pains to explain to Mr Ellis from the start and throughout the hearing.[115]When it comes to the discrimination complaints (and for the purposes of this claim, this applies to the complaints of victimisation, failure to make reasonable adjustments and harassment related to disability) the so-called shifting burden of proof applies.[116]S.136 EQA states: “(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.”[117]This means that there are two stages to the burden of proof. First step is for the claimant to establish primary facts from which the tribunal could (as opposed to - definitely would) decide, in the absence any other explanation, that discrimination took place. If the claimant discharges that burden, the evidential burden shifts to the respondent to prove that it did not discriminate against the claimant, meaning that the respondent must prove that the treatment complained of was “in no sense whatsoever” because of the protected characteristic or the alleged protected acts. When considering whether the claimant has met the initial burden of proof, the Tribunal must disregard explanations for the treatment complained of provided by the respondent.[118]In discrimination complaints the putative discriminator who carried out the act complained of must have been motivated by the protected characteristic (or protected act). If he or she is innocent of any discriminatory motivation but has been influenced by information supplied or views expressed by another employee whose motivation is discriminatory, the correct approach is to treat the supply of information or view expressed by the other employee as the discriminatory action. (CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439; [2015] IRLR 562, CA.)[119]When considering what motivated the putative discriminator to treat the claimant in a way complained of, the Tribunal must consider the primary established facts and what permissible inferences can be drawn from such facts, being alive to the fact that it is rare to find direct evidence of discrimination and people might be unconsciously motivated to act in a discriminatory way by their biases, preconceptions, beliefs, attitudes, prejudices and perceptions.[120]Similar burden of proof principles apply in whistleblowing detriment complaints (s.48(2) ERA), as further explained by the EAT in the case of International Petroleum Limited v Osipov and ors EAT 0058/17.[121]The burden of proof lies with the claimant to show the ground or reason (that is more than trivial) for the detrimental treatment to which they were subject is a protected disclosure he made. Under section 48(2) the employer must show why the detrimental treatment was done, if they do not do so, inferences may be drawn against them. Inferences drawn by the Tribunal must be justified by the facts found.[122]Elias J in the case of Fecitt and ors v NHS Manchester (Public Concern at Work intervening) 2012 ICR 372 CA held that section 47B will be infringed if the protected disclosure materially (in the sense of more than trivially) influences the employers’ treatment of the whistle blower.[123]On the question of causation, it must be proved that the wrongdoer knew about the disclosure. When deciding cases of whistleblowing detriment, the Tribunal must focus on the mental process of the decision maker, if the decision maker did not know of the protected disclosure, they cannot be influenced by it.[124]However, with respect to the claims for automatic unfair dismissal under s.103A ERA, that rule will be displaced where a person manipulates the situation with an unlawful motivation, who is higher in seniority than the claimant or who plays a part in the process that leads to the final outcome and thereby procures the detriment via an innocent decision maker, the so-called “Jhuti exception”. Mr Ellis makes several references to it in his opening and closing submissions.[125]However, there is another “however”, which is that in a recent EAT decision in William v Lewisham and Greenwich NHS Trust 2024 EAT 58, Mr Justice Bourne held that the Supreme Court’s decision in Jhuti does not govern causation in whistleblowing detriment claims under S.47B. Instead, the principle established in Malik v Cenkos Securities plc EAT 0100/17, where Mr Justice Choudhury considered that it was impermissible to import the knowledge and motivation of another party to the decision-maker for the purpose of establishing liability under S.47B, must be applied.[126]Moreover, in another recent decision in Nicol v World Travel and Tourism Council and ors 2024 EAT 42, the EAT considered a decision-maker’s knowledge of a protected disclosure in the context of dismissal, holding that where a disclosure was made to one person (A) and then transmitted to the decision-maker (B), B needed to be aware of some of the detail of what the whistleblower had disclosed to A in order for the claim to succeed. The EAT said that according to the structure of the whistleblowing legislation, for employers to be fixed with liability they ought to have some knowledge of what the worker is complaining or expressing concerns about. It is not enough that person B knows that the claimant has made a disclosure to person A.[127]However, yet another “however” is that in even more recent the EAT decision in First Greater Western Ltd v Mr AM Moussa [2024] EAT 82 Mr Justice Kerr did not find particularly persuasive the proposition that the Reynolds reasoning (i.e. the impermissibility to import the knowledge and motivation of another party to the decision-maker for the purpose of establishing liability under S.47B) should apply to whistleblowing detriment cases short of dismissal under section 47B but not to whistleblowing dismissal cases under section 103A.[128]The upshot of that is that the position on the scope of the application of the “Jhuti exception” remains unclear. However, based on our findings and primary conclusions nothing turns on this.[129]Finally, for the purposes of s.103A ERA (automatically unfair dismissal for whistleblowing) it must be shown that the principal reason for dismissal was the protected disclosure. The principal reason is the reason that is on the employer’s mind at the time of dismissal. If the protected disclosure was merely a subsidiary reason, the claim will fail. The causation test for s103A is stricter than for detriment, as in detriment claims a claim will succeed if the disclosure ‘materially influences’ (even if there are other reasons) (LJ Elias Fecitt and ors v NHS Manchester (Public Concerns at Work intervening) 2012 ICR 372 CA). Section 103A requires the disclosure to be the primary motivation for the dismissal.[130]Although under s.98 ERA the burden of showing a potentially fair reason is on the employer, if the employee claims that his/her dismissal was by reason of whistleblowing, the employee has the burden of showing that there is an issue which warrants investigation, but they do not have to prove this. Once the employee satisfies the Tribunal that there is an issue, the burden reverts to the employer, who then must provide on the balance of probabilities that it was not.[131]In the case of Kuzel v Roche Products Ltd 2008 ICR 799 CA it was emphasised that the burden of proof was on the employee to prove that the making of the protected disclosure was the reason for the dismissal. Mummery LJ agreed with the EAT that once the Tribunal rejects the reason advanced by the employer as to the reason for dismissal, it is not bound to accept the reason advanced by the employee. The Court of Appeal set down the following guidance for a three stage approach to follow in section 103A cases:• The employee must produce some evidence to show that the dismissal was for the principal reason of making a protected disclosure. This is not the same as placing the burden of proof on the employee – it requires them to challenge the evidence produced by the employer and to produce some evidence to support the different reason;• Having heard the evidence of both sides, it is for the Tribunal to consider the evidence as a whole and to make primary findings of fact on the basis of direct evidence or reasonable inferences;• The Tribunal must decide the reason or principal reason for dismissal on the basis that it is for the employer to show what the reason is. If the employer does not show it was for the reason they stated, then it is open for the Tribunal to find that it was for the reason asserted by the Claimant, but the Tribunal are not obliged to accept the Claimant’s reason (they can find that the dismissal was for a different reason). Our findings and conclusions on individual complaints in the claim[132]I shall now turn to deal with our factual findings and conclusions on individual complaints within the claim, starting with unauthorised deduction from wages. Unauthorised deduction from wages, s13 ERA[133]The claimant claims that the respondent has made unauthorised deductions from his wages by paying him at the rate of £15.51 per hour instead of £15.61 per hour. The claimant case is that he had been paid at the rate of £15.61 per hour on the CSJV contract and that pay was “ringfenced” when he transferred to the SCS contract.[134]The respondent accepts that on some occasions it paid the claimant based on £15.61 per hour rate, but it says these were overpayments due to payroll/administrative errors. These were the evidence of Ms Harrop, which Mr Ellis chose not to challenge in cross-examination. We accept her evidence on this issue.[135]Furthermore, the claimant’s contract of employment is clear that his rate of pay is £15.51 per hour (clause 3.1) [p.256 RB].[136]Although on 2 December 2021 the claimant sent an email to Mr Harre [p.517 RB] stating, inter alia,: “your stated that my pay rate will stay the same as it is now (£15.61/hr) and it cannot go down in any circumstances”, no evidence was presented to us to show that Mr Harre had accepted that the claimant’s rate was £15.61 per hour, and him doing so effectively had varied clause 3.1 of the claimant’s contract of employment to increase the rate of pay by 10p per hour.[137]To succeed on his claim for unauthorised deductions from wages, the claimant must show that the wages he claims he was underpaid were “properly payable” to him. That means that he must show that he had some legal (albeit not necessarily contractual) entitlement to the sums he claims have been unlawfully deducted from his pay (see New Century Cleaning Co Ltd v Church 2000 IRLR 27, CA).[138]For the reasons given above, we find that the claimant has failed to show that the difference of 10p per hour he claims has been unlawfully deducted from his pay was properly payable to him.[139]This means that his claim for unauthorised deduction from wages under s.13 ERA fails and is dismissed.[140]This also means that the same matter being complained of as a detriment for the purposes of his complaints under s. 47B ERA (whistleblowing detriment) and s.27EqA (victimisation) fails on the facts. Because, as we have found, there were no unauthorised deductions, consequently the claimant was not subjected to a detriment by the respondent not paying him what he had no entitlement to receive in the first place. Failure to provide the claimant with updated statement of terms and conditions of employment pursuant to s.4 ERA.[141]The claimant complains that the respondent has failed to give him a written statement containing particulars of the change in the particulars of his employment, contrary to s. 4 ERA.[142]We find this complaint misconceived. To the extent the claimant says that the updated particulars should have specified his “ringfenced” rate of pay at £15.61 per hour, as we said, that was not his correct rate of pay and therefore no such change in the particulars was required.[143]In so far as the claimant claims that a written statement should have been issued specifying his new place of work (i.e. the SCS contract), under his contract of employment (clauses 3.2 and 3.30 [pp.255, 256 RB]) the claimant agreed that he could be required to work on any assignment within the operating area as directed by the respondent. Therefore, there was no change in his place of work or where he was required to work – hence no reason to issue a statement of the change.[144]Finally, the claimant’s title was and remained Mobile Supervisor (clause 3.1 – [p.255 RB]). Again, there was no change in his title and no need for the respondent to issue a statement of the change.[145]This complaint fails and is dismissed. Failure to make reasonable adjustments contrary to sections 20 and 21 EQA.[146]The claimant says that the respondent applied three PCPs (provision, criterion or practice), which put him at a substantial disadvantage because of his disability in comparison with persons who are not disabled, thus engaging the duty to make reasonable adjustments under s.20EqA, which, he says, the respondent has failed to discharge.[147]The three PCPs the claimant says the respondent applied are:a. PCP1: The Respondent failed to make reasonable adjustments for the Claimant.b. PCP2: The Respondent’s approach to managing employee well-being, particularly for those with mental health conditions, during night shifts.c. PCP3: The Respondent’s disciplinary investigation procedure.[148]Section 15(4)(b) of the Equality Act 2006 says that the Tribunals should have regard to the Equality and Human Rights Commission’s Statutory Code of Practice on Employment (“the Code”) when dealing with discrimination cases, if appears relevant.[149]With respect to PCPs the Code says (at [6.10]) “[It] should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.”[150]The EAT in Lamb v The Business Academy Bexley EAT 0226/15 confirmed that “PCP” is to be construed broadly “having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability”.[151]Nevertheless, there are some limits to what can constitute a PCP. In particular, there has to be an element of repetition, actual or potential. A genuine one-off decision which was not the application of policy is unlikely to be a “practice”: Nottingham City Transport Ltd v Harvey [2013] All ER(D) 267 (Feb), EAT.[152]In Ishola v Transport for London [2020] ICR 1204 the Court of Appeal said that all three words “provision”, “criterion” and “practice” “..carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.”[153]Section 212 EQA defines “substantial” as meaning “more than minor or trivial”.[154]The Tribunal must make clear findings based on the evidence presented what the disadvantage was caused by the application of the PCP, why it is substantial and how it is linked to the disadvantage, though it is not strictly a causation question (see Sheikholeslami v University of Edinburgh [2018] IRLR 1090).[155]The way the claimant formulates his PCP1 is hard to understand. The only way it is possible to frame it as a PCP (i.e. a kind of policy or practice, applied by the respondent on a repetitive basis, or “a state of affairs”) is to read it as a policy or practice by the respondent not to make reasonable adjustments when it comes under the statutory duty to make reasonable adjustments. It would be indeed a rather bizarre policy or practice to act in active defiance of one’s statutory duty. In any event, the claimant presented no credible evidence that the respondent operated any such PCP. We find it did not have that PCP or applied it to the claimant.[156]To the extent the claimant real complaint is that the respondent did have a PCP of making reasonable adjustments when required but did not apply that PCP in the claimant’s specific case and the reason for that failure was the claimant’s disability, this would be a complaint of direct disability discrimination, which the claimant does not bring in these proceedings.[157]Therefore, this part of s.20EqA complaint fails on this very first hurdle.[158]PCP2 – At the start of the hearing, in responding to my questions, Mr Ellis clarified that by “the Respondent’s approach” in the formulation of the PCP2 was meant the respondent’s alleged policy/practice of not implementing hourly check calls for employees on night shifts, and not deploying or training a mental health first aiders to be present during all night shift duties.[159]While in theory, formulated in that way, this, in our view, meets the low threshold of a valid PCP, the evidence we heard from the respondent’s witnesses point in the opposite direction. That is that the respondent did have policies and practices of conducting welfare checks and had accessible mental health trained staff, available to employees on night shifts, if required. We accept the respondent’s witnesses’ evidence on this.[160]Furthermore, it was part of the claimant’s case that he himself conducted regular welfare checks on security guards during his night shifts and was trained as a mental health aider. Mr Flynn gave evidence for the claimant that he too was trained in mental health aid and assisted the claimant when the claimant confided into him about his mental health issues.[161]We, therefore, find that the claimant has failed to establish that the respondent had or applied the PCP2. This part of the complaint fails for this reason.[162]For completeness, the way the complaint is put by the claimant in relation to this PCP2, means that it is out of time. The claimant was suspended on 20 September 2022. As was discussed at the start of the hearing, with respect to the first claim (by which this complaint was presented) a complaint about anything that happened or did not happen before 1 November 2022, is prima facie out of time.[163]Considering the claimant’s suspension on 20 September 2022, the complaint must relate to a period before that date. The claimant commenced his work on the SCS contract in early January 2022. Therefore, the period in question, when the alleged PCP2 was applied was between January and September 2022.[164]A failure to make a reasonable adjustment is generally discrimination by omission. Section 123(3) and (4) EQA provides that a failure to do something is to be treated as occurring when the person in question decided on it, or is deemed to have decided not to do something (either by acting inconsistently with doing that something or at the end of a period, in which the person might reasonably have been expected to do that something), in this case to make an adjustment.[165]In either case, the time started to run if not in early January 2022, then shortly thereafter, and certainly not after 20 September 2022, when the claimant was placed on suspension and did not attend work thereafter. The complaint, therefore, is out of time, and the Tribunal does not have jurisdiction to consider it, unless it decides that it is just and equitable to extend time.[166]I shall deal with the time issues (including the continuing act point) in more detail later in the judgment, when considering the complaint of victimisation and whistleblowing detriment.[167]PCP3 – It was clarified at the start of the hearing by Mr Ellis, that the alleged PCP3 was the respondent’s disciplinary procedure, which did not allow employees accused of a disciplinary offence to have a companion present at investigation meetings, and secondly not allowed to have meetings (whether investigation or disciplinary or appeal) adjourned to allow employees to participate “without disadvantage”.[168]Dealing with the first element of the alleged PCP3 – It is true that the respondent’s policy (para 6.1 [p.274 RB]) says that an employee is not entitled to bring a companion to an investigation meeting. However, the claimant was allowed to bring a companion of his choosing well beyond the usual limits of a fellow employee or a trade union representative to his investigation meetings. See our findings of fact above.[169]Furthermore, the claimant never explained why his therapist, or his sister could not join the investigation hearing by video.[170]We appreciate that the claimant might preferred to have someone physically present next to him as a support person, rather than having them joining the hearing by video, but he still failed to explain why they could not attend earlier.[171]The claimant made his views known at the investigation meeting on 17 November, where he repeatedly protested against the meeting not being postponed beyond the dates when he said his companions would be available. It apparent from the notes of the meeting [pp. 571-575 RB] that that exchange took some time at the hearing. However, despite the length of that exchange, the claimant still did not explain why neither his therapist, nor his sister could attend the meeting on that day either in person or by video, and if they could attend by video why that would not be a reasonable adjustment.[172]In any event, even accepting, for the sake of argument, that by not postponing the meeting beyond the date when the claimant’s chosen companions became available to attend the investigation meeting, the respondent effectively applied PCP3 of not allowing the claimant to bring a companion, this element of the s.20EqA complaint must still fail on the basis that the claimant presented no evidence to this Tribunal to demonstrate how that PCP put him at a substantial disadvantage (and what that disadvantage was) in comparison with a person who does not share the claimant’s[173]In the case of Project Management Institute v Latif the EAT said at [54]: “54….The key point…is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is a [PCP] causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.”[174]Of course, the Tribunal could assume that a person with mental health problems would be exposed to a higher level of stress and anxiety when attending an investigation meeting without their therapist or a relative being physically present next to them, but that would be a general assumption, rather than a finding of fact that the claimant in this case was put at a substantial disadvantage by the application of the PCP.[175]Therefore, this element of the complaint fails on the basis of the claimant failing to prove the substantial disadvantage point.[176]The second element of the PCP3, that is the failure to adjourn “a meeting” (as it is described in the list of issues), to the extent “a meeting” means the investigatory meeting on 21 November 2022, I have already dealt with this issue.[177]If, however, the complaint relates to other meetings the respondent tried to arrange with the claimant during the disciplinary process, based on the evidence we heard, the opposite is true. We accept Ms Harrop’s oral evidence (supported by contemporaneous documentary evidence) that the respondent adjourned various disciplinary process meetings 13 times to accommodate the claimant’s requests. We, therefore, find that the respondent did not have the PCP of not adjourning meetings.[178]In any event, given the claimant’s choice to conduct his disciplinary hearing and appeal in writing and ample time afforded to the claimant to make his representations and submit his evidence, it is hard to see to what substantial disadvantage the claimant was put under by that PCP. The claimant has failed to prove that not adjourning meetings even further caused him a substantial disadvantage when compared with persons, who do not share his[179]It would not be a reasonable adjustment to adjourn the meetings ad infinitum or until such time as the claimant said that he was ready to attend. In any event, we find that the claimant was simply using various pretexts from unavailability of his therapist to an earthquake in Romania, and from the UK entry clearance requirements for his sister living in Paris to ringing in his ear to string out the process for as long as possible, while remaining suspended on full pay, and had no real intention to attend the hearings, accompanied or not.[180]Therefore, this final element of the s.20EqA complaint fails too. Harassment contrary to section 26 and 39 EQA[181]Section 26 of EqA says: (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. [… ] (4) 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.[182]To succeed on this complaint the claimant must show that: (i) a person engaged in conduct, which was unwanted (in the sense of unwelcomed or invited), (j) the conduct in question related to the claimant’s disability, and (k) it had the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant, or, if it did not have that purpose, then, taking into account the claimant’s perception and other circumstances it is reasonable to consider that the conduct had that effect.[183]This complaint is about the claimant, while suspended, receiving a large number of emails offering him shift work, him receiving those emails in his personal email account, and him receiving the emails when he would normally be off duty and during unsociable hours (early mornings or late nights).[184]There was very little evidence presented to us on this issue. We have been taken by Mr Ellis to some emails starting at [p.1837 CB]. These are emails, which were sent by the Control Team. These appear to be routine emails generated by someone in the Control Team to go to relevant staff offering them available shifts. It is nothing sinister or what could properly be described as “unwanted” in those emails.[185]To the extent the claimant did not appreciate receiving them while being suspended (because, as Mr Ellis put it in his closing submissions, they gave the claimant a false hope that he could still go back to work) it does not appear (and we have not been shown any evidence to that effect) that the claimant ever asked not to be sent such emails whilst he remained suspended.[186]Equally, we have not been shown any evidence where the claimant objects to have emails sent to his personal email address or at particular times, what he calls “unsociable hours”. We have not been shown any emails sent to the claimant during “unsociable hours”. In any event, just sending emails during “unsociable hours” cannot by itself be reasonably regarded as unwanted conduct, unless there some evidence of the claimant being expected to action or at least read such emails as soon as they arrived, or some other evidence of the claimant not wishing to receive them at that time for other reasons, which evidence we simply do not have.[187]We accept that in principle “bombarding” someone on suspension with emails inviting them to do a shift, could be regarded as having the effect of creating degrading or humiliating environment. However, on the facts of this case, we do not have the benefit of the claimant’s evidence to establish how he perceived receiving these emails and why he says that in the circumstances it was reasonable for him to regard the respondent’s sending these emails as having such effect. We, however, do take account of the fact that he complained about the emails in his appeal.[188]In any event, and more importantly, we have no evidence as to who exactly sent those emails to the claimant. They all signed as “Control Room”. As explained above to make good a complaint of harassment the claimant must show that “a person” engaged in unwanted conduct and what influenced their conduct (sending emails) was his disability. We have no evidence from the claimant either as to the identity of these people, on what basis he says they knew of his disability, or why he says them sending all these “shifts available” emails related to his disability.[189]In his closing submissions Mr Ellis said something about there being altercation between the claimant and the Control Room staff, but we heard no evidence as to what that altercation was, with whom at the Control Room, and how it all fits into the claimant’s complaint of harassment related to his[190]Mr Ellis said that the respondent should have told the Control Room staff not to send the emails to the claimant. Even accepting that, it still moves the claimant’s harassment case no further. The complaint of harassment is not about the respondent not telling the Control Room staff to stop sending emails to the claimant, but the Control Room staff sending the “shift available” emails to the claimant, which the claimant alleges them doing that related to his disability. There is no credible evidence before us to sustain this allegation.[191]In short, whichever way you look at this complaint, it is wholly misconceived. The claimant has failed to present any credible evidence to make out any constituent elements of this complaint. For all these reasons, it fails and is dismissed. Victimisation contrary to section 27 and 39 EQA[192]I shall deal with the victimisation and whistleblowing detriments complaints together, as the claimant relies on the same alleged detriments.[193]However, first I shall give out conclusions on the alleged protected acts.[194]S. 27 EQA states: 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. […] Protected Act 1: In December 2020, the Claimant assisted another employee in bringing an Employment Tribunal claim against the Respondent for breaches of the Equality Act 2010, under claim number 3315193/2020. The Claimant served as a McKenzie friend, aiding Ayodeji llori.[195]The respondent accepted in its consolidated response that it would amount to a protected act (although referring to it in the response as a protected disclosure). However, in the closings, Mr Northall argued that it could not be a protected act because this was Mr Illory’s discrimination complaint and not the claimant’s.[196]We do not accept that assisting another employee in bringing an ET claim containing complaints under the EQA falls outside s.27 EQA. The language in sub-section (c) is deliberately broad – “doing any other thing for the purpose of or in connection with the Act”. Assisting an employee in seeking a redress in an employment tribunal in relation to their infringed rights under the Act, in our view, plainly falls within “doing any other thing”. In our view, this would also fall under sub-section (b) “giving … information in connection with the proceedings under the Act”.[197]However, the respondent says that it was not aware of the claimant assisting Mr Ilory. Although Mr Ilory presented three witness statements for these proceedings, it does not appear they contain any evidence of the claimant’s assistance in relation to Mr Ilory’s claim. Therefore, we have no factual evidence upon which we can make a finding that the claimant indeed assisted Mr Ilory in his proceedings against the respondent. The burden to prove the facts is on the party that relies upon them. The claimant has failed to discharge it. Protected Act 2: On 23 December 2021, the Claimant sent an email to the Respondent and other employees advising them of their rights under The Working Time (Coronavirus) (Amendment) Regulations 2020, Regulation 13.[198]At the start of the hearing, I asked Mr Ellis under which subsection of s.27 EqA this protected act is claimed. He said – subsection (c) – “doing any other thing for the purposes of or in connection with the Act”. The Act referred to in that subsection is the Equality Act 2010, not any other legislation, such as the Working Time Regulations.[199]Therefore, informing employees of their rights under the Working Time Regulations, cannot be doing a “thing for the purposes of or in connection with the Equality Act”. It is not a protected act. Furthermore, we were not shown that email, so cannot make any positive findings as to whether the claimant in fact sent it and if so, what it said. Protected Act 3: In May 2022, the Claimant assisted Saheed Shittu to raise a grievance with the Respondent alleging discrimination.[200]As with Protected Act 1, in its response the respondent accepted that it would amount to a protected act (again, calling it a protected disclosure), but claimed that it was unaware of the claimant assisting Mr Shittu. However, in closing submissions Mr Northall argued that it could not be a protected act because it was not claimant doing anything, but Mr Shittu. For the same reasons as I have explained in relation to the Protected Act 1, we reject that submission. Although the grievance was Mr Shittu’s, the assistance was the claimant’s, and therefore by assisting Mr Shittu with his discrimination grievance, the claimant was “doing a thing …in connection with the Equality Act”.[201]Although we found Mr Shittu’s evidence unreliable in general, we accept his evidence that he spoke to the claimant and the claimant advised him to raise a grievance (his witness statement of 14 February, page 1, para 3). Therefore, it was a protected act.[202]However, the difficulty for the claimant is that we have no evidence, neither from him, nor from Mr Shittu, (and we were not referred to any documents in either bundle) to show that the respondent was aware that the claimant had advised Mr Shittu to raise a grievance or otherwise assisted him in pursuing it.[203]The respondent’s defence is that it did not know about the claimant assisting Mr Shittu. It is for the claimant to prove the primary facts, which show, or from which we could permissibly infer, that the respondent in fact knew about the claimant’s assistance to Mr Shittu. The claimant has failed to do that. Therefore, as with the Protected Act 1, the complaint by reference to this Protected Act 3 fails on that basis. Protected Act 4: Commenced claim 2201212/2023 on 7 February 2023. Protected Act 5: Commenced claim 2209987/2023 on 5 June 2023.[204]The two remaining protected acts – commencing the first two of the claims before this tribunal. The respondent correctly accepts that these were protected acts. In responding to EJ Nash’s orders, the claimant submitted a document entitled Protected Disclosures Detriments. There he identified the following detriment by reason of PA4 and 5 (though referring to them as PA7 and PA8, respectively).[205]With respect to Protected Act 4 – “unlawful pension enrolment”. With respect to PA5 – suspension and being bombarded with emails.[206]With respect to the suspension, it started on 20 September 2022, where the second claim was presented on 5 June 2023. Therefore, logically the claimant’s presentation of the second claim could not have been the reason for his suspension.[207]With respect to the “bombardment with emails”, this was not pleaded as a detriment for the purposes of the victimisation complaint, but as a complaint of harassment. In any event, it fails for the same reasons as I have explained when dealing with the harassment complaint earlier.[208]Mr Ellis also suggested that PA4 and PA5 are relied upon on the basis that in subjecting the claimant to earlier detriments the respondent “believed” that the claimant would bring these two claims, and that belief caused the respondent to subject the claimant to such earlier detriments. However, again, we heard no evidence from the claimants’ witnesses and not taken to any documentary evidence from which we could permissibly conclude that the people who it is alleged to have subjected the claimant to all such detriments believed that he would issue these claims and that what operated on their minds when they acted in the way complained of.[209]Considering that some of these alleged detriments go as far back as January 2020, if such causative link to the claims issued in 2023 were indeed present, that would have meant that the putative discriminators had a truly remarkable foresight. In short, there is no credible evidence to support that, and we reject this allegation.[210]The upshot of all that is that the only element of the claimant’s victimisation claim that overcomes this first hurdle is the allegation that because of him submitting his first claim in February 2023, he was “unlawfully enrolled into the pension scheme in March 2023”.[211]This, however, fails on causation. The claimant provided no credible evidence to show that his auto-enrolment into the pension scheme had anything to do with him submitting the Tribunal claim. Therefore, he has failed to establish a prima facie case, even with us ignoring any explanations provided by the respondent. In any event, we accept Ms Harrop’s evidence as to why the claimant was automatically enrolled. His claim had nothing to do whatsoever with the respondent’s auto-enrolling him to the pension scheme. The respondent simply followed their usual auto-enrolment process, as was required by law.[212]Whether or not the respondent should have notified the claimant in advance of the forthcoming auto-enrolment may be a question of process improvement, but we have no evidence that the respondent not sending an advance notification had anything to do with the claimant’s bringing proceedings against the respondent. Furthermore, it appears that the claimant’s contract of employment [p.258 RB] provides for information being sent after and not before the auto-enrolment.[213]In any event, the claimant objected to be the enrolment and was quickly refunded the contribution deduction. Hence he suffered no detriment.[214]It appears that, having received the refund, he then complained about being deprived of re-enrolment. He, however, presented no evidence to show that having objected to be auto-enrolled into the scheme, and having received his contributions refund, he then asked the respondent to be re-enrolled into the scheme and was told by the respondent that they would not do that. Therefore, this final element of the victimisation complaint fails too.[215]For completeness, as I have said earlier, I will deal with the alleged detriments in so far as they apply to the complaints of whistleblowing detriment and victimisation together. Meaning that there will be further reasons why the claimant’s complaint of victimisation must fail.[216]Finally, the three additional protected acts mentioned in Mr Ellis opening skeleton do not assist the claimant for the following reasons: “PA1 – 7 Nov 2019 – C made a claim in ET for unlawful deductions of wages by R (3202569/19) – the claim was settled via COT3 agreement.”[217]It appears the claim was for unlawful deduction from wages, and, therefore, for the reasons explained with respect to Protected Act 2, will not qualify as a protected act under s.27 EQA. Furthermore, the claimant presented no evidence of that claim and its content. “PA5 – 17 May 2022 - C - provided ongoing support to Saheed Shittu in addressing workplace issues, initially assisting him in drafting a grievance letter concerning racial discrimination he was experiencing and requesting remedial action.”[218]This is a repetition of Protected Act 3, which we have dealt with. “PA8 – 3 August 2023 - C brought proceedings in the Employment Tribunal against R – Third Claim: 2213158/2023”[219]This is the last of the three claims brought by the claimant. Therefore, by definition, timing-wise it could not have been the cause of something he complains about in those claims as detriments. Detriment contrary to section 47B ERA Out of Time Point[220]Before considering each of the detriments, I shall first give our findings and conclusions on the out of time point. As I have said earlier, these findings and conclusions equally apply to the complaint of failure to make reasonable adjustments.[221]Under s.48 ERA and s.123 EqA the primary limitation period is 3 months beginning with the date of the act complained of (subject to the appropriate ACAS early conciliation extension). If the claim is not brought within the 3- month period, the Tribunal shall not consider it unless it is satisfied that:a. with respect to the whistleblowing detriment complaint, it was not reasonably practicable to present it within the 3-month period and it was presented within a reasonable period thereafter; andb. with respect to the EQA complaints the test is different – whether the complaint was presented within such other period as the Tribunal thinks just and equitable.[222]There are similar provisions (s.48(4) ERA and s.123(3) and (4) that explain the meaning of “date of the act”. Broadly, if it is an act extending over a period, time starts to run at the end of that period. If it a deliberate failure to act – time starts to run when the person decided (or deemed to have decided) not to act. I have already touched on that when dealing with the complaint of reasonable adjustments.[223]It is possible for various acts, even if done by different actors, and spread over a long period of time, to form part of an act extending over a period, if there is a common underlying policy, practice, regime or design, or what it was described in Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530, CA as “an on-going situation or a continuing state of affairs”.[224]Recently, in Worcestershire Health and Care NHS Trust v Allen 2024 EAT 40 the EAT observed that there is no requirement that the ‘conduct’ extending over a period for the purpose of S.123(3) must all relate to the same protected characteristic. We were not cited and are not aware of a direct authority on the point whether “conduct extending over a period” could similarly be “pieced together” by acts and omissions, some of which are alleged to be whistleblowing detriments, and some of which are alleged to be discriminatory acts/omissions, thus bringing both complaints across the limitation timeline. This issue, however, is not something we need to decide to determine this claim.[225]More importantly for the purposes of the present claim, as was explained by the EAT in South Western Ambulance Service NHS Foundation Trust v King 2020 IRLR 168, EAT, and again confirmed in Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust and ors EAT 0100/19, if any of the acts/omissions relied upon as forming part of a continuing act are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act. Although it was said in the context of the discrimination claims, we see no principled reason why the same should not apply with respect to whistleblowing detriment complaints.[226]Now, turning to the facts of this case. As I have said earlier, anything occurring before 1 November 2022 is prima facie out of time. The dates of the alleged detriments were discussed and confirmed by Mr Ellis at the start of the hearing. Based on those clarification, it appears that the only alleged detriments that are in-time are:(i) suspension (accepting that on the authority of Tait v Redcar and Cleveland Borough Council it is a continuing act ending the claimant’s dismissal on 27 July 2023),(ii) the so-called “unlawful autoenrolment” in March 2023, and(iii) the alleged deduction from wages ending with the claimant’s dismissal on 27 July 2023.[227]However, as we have found, the alleged “the unlawful auto-enrolment” was for the reasons explained by Mr Harrop’s and had nothing to do with the claimant’s protected acts or protected disclosures, and, as we have found, the respondent did not make any unauthorised deductions from the claimant’s wages, and therefore, did not subject the claimant to any detriment. It follows, that the last two of the detriments relied upon cannot be said to be part of a continuing act of detriment either for the purposes of the whistleblowing detriment complaint or the victimisation complaint.[228]This leaves the claimant with the only one in-time detriment – his suspension. Having considered the evidence before us, we find that the sole reason for the claimant’s suspension on 20 September 2022 and the continuation of the suspension until his dismissal, was the respondent’s genuine and reasonable belief that the claimant was guilty of serious misconduct that warranted a proper investigation, and to ensure the integrity of it the claimant had to be suspended. That decision had nothing to do with the claimant’s alleged protected disclosures or protected acts.[229]The claimant has failed to present credible evidence to show that what operated on Mr Jobbins’ mind when he suspended him was the claimant’s protected disclosures or protected acts. On the contrary, the contemporaneous documents [pp.500-505 RB] show that the only reason Mr Jobbins decided to suspend the claimant was because he was tasked with the investigating complaints about the claimant’s conduct. It is also apparent from reading the notes of Mr Jobbins’ interview by Mr Norris [pp.507 -516 RB].[230]As the investigation progressed more and more claimant’s misconduct issues came to light, which gave the respondent further grounds to believe that the claimant was guilty of serious misconduct, and therefore his suspension must continue until his disciplinary case was decided at a disciplinary hearing. In short, we find that the suspension and its continuation had nothing to do with the claimant’s alleged protected disclosures or protected acts.[231]This means, that it too cannot be used as an act forming part of the alleged continuing act of detrimental treatment for the purposes of the whistleblowing detriment and victimisation complaints.[232]This, in turn, means that all alleged detriments (even if, for the sake of argument, can be said to be a continuing act) are out of time, and the Tribunal shall not consider the complaint of whistleblowing detriment unless it is satisfied that it was not reasonably practicable for the claimant to present it in time and that he presented it within a reasonable period thereafter.[233]On this question, the following key rules can be derived from the authorities:a. s.111(2)(b) ERA “should be given a liberal interpretation in favour of the employee” — Marks & Spencer Plc v Williams-Ryan [2005] EWCA Civ 470, [2005] I.C.R. 1293, [2005] 4 WLUK 376.b. what is reasonably practicable is a question of fact and thus a matter for the tribunal to decide. Lord Justice Shaw said in Wall’s Meat Co Ltd v Khan 1979 ICR 52, CA: “The test is empirical and involves no legal concept. Practical common sense is the keynote….”.c. the onus of proving that presentation in time was not reasonably practicable rests on the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint” — Porter v Bandridge Ltd 1978 ICR 943, CA.d. if an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in his or her case, the question is whether that ignorance or mistake is reasonable. When assessing whether ignorance or mistake are reasonable, it is necessary to take into account any enquiries which the employee or his or her adviser should have made - Lowri Beck Services Ltd v Brophy 2019 EWCA Civ 2490, CAe. Even if a claimant satisfies a tribunal that presentation in time was not reasonably practicable, that does not automatically decide the issue in his or her favour. The tribunal must then go on to decide whether the claim was presented “within such further period as the tribunal considers reasonable”.[234]The claimant led no evidence as to why it was not reasonably practicable for him to present his complaint before the expiry of the primary limitation period. Therefore, we have no evidential basis whatsoever to find that it was not reasonably practicable for him to do so. It appears, reading his correspondence with the respondent and the Tribunal, that the claimant is very well versed in the employment law and tribunal procedure and the time limit would have been something known to him at the time. In fact, with his third claim he specifically says that he filed it quickly to meet the 7-day time limit for his interim relief application.[235]Therefore, we find that it was reasonably practicable for him to present his complaint of whistleblowing detriment before the expiry of the primary limitation period. He has not done that. Therefore, the Tribunal does not have jurisdiction to consider it.[236]His victimisation claim fails for the reasons explained earlier, however, for completeness, we also find that it must fail on the jurisdiction/time point. Although the test is different to reasonably practicable and the just and equitable jurisdiction gives the Tribunal a broad discretion, it is still for the claimant to tell the Tribunal why we should think that the period within which he presented his victimisation complaint was just and equitable. He did not do that.[237]In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 and the EAT’s decision in Bahous v Pizza Express Restaurants Limited UKEAT/0029/11/DA it was held that the absence of an explanation for the delay does not prevent the Tribunal from exercising its discretion and extending the time limit, and the Tribunal is not obliged to infer that there was no acceptable reason for the delay (see para 25 in Abertawe).[238]However, the reason or the absence of a good reason for the delay is a relevant factor (see para 19 in Abertawe). This was also confirmed by the EAT in the recent case of in Jones v. The Secretary of State for Health and Social Care, 2024 EAT.[239]In Thompson v Ark Schools [2019] I.C.R. 292, EAT, at [13] to [21], and in particular that:a. Time limits are exercised strictly;b. The onus is on the claimant to persuade the tribunal to extend time;c. The decision to extend time is case- and fact-sensitive;d. The tribunal’s discretion is wide;e. Prejudice to the respondent is always relevant;f. The factors under s33(3) Limitation Act 1980 (such as the length of and reasons for the delay and the extent to which the Claimant acted promptly once he realised he may have a claim) may be helpful but are not a straitjacket for the tribunal.[240]Having considered all the factors and the circumstances we find that it will not be just and equitable to extend time. We have no explanation from the claimant not only about the delay, but why he says it will be just and equitable to extend time (Mr Ellis did not make any submissions on this point either). Given the historic nature of the allegations (going back to January 2020) and the fact that many of the people involved (such as Emma Craig and Jonathan Burns) are no longer employed by the respondent, there is a clear forensic prejudice to the respondent. In any event, for the reasons explained above the claimant’s complaint of victimisation fails on the protected acts hurdle, and therefore allowing it to proceed would be pointless.[241]For the same reasons, we find that it will not be just and equitable to extend time with respect to the claimant’s complaint of failure to make reasonable adjustments related to PCP2.[242]Given our findings on the jurisdiction issue, there is no need for us to go on and consider whether the alleged protected disclosures amount to protected disclosures in law. This would be a pointless exercise.[243]In passing I shall observe that we do not accept Mr Northall’s submission that as a matter of law, absent the claimant’s direct evidence that he held a reasonable belief that he was making the disclosures in the public interest it would not be open to the Tribunal to find that he held such belief. Whilst the absence of such direct evidence, no doubt would make the task harder for the claimant, we see no principled or policy reason why it would be impermissible for the Tribunal to make such a finding based on other available evidence, such as contemporaneous documents or recordings. It is not hard to envisage scenarios when for very good reasons (which do not apply in the case of this claimant) an employee who made a protected disclosure is unable to give evidence to the Tribunal, for example, due to physical or mental incapacity. Considering the purpose of the legislation, it would be a very strange result if such employees were deprived of the legislative protection.[244]We did, however, review the alleged detriments 1 -15, on the basis if we had had jurisdiction to deal with them on the merits.[245]Given our primary findings, I do not propose to spend much time dealing with each of them in detail. In sum, we find that the complaint must fail in relation to all of them for the following reasons.[246]With respect to the alleged detriments 2, 5, 7, 8, 10, 12 and 15, the claimant has failed to establish primary facts for the Tribunal to conclude that these acts/events did in fact take place. Therefore, these allegations fail on the facts.[247]With respect to the other alleged detriments the claimant has failed to discharge the initial burden to show that the alleged acts/omissions by the respondent could be related to him making the alleged protected disclosures.[248]In any event, we are satisfied with the respondents’ explanations for each of those acts/omissions and we find that they had nothing to do whatsoever with the alleged protected disclosures.[249]Briefly, we accept that:a. asking the claimant for right to work was the respondent’s simply following its HR procedures,b. the incorrect holiday calculation was an admit error,c. the same goes for the delay in providing the payslips,d. the handover in Uxbridge was a simple matter of the claimant’s arrangements with his colleagues,e. asking the claimant to sign SAI and SOP documents was necessary to ensure that the claimant understands and complies with his duties and that was required by the terms of the respondent’s commercial contract with its client,f. the dust and cables in the office, whilst might not be an ideal working environment, had nothing to do with the claimant per se, let alone his protected disclosures, the office was used by many other people, and any suggestion that the respondent deliberately created such an environment as a way to retaliate against the claimant for his protected disclosures is simply fanciful,g. the claimant being asked to pick up colleagues was evidently a matter of convenience for them and had nothing to do with the claimant’s alleged protected disclosures.[250]I have already dealt with the suspension, the auto-enrolment and deduction from wages. There is no need for me to repeat our findings and conclusions on these alleged detriments again. For the same reasons, these detriments would have also failed on the merits as allegation of victimisation detriments.[251]For completeness, having reviewed additional alleged detriments in Mr Ellis’ opening skeleton against the 15 alleged detriments in the final list of issues, we find that these are either repetitions of the detriments in the final list of issues, or the allegation that fall outside the claimant’s pleaded case. No application to amend was made by Mr Ellis at the hearing to allow such further alleged detriments to be added to the claim. In any event, as noted above, at the start of the hearing Mr Ellis expressly confirmed to the Tribunal that the final list of issues [at pp.203 – 211 RB] was agreed by the claimant. Automatically unfair dismissal contrary to S.103A ERA[252]This brings me to the final two complaints in the claims – whistleblowing dismissal and ordinary unfair dismissal.[253]With respect to the former, as I have explained at the start of our judgment – the claimant must produce some evidence to show that the dismissal was for the principal reason of making a protected disclosure.[254]Having heard oral evidence of Mr Lines and Mr Darren Walker we make the positive finding that the alleged protected disclosures were not the reason for their decisions to dismiss the claimant and uphold that decision on appeal, respectively. We also accept their evidence that the sole reason for the dismissal was the claimant’s conduct and that those were their decisions and their decisions alone, free from any influence by anyone else.[255]The claimant case, however, is that the decision to dismiss him was manipulated by Mr Phil Walker by deliberately failing to supply end-of-shift reports to Mr Norris, which in turn caused Mr Norris to present a skewed report to Mr Lines, who then took a decision to dismiss the claimant based on incomplete information. We reject that submission. I will explain more on this when dealing with the ordinary unfair dismissal complaint.[256]However, even if any of that were true (i.e. that Mr Phil Walker wanted to procure the claimant’s dismissal because of the claimant’s whistleblowing and in pursuance of that goal withheld the end of shifts reports from Mr Norris), which we do not accept the claimant has established in evidence, but for the sake of argument, even if all of that were true, that still gets the claimant nowhere as far as his automatic unfair dismissal claim is concerned. That is because in University Hospital North Tees and Hartlepool NHS Foundation Trust v Fairhall EAT 0150/20 the EAT emphasised that Jhuti exception only applies where an innocent decision-maker is manipulated into dismissing a whistleblower for an apparently fair reason and is ‘unaware of the machinations of those motivated by the prohibited reason’. It does not apply where the decision-maker is aware of the protected disclosure and thus not deceived into dismissing for an unrelated reason.[257]In this case, the claimant has made it abundantly clear in his submission to Mr Lines and to Mr Darren Walker that he considered himself a serial whistleblower. He presented all his evidence and arguments about his protected disclosures and why he thought he was being disciplined for them, and why he says Mr Norris report was incomplete by reason of the end-ofshifts report not being considered. All this evidence was before Mr Lines and Mr Darren Walker when they took their decisions to dismiss the claimant and uphold the dismissal, respectively. Therefore, they were fully aware of the alleged protected disclosures and the alleged “machinations” by Mr Phil Walker in not providing the end-of-shifts reports. Consequently, for the purposes of the Jhuti exception they were not “innocent decision-makers”.[258]For the same reasons, this argument is not sustainable as a matter of causation. Even if Mr Norris’ report was incomplete by reason of the missing end-of-shift reports and other documents, when the disciplinary case came before Mr Lines, and certainly when it was before Mr Darren Walker, the claimant himself filled in all those gaps by submitting all what he thought should have been considered by Mr Norris, and all such additional documents were duly considered by Mr Lines and Mr Darren Walker.[259]In short, even if one were to accept the claimant’s speculative theory, which we do not, his s.103A ERA claim is still doomed to fail. It fails and is dismissed. “Ordinary” unfair dismissal contrary to ss.94, 98 ERA[260]This leaves us to address his ordinary unfair dismissal complaint.[261]As I have said we are satisfied that the reason for the claimant’s dismissal was related to his conduct, namely misusing the company’s fuel card, being late for his shifts, starting them later than the reported times through selfbookings, his inactivity during the shifts, and his suspected involvement in the UK Enquiries YouTube channel.[262]The question for us is whether in the circumstances (including the size and administrative resources of the employer's undertaking) the respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant. This question must be determined in accordance with equity and the substantial merits of the case (s.98(1) ERA).[263]In misconduct cases, the test set out in British Home Stores v Burchell [1978] IRLR 379 should generally be applied. The three elements of the test are:a. Did the employer have a genuine belief that the employee was guilty of misconduct?b. Did the employer have reasonable grounds for that belief?c. Did the employer carry out a reasonable investigation in all the circumstances?[264]Furthermore, in reaching its decision, the Tribunal must determine whether the employer’s decision was within a range of reasonable responses which a reasonable employer could come to in the circumstances. It means that it must review the employer’s decision to determine whether it falls within the range of reasonable responses, rather than to decide what decision the Tribunal would have come to in the circumstances of the case.[265]In looking at whether dismissal was the appropriate sanction, the question is not whether some lesser sanction would, in the Tribunal's view, have been appropriate, but rather whether dismissal was within the range of reasonable responses that a reasonable employer could come to in the circumstances. The Tribunal must not substitute its view for that of a reasonable employer. (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[266]When an employee is dismissed for a reason of his or her conduct, the “range of reasonable responses” tests applies both to the decision to dismiss and to the procedure by which that decision was reached, including the investigation stage of the process. (HSBC Bank plc v. Madden 2000 ICR 1283 CA). However, the correct approach is not to consider this as two separate questions, but as relevant considerations the Tribunal must have regard to in answering the single question posed by section 98 (4) of ERA (see USDAW v Burns EAT 0557/12).[267]Further, in Taylor v OCS Group Ltd 2006 ICR 1602, CA, the Court of Appeal said that: “… it is trite law that S.98(4) requires the employment tribunal to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the employment tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.” Thus, not every procedural defect will render a dismissal unfair. It might be counterbalanced by other considerations, including the seriousness of the misconduct in question.[268]The principle that the Tribunal must not substitute its view for that of a reasonable employer equally applies in relation to the question of credibility of witnesses, based on whose evidence the employer took the decision to dismiss (Morgan v Electrolux Ltd [1991] IRLR 89).[269]However, the band (or range) of reasonable responses test should not be confused as replacing the statutory test under s.98(4) or otherwise lowering the bar of reasonableness. The range is not infinite, and the starting point remains the words of S.98(4) themselves.[270]It is also important to note that the reasonableness test applies at the time of dismissal, meaning that the reasonableness of the employer’s decision must be assessed based on the facts and beliefs known to the employer at the time of the dismissal and not with the benefit of hindsight or subsequently acquired knowledge (see W Devis and Sons Ltd v Atkins 1977 ICR 662, HL).[271]Where there are problems with the disciplinary hearing itself, those can in some circumstances be remedied on appeal, even if the appeal is not a complete rehearing, however the procedure must be fair overall (Taylor v OCS Group Limited [2006] IRLR 613).[272]The claimant says the dismissal was unfair because of inadequate investigation, namely the failure to review the end-of-shift reports and CCTV footage, which he says would have shown that he was openly reporting his use of the fuel card to refuel his personal car, that he was not late for his shifts and when he was - he reported being late, and that his inactivity was no different to inactivity of other mobile supervisors.[273]We do not accept this criticism. We find that Mr Norris has done a very thorough investigation and produced a well-reasoned, balanced, and fair investigation report. His investigation efforts were well within the range of reasonable responses.[274]As Mr Norris acknowledged in his evidence the end of shifts report showing the claimant reporting his use of the fuel card would be a mitigating factor, but this factor could not trump all other evidence gathered by Mr Norris clearly pointing towards persistent and unauthorised use of the fuel card by the claimant.[275]Mr Norris’ tasks was to decide whether there was a disciplinary case to answer based on the evidence he had, not what disciplinary sanction to apply. Therefore, not having the end-of-shift reports as a mitigating factor did not mean that it was not open to Mr Norris to reasonably conclude that there was a disciplinary case to answer on that charge.[276]Similarly, with respect to the lateness, the claimant himself told Mr Norris “My biometric biosite access and CCTV would absolutely give the indication of my arrival, booking on, etc.” [p.811 RB] and “I have always booked on at the time I was on site” (annotated notes of the meeting – [p.655 RB]) and again at [p.657 RB] “As mentioned above: I have always booked on when arriving on site.” Considering the discrepancies in times between bookings-on and biosite access data, it was clearly open for Mr Norris to form a reasonable belief that the claimant was not telling the truth, and in fact was booking himself in as having started his shift before actually turning up for work.[277]We reject the claimant’s very late attempt in Mr Ellis’ closing submissions to blame his gym-injured finger or palm for the lack of biosite data reports. It was never part of his case during the investigation, the disciplinary, or the appeal, or these proceedings until the closing submissions. No evidence was presented to us about his injured figure or palm and how that affected his ability to use biosite scanner. Furthermore, this explanation does not sit well with the above contemporaneous statements made by the claimant to Mr Norris, and the available biosite data showing that the claimant was actually use the fingerprint scanner despite his alleged injuries.[278]Mr Norris had clear evidence from Mr Harre that the agreed late start at 9 – 9.30pm applied to Tuesdays only. The claimant himself writes to Mr Harre on 2 Dec 2021, [p.517 RB] – “We agreed that I can start work remotely on Tuesdays and I will be on site around 21:00 (two hours working remotely from 19:00 - 21:00).” However, during the interview with Mr Norris the claimant claimed that flexible arrangements applied to other days as well. Again, Mr Norris had reasonable grounds to conclude that the claimant was not telling the truth and was trying to justify his lateness by referring to some other flexible arrangement, of which Mr Norris had no supporting evidence from the claimant or anyone else.[279]Consequently, he concluded “There is no evidence this was ever highlighted to management by PC and his Timegate appears demonstrate a very different arrival time compared to the more accurate Biosite data.” He found that the claimant “ha[d] been late on 74 out of 105 shifts during this period and this resulted in approximately 63.3 hours when he should have been on site and was not.” [p. 845 RB]. Based on the evidence before him it was plainly a reasonable conclusion to make.[280]Based on the Trackforce reports Mr Norris found that several shifts had significant periods of inactivity of over one hour or more – a plainly correct conclusion on the evidence before him. The fact that other mobile supervisors might equally had period of inactivity (as presented by the claimant to Mr Norris with his email of 26 December) was irrelevant. Mr Norris was not tasked to investigate other mobile supervisors but the claimant.[281]In any event, (as can be seen from his report at [pp.829, 843 and 845 RB], Mr Norris did consider the claimant’s email of 23 December at 16:02 and his email of 26 December, as indeed his email of 3 January (despite them arriving after the deadline of 4pm on 23 December).[282]In those emails, instead of giving his explanations about the low level of activity, as correctly noted by Mr Norris in his report, the claimant was trying to move “the spotlight away from him and failing to answer the question he was asked.”[283]Mr Norris correctly acknowledged that “The limited activity allegation is possibly one of the weaker elements of this investigation” because of the lack of benchmark comparison. However, he concluded that the evidence of the late attendance on site and the time taken to purchase fuel for a personal vehicle during shifts, this matter still merited to be considered at a disciplinary hearing. This conclusion cannot be faulted.[284]Mr Norris’s findings and conclusions on the use of the company’s fuel car are equally compelling and clearly was open for him to reach based on the evidence before him. Just because in the past on some occasions the claimant was allowed to use his personal vehicle and was giving managers lifts home in the company or in his personal vehicle, did not mean that there was a standing authorisation for the claimant to use his personal vehicle whenever he felt like without seeking any prior approval, and less so that he could use the company’s fuel card to refuel his personal vehicle.[285]Moreover, the fuel card data highlighted several transactions that gave Mr Norris reasonable grounds to conclude that the petrol purchased using the company’s fuel card was not used by the claimant for business purposes, but for personal use. The fact that the claimant was recording some of such use in the end-of-shift reports did not mean that he was entitled to make use of the company’s fuel card for personal gain.[286]Furthermore, Mr Norris concluded (and we find that it was open for him to reach that conclusion) that the discrepancy between the actual use £773.56 and what was recorded on Trackforce £193.38 suggested that the claimant was attempting to disguise many of the other purchases of fuel.[287]He also found the fuel card linked to an ex-employee (Neil Dixon) had been used to fill in the claimant’s personal vehicle. The claimant unequivocal statement in his written response to Mr Norris’ questions was that he never used any other card than the card linked to the SCS contract. That clearly contradicted the evidence before Mr Norris that Neil Dixon’s card had been used to fuel the claimant’s private vehicle on 4 separate occasions.[288]The amount of unleaded fuel purchased using the fuel card £937.39 was in stark contrast with the amount of diesel (used by the company’s vans) purchased in the same period £294.23, which suggested that the fuel could not have been used for business purposes.[289]That conclusion was further corroborated by the finding that the fuel card was used to fill up the claimant’s personal vehicle at 05:25am on 20 April and then again at 20:38 on 21 April, when the claimant was not on shift the night of 20 to 21 April 2022. The total fuel purchased was for £51.04. There was a similar finding in relation to the use of the fuel card between 10 and 18 June 2022.[290]The claimant did not provide any adequate explanations for his use of the fuel card but tried to divert the discussion to the historic events of him giving lifts home to his managers, which was before the period in the scope of Mr Norris’ investigation.[291]Finally, the claimant explanations about the use of personal vehicle due to the company’s van being unavailable or broken down was not supported by any evidence that it was in fact the case.[292]We also note that it appears that later the claimant changed his story and claimed that the reason for using personal vehicle was to conduct “covert patrols”. He, however, did not provide any evidence that he was ever asked to conduct such “covert patrols”, who instructed him to do them, nor did he provide any convincing explanations as to why such “covert patrols” were necessary for the claimant to move from one site to another in his personal vehicle during night shifts to perform his duties.[293]Although, this matter was discounted on appeal, we also find that based on the gathered evidence it was plainly open to Mr Norris to form a reasonable view that the claimant was associated with the video clips posted on the UK Enquiries YouTube channel. He had evidence from people who worked with the claimant and identified him and Mr Flynn as persons on the video clips. Furthermore, the comments under the video clips referred to the claimant, albeit with his name misspelled.[294]Given the contents of the videos, in particular under the title ‘Atalian ServestWe got ALLLL the illegal signage!!’ and the claimant’s previous several complaints about incorrect CCTV signage it was not unreasonable for Mr Norris to conclude that the claimant was in some way associated with the channel.[295]Finally, the fact that the videos in questions were removed from the YouTube channel shortly after the claimant had been confronted with this allegation was too a relevant factor, which Mr Norris could reasonably take into account in coming to his conclusion.[296]In sum, there was more than enough for Mr Norris to come to a reasonable view that there was a disciplinary case for the claimant to answer on the charge of gross misconduct.[297]Consequently, we find that the respondent did have a genuine belief that the claimant was guilty of gross misconduct, and it had reasonable grounds to hold such a belief, having done a reasonable investigation into the allegations against the claimant.[298]We also find that the respondent’s subsequent disciplinary process was well within the range of reasonable responses. We reject the claimant’s criticism of the delay in handling his appeal. The claimant was the prime reason for the delays by keep asking to postpone the hearings under various pretexts. Furthermore, his insistence of having his appeal determined on the papers and for this purpose submitting volumes of documents (over 1000 pages) did not help with a swift progress of his appeal.[299]The respondent was only responsible for 3-4 weeks of the overall delay and that was due to the HR restructuring. In any event, that part of the protracted process fell after the claimant had been dismissed and therefore could not be said to render his dismissal unfair.[300]The claimant was afforded every opportunity to present his case and he took full advantage of that by submitting a large quantity of documents. Mr Lines and Mr Darren Walker diligently considered all the claimant’s evidence and submissions, and still came to the conclusion that the claimant was guilty of gross misconduct and the appropriate sanction for that was summary dismissal.[301]We find that in those circumstances their decisions were well within the range of reasonable responses open to a reasonable employer.[302]The claimant in his representations during the disciplinary process, and Mr Ellis during this hearing, placed a great deal of emphasis on the fact that the claimant had been recording in the end-of-shift reports his usage of the fuel card, and that his managers had been using him as a taxi service to transport them, their family members and friends home from pubs and other social and sporting events. The point the claimant is trying to make is that in the circumstances the conclusion that he was guilty of fraudulent use of the fuel card, or forgery or dishonesty was unfair.[303]Of course, on one view there is little (if any difference) between managers using the claimant during his working time to ferry them and their family and friends from pubs and sporting events back home and telling the claimant to use the company fuel card to refuel his car and claim other outlays on expenses, which expense claims they then approve, and the claimant using the company fuel card for commuting to work and back home and for other non-business-related trips. In both cases it seems to us such use would not be authorised and quite possibly dishonest (unless, of course, the managers had such privileges as part of their perks package).[304]It also seems to us a stretch to suggest that such “taxi service” falls under the claimant’s duty under clause 3.1 of his contract “to perform any additional or other functions that the Company considers necessary to meet the needs of the Company from time to time.” (as Mr Harre appears to suggest in his evidence)[305]However, just because his managers might have misused their position in the past does not mean that the claimant’s use of the company fuel card for personal gain becomes automatically authorised and proper.[306]Equally, the fact that the claimant had been recording the fuel card usage in his end-of-shift reports does not mean that it was not open for Mr Lines and Mr Darren Walker to conclude that in all the circumstances it was still dishonest use of the company fuel card based on what was known or should have been apparent to the claimant, especially considering the position of trust and responsibility he occupied.[307]For completeness, we also reject the claimant’s attempt to blame all that on lack of training. The claimant was a senior supervisor with considerable experience. He is an intelligent person. The suggestion that he did not know better because he was never “trained” that using the company’s property for personal gain, or not turning up for work on time, or misreporting his actual starting time, or not performing his duties when at work - were all serious disciplinary offences is simply not credible.[308]We equally reject the suggestion (first appeared in Mr Ellis’ closing submissions) that Mr Lines was biased against the claimant by reason of his involvement in Mr Flynn’s disciplinary. We heard no evidence of Mr Lines’ involvement in Mr Flynn’s disciplinary, so have no facts on this last-minute allegation. It was not even put to Mr Lines during his cross-examination by Mr Ellis that he was biased against the claimant for that reason. In short, the allegation of bias is without any merits.[309]For all these reasons we find that the dismissal was fair, and the claimant’s complaint of unfair dismissal fails and is dismissed. Overall conclusion[310]It follows that we find that all complaints in the claim and not well-founded. The claim fails and is dismissed in its entirety.