Mr M Ithia v MUFG Securities EMEA plc and M Conway: 2206616/2020

EMPLOYMENT TRIBUNALS

Case No 2206616/2020

Between

Mr M IthiaClaimant

(1) MUFG Securities EMEA Plc (2) Michael ConwayRespondent

Before

Employment Judge Adkin

In person for claimant

Ms T Barsam (instructed by Counsel) for respondent

Date 27 June 2024

JUDGMENT

[1]The Claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010 (“EqA”) by virtue of suffering headaches (eye strain, neck ache or shoulder pain) at the material time between 27 March 2019 and 15 July 2020.

[2]The Claimant’s application to amend his pleaded case on disability to include other conditions including anxiety, depression, stress, bradycardia is refused.

[3]All disability discrimination claims are dismissed.

[4]The following claims are dismissed upon withdrawal:a. Claims brought under TUPE 2006 and section 103(1)(b) of the Employment Rights Act 1996.

b. Equal pay claim brought under section 65, 66 EqA by comparison with Lydia Ho, Maura O’Sullivan, Belinda Hudson.

c. All claims of direct age, race and sex discrimination under section 13 of the Equality Act 2010: i. Claims based on lack of promotion in comparison with Luke Corrie, Mandy Latter, Kristian Moller-Butcher, Karen Owen, David Tillings, Elizabeth Bumpus, Vanessa Soh, Mathew Smith, Chris Nicholson, Francesca Birkby, Paul Fenton, Tony Syson, Ian McCall, Filippos Niforas, Karen Owen, Nicolette Fourie; 1 of 3 ii. (Race) claims based on lack of severance package on 15 July 2020 in comparison with Jonathan Gully, Deborah Cowles, David King, Sarah Cawthra, Angus MacGregor, John Davies, Gareth Butler, Martin Ward & Vanessa Soh;

d. Issue 4(c) direct age discrimination reducing pension contributions from 1 July 2019;

e. Issue 7(g) direct race discrimination in relation to voluntary redundancy between 31 May 2019 – 31 August 2019;

f. Issue 9(g) direct sex discrimination in relation to voluntary redundancy between 31 May 2019 – 31 August 2019;

g. Issue 9(h) direct sex discrimination in relation to severance package 15 July 2020;

h. Issue 18(a) harassment in relation to an email dated 14 January 2016.

[5]The following claims are struck out as having no reasonable prospect of success pursuant to rule 37(a) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 ("the Rules"):a. Issues 44 & 45 - unauthorised deductions from wages – claim for overtime;

b. Equal pay claim brought under section 65, 66 EqA by comparison with Employees A, B & C [names anonymised, key provided to the Claimant in correspondence] in relation to years 2014, 2015 and 2016 only.

[6]Deposit orders under rule 39 of the Rules have been made in a separate order.

[7]No order is made in respect of the following allegations:a. EqA equal pay claim by comparison with i. Allison Lacey Norris; ii. Cheryl Bagot from 1 January 2017 onward; iii. Alexia Sidders from 1 January 2017 onward; iv. Misako Brown; Vanessa Illich; v. Carrie Williams;

b. Issue 7(i) race discrimination – ignored requests new equipment;

c. Issue 22(e) victimisation – severance package;

d. Issue 22(f) victimisation – delayed appeal;

e. Issue 26(a) health & safety detriment – failure to carry out risk assessment for 8 months from April 2019 – 14 January 2020;

f. Issue 33(b) protected disclosure detriment – deprived of severance package;

g. Issue 46 - claim for holiday pay. 2 of 3

REASONS

The law

[1]By a letter dated 22 March 2022 the Respondents applied for a costs order pursuant to rule 76(1)(a) and (b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. The application for costs

[2]The Respondents’ arguments on costs are set out in the application letter dated 22 March 2022, to which is appended an appendix of some 10 pages. That has been supplemented orally in the hearing by Ms Barsam. - 1 -

[3]The application for costs has been supported by a Statement of Costs dated 22 March 2022 which comes to a grand total of £279,170.90. The nature of the exercise facing me does not involve assessing whether that figure has been reasonably occurred.

[4]The amount of costs is capped by the Respondents pragmatically at £20,000 being the maximum that the Employment Tribunal may award without detailed assessment. It is acknowledged that the Claimant is a litigant in person who has represented to the Employment Tribunal that he has limited financial means.

The law

[5]In very summary terms the basis for the costs application is first under rule 76(1)(a) unreasonable conduct, specifically: failing to articulate the claims; the necessity for multiple hearings to understand the Claimant’s claims; the shifting nature of the claimant’s claim, a last-minute alteration of list of issues; despite the fact that there was a direction for him to do this at an earlier stage; non-compliance with tribunal orders in relation to the list of issues and disability; failure to provide proof of financial means; inappropriate applications and lack of cooperation over simple arrangements for delivery of documents.

[6]Secondly pursuing claims which have no reasonable prospect of success under rule 76(1)(b): specifically late withdrawal of claims that had no reasonable prospect of success; claims which were withdrawn following the deposit order being made. The Claimant’s response

[7]The Claimant opposes all aspects of the Respondents’ application, in a 13 page letter of objection which is undated and in oral submissions.

[8]Among his submissions are that: 8.1. Time was wasted at the hearing in March 2021 by the Respondent providing a Scott Schedule in portrait instead of landscape with columns not visible. 8.2. The Respondents have sought to create as much confusion and drama as possible. 8.3. The Respondents asked for information, receive it, ask for more, receive it and then complains that it has received the information it asked for. 8.4. He is perplexed by the increase of a costs bill said to have been £100,000 in November 2021 and then somewhere this £300,000 in January 2022. 8.5. The Respondents have created a “trapdoor” whereby if he streamlines his claim they want costs and if he pursues his claim they want costs. 8.6. The Respondents initially suggested interest in a judicial mediation but then changed track and said they didn’t want this and wanted further case management before mediation. - 2 - 8.7. The Respondents have caused issues wasted time and increased costs by arguing with him about which documents need to go in bundles.

[9]While I would not have use precisely language that the Claimant has used, as a matter of impression there is some truth in what he says. The Respondents have been faced with the difficulty of a large and poorly explained claim and a Claimant whom it perceives, with some justification, has been uncooperative.

[10]The approach of the Respondents has occasionally appeared to me to place a greater focus on showing the Claimant in a bad light than on progressing the litigation.

[11]It is unfortunate feature of this litigation that neither side trusts the other and cooperation generally seems to be in short supply. History

[12]There has been a fairly lengthy procedural history to this matter.

[13]The Claimant’s employment with the First Respondent commenced in January 2011. The First Respondent provides financial securities products. The Claimant was employed initially as an Analyst, thereafter as an Assistant Vice President, from 1 January 2011 until 15 July 2020. He worked in the Information and Data Management Department.

[14]The Claimant was dismissed on 15 July 2020 purportedly for an extended period of unauthorised absence.

[15]On 9 October 2020 the Claimant presented a very large number of claims, relating to the period April 2014 to July 2020 including inter alia unfair dismissal, age, race, disability and sex discrimination; claims under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) and equal pay. February 2021 hearing

[16]At a preliminary hearing on 8 February 2021 with Employment Judge Stewart it was not possible to complete a list of issues. That hearing was held by Microsoft Teams, with the Claimant joining by mobile telephone.

[17]Judge Stewart listed a full merits hearing commencing 23 July 2021. She ordered “all communications with the Claimant will be by post or telephone”.

[18]She noted: “1. The Claimant is a litigant in person with no previous experience of Tribunal process and procedure. He states that he has no email address or Internet connection at home and insists on being indicated with by ordinary letter mail. He says he is not prepared to meet with couriers on his doorstep due to the covid pandemic risks and has also resisted having to sign for registered/recorded/special delivery mail. The Respondent states that a career with a bulky document package was sent away from - 3 - the Claimant’s address and that a special delivery mailing was not accepted and has been returned to the local depot. 2. The Respondent states that confidential letters and documents containing personal and private data about the Claimant and confidential business material are not appropriate to be delivered by ordinary post and required special delivery. The Claimant agreed today to go to the postal depot and to collect the document bundle awaiting him there. 3. The Claimant also stated that he was unable to use computer screens to read because he suffers from serious headaches. He will attend a hearing in person or by telephone.” [emphasis added]

[19]The judge emphasised to the Claimant that he would be greatly assisted by being able to obtain some legal advice and support. The Respondent had found it already sent him a list of possible organisations from which he might obtain advice.

[20]Unfortunately the Claimant has not as far as I am aware taken any legal advice. March 2021 hearing

[21]At a further preliminary hearing on 10 March 2021, the matter came before me in a hearing listed for one day.

[22]Despite spending an entire day it was not able to complete a list of issues. We grappled with elements of the claim that was set out in the following documents: 22.1. ET1/claim form in which scant information is given, but a long list of Tribunal jurisdictions engaged is given. The Claimant has ticked “no” to the question do you have a disability at box 12.1. 22.2. A “Scott Schedule” of some 17 pages containing 97 separate allegations, many of which fall under several of the Tribunal’s jurisdictions. This has been provided by the Claimant under cover of letter dated 30 November 2020 in response to a request from the Respondent. Unfortunately the version of the hearing bundle provided to me in advance of today’s hearing did not have all of the columns visible. 22.3. A letter dated 22 January 2021 entitled “Further claimant particulars – short story”, which is 8 pages of close type. 22.4. A further letter dated 22 January 2021 entitled “Further claimant particulars – full story”, which is 28 pages of close type. 22.5. A letter dated 6 February 2021 in which he asserted that he was disabled by virtue of headaches, and provides some particulars of that alleged disability. 22.6. A document headed “particulars of claim” dated 1 March 2021, which is 145 pages in length. The factual narrative in this document was quite well structured and accessible. This document purported to bring claims - 4 - under a very large number of statutory provisions, some of which fall outside of the Tribunal’s jurisdiction.

[23]Attempting to go through the individual allegations in that hearing was extraordinarily slow. Unfortunately after three hours of the hearing, we had only reached item 8 in the Scott Schedule containing 97 items.

[24]It was clarified at that stage that claims were being brought under the following jurisdictions: 24.1. Equal pay (s.65 and s.66 of the Equality Act 2010 (“EqA”)); 24.2. Direct age discrimination (s.13 EqA); 24.3. Direct race discrimination (s.13 EqA); 24.4. Direct sex discrimination (s.13 EqA); 24.5. Disability discrimination, specifically failure to make reasonable adjustments (s.21 EqA); 24.6. Victimisation (s.27 EqA); 24.7. Detriment because of protected disclosures (section 47B of the Employment Rights Act 1996 (“ERA”). 24.8. Unfair dismissal (s.98 ERA); 24.9. Automatic unfair dismissal (s.103A ERA); 24.10. Unauthorised deduction of wages (s.13 of ERA); 24.11. Failure to consult (reg 13 TUPE).

[25]In that hearing I explained to the Claimant that it was his right to bring claims under a very large number of the Tribunal's jurisdictions. I also mentioned that this is likely to result in a large amount of Tribunal time and that the Respondent might seek to pursue him for legal costs if a large amount of time was taken up dealing with claims that are found to have no reasonable prospect of success or are unreasonably pursued, and in particular pursued after a deposit order is made (rule 76(1) & (2) and rule 39(5)).

[26]It was clear based on the documents referred to above that the Claimant had access to word processing facilities in preparation of his claim having produced several hundred pages of pleadings and correspondence. I discussed with him whether he would accept an electronic draft from the Respondent by email, or alternatively if he would prefer not to use email, by a ‘memory stick’ to facilitate production of a joint updated list of issues. He declined to do this. The result was that the joint updated draft list of issues would have to be produced by exchange of post. In fact this never happened. June 2021 hearing

[27]A brief hearing took place on 10 June 2021 in front of Employment Judge Spencer at which the possibility of judicial mediation was considered. Case management order

[28]By paragraph 4 of an order dated 15 June 2021 and sent to the parties on 16 June 2021 I noted that there had been non-compliance possibly explained by the Claimant indicating interest in judicial mediation. I ordered that the Claimant provide to the Respondent any proposed additions to the updated draft list of - 5 - issues indicating clearly where those additions should go and referencing line numbers in the Scott Schedule and page number in the Particulars of Claim. It is unclear to me that this order was complied with. July 2021 hearing

[29]At a hearing on 19 – 20 July 2021, I granted the Claimant’s application to add the Second Respondent (an application to add other parties was refused).

[30]Much of the remaining two days were spent trying to identify the list of issues. A further hearing was then listed in January 2022, to determine disability, strike out and deposit order.

[31]The order sent out had a 13 page list of issues attached. Under paragraph 8 the parties had 7 days to write to the Tribunal and the other party in the event that this order was wrong. The Claimant did not do this but nevertheless sought to argue approximately six months later, part way through the four day hearing in January 2022 that this list of issues did not correctly reflect his claim, as became clear from an application made on 17 January 2022. Delivery attempts

[32]By way of example, as documented in a letter from the Respondents dated 9 November 2021, on 29 September 2021 the First Respondent sent a letter to the Claimant. Delivery was attempted on 30 September 2021 and remained available for collection from Royal Mail until 19 October 2021. It was returned to the Respondent’s solicitor as the time for collection had passed.

[33]The Respondent sent a draft hearing bundle index on 29 October 2021 with documents relevant to the strike out application. The delivery was attempted but failed on 29 October 2021. By 9 November 2021 when the Respondent wrote further to the Claimant he had not collected that document. It was explained to him in that letter that it was not possible to deliver bundles by conventional Royal mail post since they were not fit through the letterbox and contain confidential information. Further, as highlighted in this letter the Respondents were incurring time and costs dealing with his position with regard to documents. January 2022 hearing

[34]At the request of the Respondents, realistically, this hearing was extended to a four-day hearing on 13, 14, 17, 18 January 2022.

[35]In the January 2022 hearing the Respondents complained through counsel about the Claimant’s conduct in refusing to accept hearing bundles.

[36]The Claimant’s application dated 17 January 2022 to amend the list of issues was granted part and refused in part. Approximately three quarters of that application succeeded. Despite the fact that the Claimant had not written within 7 days of the order being sent out following the July 2021 hearing, I considered it was in the interests of justice to ensure that the list of issues reflected the claim that the Claimant was trying to bring. - 6 -

[37]Two claims were struck out, namely issues 44 & 45 - unauthorised deductions from wages – claim for overtime and equal pay claim brought under section 65, 66 EqA by comparison with Employees A, B & C [names anonymised, key provided to the Claimant in correspondence] in relation to years 2014, 2015 and 2016 only.

[38]Additionally, deposit orders were made in respect of 34 separate allegations.

[39]During the course of this hearing the Claimant made a number of concessions and withdrew some elements of his claim.

[40]At that hearing I clarified that delivery by Royal Mail Special Delivery was a reasonable method for the Respondent to send documents to the Claimant given that it was confidential information, and if the Claimant refused to sign the documents he would be expected to attend the Respondents’ solicitor’ office in person, or find a way of accepting documents electronically. Deposit order

[41]The Claimant paid deposit orders in respect of 11 of the allegations, with the result that a further 23 allegations were struck out by operation of rule 39(4) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 ("the Rules"). Application to amend the list of issues/deposit order

[42]By an application dated 24 January 2022 in a four-page letter the Claimant sought to make further alterations. I granted this application in respect of a single point, but refused the remainder, in a letter dated 2 March 2022. A certificate of correction and amended order was sent to the parties. Correspondence regarding list of issues

[43]By a 3 page letter dated 7 March 2022 the Claimant requested a series of alterations to the list of issues on the basis that these changes had been agreed but not reflected in the list of issues. April 2022 hearing

[44]At a hybrid hearing on 19 April 2022 I made case management orders, listing this matter for a 15 day final hearing in January-February 2023. In that hearing the Respondents’ costs application was heard and the decision in respect of costs was reserved.

[45]Also at this hearing we finalised and I approve the list of issues. The Respondents wisely did not pursue a potential further strike out application that had been mentioned in January 2022. - 7 -

Procedure

[46]I have received submissions from both parties in respect of the Respondents’ application for costs. The Law

[47]Rule 2 provides 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co- operate generally with each other and with the Tribunal. (emphasis added)

[48]Rule 76 provides: When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success. - 8 -

[49]The following propositions relevant to costs may be derived from the case law:

[50]There is a two-stage exercise to making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether the discretion should be exercised to make order (Oni v Unison ICR D17).

[51]Costs orders in the Employment Tribunal are the exception rather than the rule (Gee v Shell

[2003] IRLR 82

, Lodwick v Southwark

[2004] ICR 844

[52]The fact that a claimant has withdrawn a claim does not mean that there has been unreasonable conduct. Claimant should not be deterred from appropriately withdrawing claims. Withdrawal can sometimes save costs and in some cases might be the “dawn of sanity” (per Mummery LJ paragraph 29 in McPherson v BNP Paribas

[2004] EWCA Civ 569

;

[2004] ICR 1404

). On the other hand, as Mummery LJ also recognised that tribunals should not follow a practice on costs which might encourage speculative claims, by allowing applicants to start cases and pursue them down to the last week or two before the hearing in the hope of receiving an offer to settle, and then, failing and not receiving an offer, dropping the case without any risk of a costs sanction (para 29). A sudden withdrawal without good reason can amount to unreasonable conduct. In that case M withdrew his claim 18 days before the hearing on the basis that the stress of the litigation was having an effect on his health. While the tribunal was entitled to make a costs order, the order that M pay the whole of the respondent’s costs of the litigation was wrong.

[53]In McPherson, Mummery LJ held that a Tribunal should in deciding whether to make an order for costs, an Employment Tribunal should take into account the “nature, gravity and effect” of the putative paying party’s unreasonable conduct.

[54]In Yerrakalva v Barnsley MBC

[2012] ICR 420

Mummery LJ said: “7. As costs are in the discretion of the employment tribunal, appeals on costs alone rarely succeed in the Employment Appeal Tribunal or in this court. The employment tribunal's power to order costs is more sparingly exercised and is more circumscribed by the employment tribunal's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the employment tribunal costs orders are the exception rather than the rule. In most cases the employment tribunal does not make any order for costs. If it does, it must act within rules that expressly confine the employment tribunal's power to specified circumstances, notably unreasonableness in the bringing or conduct of the proceedings. The *423 employment tribunal manages, hears and decides the case and is normally the best judge of how to exercise its discretion.”

[55]While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. In Yerrakalva Mummery LJ said: - 9 - “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.”

[56]While the threshold tests for making a costs order are the same whether or not a party is represented, in the application of the tests it is appropriate to take account of whether a litigant is professionally represented or not. Litigants in person should not be judged by the standards of a professional representative (AQ Ltd v Holden

[2012] IRLR 648

). Conclusion WHETHER COSTS JURISDICTION INVOKED Rule 76(1)(a) UNREASONABLE CONDUCT Failure to articulate claims

[57]The Respondents submit that the Claimant failed to pinpoint his claims with precision despite encouragement from more than one Employment Judge. It is said that they have incurred substantial costs in analysing the ever shifting and non-exhaustive complaints across a wide-ranging of voluminous submissions and documents. These are to some extent set out above in my procedural history.

[58]The Claimant argues that he has been requested by the Respondents to provide more and more detailed “further particulars” documents, which he has done as a litigant in person and has then been criticised for providing this extensive detail as requested.

[59]The pattern of several of the hearings before me is that the documents which identify the claim which are written in terms that both the Respondents’ legal team and myself have found somewhat puzzling. During the course of the hearing the claims been explained by the Claimant orally such that they make sense, at least in concept. He has often referred to several documents of the pleadings collectively to explain what he means. This has been at times a frustrating and time-consuming process. - 10 -

[60]I have considered carefully whether the Claimant has been deliberately obtuse in the way that he has articulated his claims in writing. The Claimant is an intelligent person and has quite deliberately chosen to bring a large number of claims. As to the articulation of those claims however, I have concluded that he has not been deliberately obtuse. I do not consider that he has unreasonably failed to articulate the claims, but rather he has struggled to articulate his claims succinctly in a format that lawyers and judges would recognise. This is because he is not a lawyer, not because he is trying to be deliberately obtuse. I take account of the fact that a litigant in person should not be judged by the same standards as a lawyer AQ Ltd v Holden.

[61]The Respondents point out that they offered on 23 April 2021 to pay £2,000 plus VAT toward the Claimant’s legal costs, and have tried to direct him towards free sources of legal advice as has at least one Employment Judge. It is a pity that the Claimant seems not to have taken legal advice, especially when was being offered the opportunity free advice on this basis. A lawyer independently instructed would have a professional obligation to the Claimant irrespective of whether the source of the funding. It is unfortunate that this offer was not taken up, as a few hours of an independent lawyer’s time might have helped the Claimant refine his claims to those with better prospects and saved time for both sides and costs for the Respondents.

[62]Does it follow that the Claimant was unreasonable not to take up the offer of £2,000 toward an independent lawyer? The Employment Tribunal from its inception as the Industrial Tribunal was and is intended to be a less technical forum in which parties are not obligated to be represented by professional advisors. In very many cases one or both of the parties has no legal advisor. I would be reluctant to come to a conclusion that failing to instruct a lawyer was unreasonable. I do acknowledge however that the Claimant has chosen to bring a plethora of claims, some of which are complex and somewhat technical.

[63]That the Claimant might have been better advised to take some advice and better advised as a result of having taken such advice does not in my judgment necessarily lead me to a conclusion that he has been unreasonable in not taking advice. Finding an advisor in employment law who is competent in that area, who was available to meet with the Claimant during the pandemic, who charged affordable fees and with whom the Claimant could develop a rapport and sufficient trust I suspect would not have been a straightforward business. I am conscious of the fact that during periods during which this litigation has been running government advice has been directed toward minimising contact with others. The Claimant reports difficulties using screens which would likely have precluded video conferencing and appears to have a degree of nervousness about Covid transmission risk.

[64]In conclusion I do not find that the Claimant has been unreasonable in failing to take legal advice. Multiple hearings to understand Claimant’s claims

[65]The Respondents point to the number of hearings required to understand the Claimant’s claims. - 11 -

[66]Progress has been extraordinarily slow. In most cases it is possible to identify what the claim is about at the first preliminary hearing and the matter is listed for a final hearing. More rarely a second hearing is required either for further particulars or to clarify some points. To spend seven days in this way is exceptional, a point made in the Respondent’s submissions.

[67]The number of hearings in this case is largely a function of the difficulty in understanding the lengthy process described above. Again I have considered whether the Claimant has been unreasonable in this respect. For the reasons given above under ‘Failure to articulate claims’ I consider that he has not been. Efforts to recast claims

[68]It is argued that the Respondent faced a “shifting landscape” in which the Claimant was reformulating the claims. Specific examples given are in relation to the claim of disability: 13 November 2021 the Claimant served 75 pages of documents.

[69]Taking this specific example, I do not consider it was unreasonable for the Claimant to serve all of the documents he had which he thought might show that he was disabled. He was seeking to show disability looking at his medical picture more broadly than had been captured in a previous hearing.

[70]The Claimant applied to amend the definition of disability in his claim to include anxiety, depression, stress, bradycardia as well as headaches. I did not allow this application, but I did not consider it unreasonable for the claimant to seek to prove he had a disability in this way. It seems to me it was reasonable of him to put forward all evidence in his possession relating to his contention that he was disabled. A clip of 75 pages in the context of this litigation is not in itself unreasonable. I do not accept this argument.

[71]As to the list of issues the Respondents point out that at the hearing in January 2022 a sizeable portion of this hearing was devoted to dealing with new comments on a list of issues which had been sent out with the order of 21 July 2021 with a request that the parties write in to the Tribunal within 7 days. I have dealt with this below.

[72]The Respondents say that they wasted costs in dealing with claims that the Claimant was not in fact pursuing. For example Filippos Niforas had not harassed the Claimant by email dated 14 January 2016, but rather the Claimant reported the harassment to Filippos Niforas on that date. It became clear that the specific allegation regarding Filippos Niforas was a misunderstanding, which is frustrating but not unreasonable itself.

[73]It is argued that the Respondents wasted time producing a witness statement support of the application to strike out. I have dealt with the effect of the claims struck out separately below.

[74]Part of the problem in this case is that the Claimant finds difficult to express himself in a easily understood way in writing and tends to be better understood following a discussion in the hearing. - 12 -

[75]I acknowledge and understand the Claimant’s submission that he been asked to provide more and more particulars and than is criticised when these seem difficult to understand or overly elaborate. That to some extent because of the process not him and is because he is a litigant in person.

[76]On balance I do not consider that what the Respondents have characterised as “recasting the claim” amounts to unreasonable conduct. The Claimant has been faced with requests for further particulars. Unfortunately, in my experience some litigants in person when faced with this kind of request simply generate more and more material and do not understand that what they’re being asked to do is to be specific about the claim that they have already made.

[77]I do not find that the costs threshold is crossed in respect of these matters. NON-COMPLIANCE –

[78]It is said that the Respondent were put to significant additional time and costs by the Claimant’s repeated and deliberate non-compliance with Tribunal orders. Specifically: Disability documents

[79]The unless order application made on 23 April 2021 also mentioned the failure of the Claimant to provide documents relating to disability, which he had been ordered to do so by 21 April 2021. In fact he only provided documents by 25 June 2021, which is no doubt frustrating for the Respondents.

[80]It is unclear to me how this delay in itself has caused the Respondent to incur additional cost. I have also taken account of the fact that my experience in other litigation in the last two years is that medical practitioners are especially stretched due to the direct and indirect effects of the pandemic. Obtaining medical documents has taken even longer than usual.

[81]I do not consider that the Claimant was unreasonable in this respect such as to lead to the making of a costs order. Failure to provide proof of financial means

[82]The order dated 15 June 2021 and also the Notice of Preliminary Hearing dated 17 June 2021 contained “the Claimant will be expected to produce a signed witness statement explaining his financial means (e.g. his approximately common outgoings) if you wishes this to be considered under rule 39 (2).”. The Respondent reminded the Claimant of the on 29 October 2021 and 30 December 2021. Again during the hearing on January 2021 the Claimant was reminded that he ought to provide evidence if he wished to rely upon this as a reason to modify the level of any deposit order.

[83]The Claimant ultimately did provide an ATM print out showing the balance in his current account.

[84]The fundamental problem with this part of the application is that, as I identified in the order dated 2 March 2022, the order and notice in June 2021 were expressed - 13 - in optional terms. There was no requirement on the part of the Respondent to chase the Claimant.

[85]I do not consider that this amounts to non-compliance, and make no costs order in respect of this point. Inappropriate applications

[86]It is argued that the Claimant made five applications which were inappropriate, specifically:

[87]On 30 November 2020 an application for unless order, accompanied by 500 pages of disclosure documents which was said to be premature. It seems to me that premature disclosure should not in itself cause the other party to incur costs, since they can simply hold onto that disclosure until the time comes for mutual exchange.

[88]On 22 January 2021 an application for extension of time without adequate specifics and repeated an application an unless order. Given that the Respondent had themselves recently made an application for extension of time, and that the Claimant is a litigant in person I do not see that this crosses the threshold for making a costs order.

[89]On 17 March 2021 an application to join multiple Respondents, which he failed to mention at the first Preliminary Hearing on 8 February 2021 and failed to copy the First Respondent in his original application on 16 February 2021. I note that the Claimant was partly successful in this application in that permission was granted to join an additional respondent. Bearing in mind this success and that the Claimant is a litigant in person I do not see that this crosses the threshold for making a costs order.

[90]On 16 April 2021, rather than sensibly engage with the process of agreeing the list of issues the Claimant sought to vacate the hearing is listed for 10 June and 19 – 20 July 2021 in favour of a six-day hearing to agree the list of issues. In my view the Claimant’s approach to the list of issues has been unhelpful, as considered further below.

[91]Pursuing an application to amend his claim at the hearing commencing on 13 January 2022, having registered no concerns about the list of issues produced after the hearing in July 2021. I do not consider that making an application to amend his claim was in itself unreasonable, but failing to raise difficulties with the list of issues in July 2021 on good time I consider has contributed to delay and required additional Tribunal case management time. Failure to co-operate bundles for hearings

[92]The Respondents point out that the Claimant has refused open the door to couriers and has refused to collect items sent by special delivery. In this respect it was said that the hearing of 8 February 2021 was largely unproductive because the Claimant refused to accept the bundle and sent a courier away. Bundles sent to the Claimant were returned from late September 2021 onward. The Respondents say they have incurred substantial costs not only failed courier costs and special - 14 - delivery costs but making a spare set of bundles available for collection. There was a failure to cooperate with the bundle for January 2022 hearing. The Claimant has refused to accept delivery by courier, so that documents must be sent in standard post.

[93]The Respondent says that the Claimant has offered no explanation. That is not quite accurate. At the hearing with Employment Judge Stewart the Claimant suggested that he had a concern about opening the door to a courier because of concerns about Covid-19. When I asked him about his reasons in the hearing on 19 April 2022, he said that there is a reason but he could not tell me.

[94]I accept that the Claimant has suffered from a measure of anxiety about Covid-19. He has for example attended all hearings before me with a facemask, which was unremarkable and in keeping with most people in public places during the course of 2021. By April 2022 this was slightly less common, though I acknowledge that a small minority of people continue to wear masks in public places and public transport. He has not sought to argue that he is clinically extremely vulnerable or that he has anxiety to an extent that would prevent him from signing for a parcel.

[95]Do I accept that this is the reason why the Claimant has failed to either accept signed for delivery or failing that to attend to pick documents up? He declined to give an explanation to me. I take account of the fact that he has chosen to attend case management hearings in person in Central London in a public building on 7 different days in the last 13 months at a venue some 7-8 miles away from his home in North London. This requires him to come into a public building, pass a reception area with security guards with a signing in procedure and then find his way to hearing room in which he has spent the majority of the day with myself and the Respondents’ lawyers. I do not accept that to answer a door to a courier, which is on any view an interaction of a few seconds on a door step is comparable.

[96]I have come to the conclusion on the balance of probabilities that the Claimant has deliberately refused to accept delivery of documents from the Respondents and refused to attend to pick the documents if he could not answer the door. He agreed with Employment Judge Stewart that he would pick up documents.

[97]Under rule 2 of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 ("the Rules") parties are required to cooperate. I drew this to the Claimant’s attention in an order sent on 12 March 2021. I find that the Claimant’s refusal in this respect amounted to a lack of cooperation and was unreasonable.

[98]I accept the submission put forward on behalf of the Respondents that the Claimant’s motivation was (at least in part) to cause inconvenience and expense to the Respondents.

[99]The effect of this Claimant’s action has been to cause unnecessary costs to the Respondents and marginally lengthen what has been a protracted phase of case management in this case. - 15 - Failure to co-operate: list of issues

[100]It is argued that the Claimant has failed to accept electronic communication which has led to cost and confusion as a result of the very slow progress with the updating of the list of issues.

[101]The Claimant did explain to the judge at the first case management hearing that he would only be communicated with by telephone and by post and that he has no email address for Internet connection at home. He explained to Employment Judge Stewart that using screens caused headaches. I note that the Claimant in his claim form submitted on 9 October 2020 said that he would prefer to be contacted by post. That was his preference regarding communication with the Tribunal.

[102]The Claimant plainly has access to word processing facilities. He has as I have detailed above, produced substantial documentation using word-processors during the course of this litigation. The Claimant mentioned that someone helps him with this. He can print hard copies. I have seen documents provided in hard copy to the Respondents and hard copies printed and produced to me during hearings. If he did not wish to read documents on the screen, he could at least do this.

[103]The claim for submitted in October 2020 contains some particulars. There is a schedule of 17 pages. There are numerous letters to the Tribunal and the Respondent. There is the particulars claim document 145 pages dated 1 March 2021. The documents must have required hours and hours of preparation.

[104]I gave the Claimant the option to either receive documents electronically by email or alternatively via a memory stick. He refused either approach.

[105]The Claimant says that he does not have email, which is surprising, but I cannot find that this is unreasonable in itself, and do not have an evidential basis to find that he has not told the truth about this.

[106]I do find however that the Claimant’s refusal to engage with the exercise of refining the list of issues outside of hearing has marginally added to the amount of time that this case has spent in the case management stage. It seems to me that this is a breach of rule 2 that the parties must cooperate with each other and the Tribunal. I find that this was unreasonable and did cross the threshold for making a costs order. NO REASONABLE PROSPECT OF SUCCESS

[107]The Respondent argues that the following matters had no reasonable prospect of success and apply for their costs under rule 76(1)(b). Late withdrawal of claims

[108]The Respondent argues that the Claimant waited until the hearing on 13 – 18 January 2022 before withdrawing a significant number of claims which have been pursued for in excess of the year. It is argued that the Respondent had already - 16 - incurred the costs associated with applications for strike out/deposit orders and updating the grounds of response.

[109]It is said that the Claimant “casually” withdrew the claims, at the January 2022 hearing in particular – claims under TUPE; Equal pay claims brought against Lydia Ho, Maura O’Sullivan and Belinda Hudson; claims of direct age, race and sex discrimination in relation to 16 named comparators; claim of direct age discrimination in respect of reducing pension contributions, which the Respondent had explained could not succeed due to a specific statutory exemption; direct race and sex discrimination in relation to voluntary redundancy, which were re-cast at the January 2022 hearing as indirect discrimination complaints; direct sex discrimination claim in relation to severance package, in respect of which the First Respondent submitted witness evidence; harassment in relation to an email dated 14 January 2016.

[110]Although this has been characterised by the Respondents’ representative as a “late” withdrawal, although the litigation has been ongoing for some time, the Respondents have not yet been put to the time and expense of preparing for a final hearing, although I acknowledge that they have incurred expense responding to these elements. This is not a withdrawal made at the door of a final hearing when practically all costs have been incurred.

[111]While it may have been ill-advised to bring so many claims in the first place, I have borne in mind that the Claimant is a litigant in person who should not be judged by the standards of a professional representative. He has not brought these claims with the benefit of legal advice. I have considered the guidance of Mummery LJ in the case of McPherson.

[112]The Claimant has, in my view appropriately, responded to the process of judicial analysis of his claims as part of the processes of strike out and deposit and voluntarily withdrawn substantial parts of his claim. I would characterise this as a “dawn of sanity” situation rather than unreasonably and speculatively pursuing a claim until the last moment in hopes of a settlement.

[113]It follows that I do not make a costs order in respect of this withdrawal. Strike out

[114]At the January 2022 the following claims were struck out as having no reasonable prospect of success:(i) claim for unauthorised deductions from wages - claim for overtime;

(ii) equal pay claim brought under section 65, 66 EqA by comparison with Employees A, B & C in relation to years 2014, 2015 and 2016 only. In respect of the first of these claims the Respondent make the point that there was no contractual entitlement and any one of the free sources of legal advice to which he was directed could have explained that in minutes. As to the second of these claims the argument is made that this related to certain comparators who were paid the same less than the Claimant in specific years requiring witness evidence and supporting HR data.

[115]The basis for the decision to strike out these claims was that they had no reasonable prospect of success. This falls squarely within rule 76(1)(b). - 17 -

[116]It seems to me that the threshold for making a costs order has been met in respect of these two parts of the claim. Deposit orders

[117]Finally the Respondents highlight that the Claimant did not pay deposits in respect of 23 of the 34 allegations in which I made a deposit order.

[118]I take a similar view to these claims to the arguments about “late withdrawal”. Again my finding is that the Claimant has responded to the deposit order process and made his own analysis of which of the 34 allegations he wishes to pursue. He may of course still face costs sanctions in respect of the 11 allegations which he has chosen to pursue should these allegations not succeed at the final hearing.

[119]In respect of the allegations he has withdrawn, again I feel that this falls into a “dawn of sanity” sort of situation and do not feel that the threshold for making a costs order is passed. WHETHER APPROPRIATE TO MAKE A COSTS ORDER

[120]The costs jurisdiction has been invoked under both rule 76(1)(a) unreasonable conduct and rule 76(1)(b) no reasonable prospect of success, to the limited extent set out above. Much of the application for costs, which was itself on the long side, I have dismissed.

[121]I have separately considered whether I should make a costs order at all.

[122]I have taken some account of the fact that there has been more than one occasion during the course of this litigation on which the Claimant has rightly queried the content of the list of issues, for example to ensure that effect was given accurately to the discussion on and the Respondents have not given due consideration to the point he has raised.

[123]I do however consider it is appropriate to make a costs order, given that there are elements of the claim pursued by the Claimant that had no reasonable basis at all and my finding that the Claimant has deliberately failed to cooperate in respect of the delivery of bundle and in the refinement of the list of issues.

[124]I have borne in mind Mummery LJ’s guidance in Yerrakalva that a precise causal link between unreasonable behaviour and specific costs is not required, but that causation is not irrelevant. I have not attempted to precisely attribute costs to the Claimant’s conduct and the claims which had no reasonable prospect of success.

[125]The specific claims that I found to have no reasonable prospect of success and the lack of cooperation outside of hearings in refinement of the list of issues can only amount to a small part of the Respondents’ costs bill, the greater part of which has been incurred due to the size, scope and complexity of the claim and the fact of the Claimant being a litigant in person. I suspect that even if the Claimant had tried to cooperate with refining the lists of issues, the product would still have required some judicial attention at a case management hearing. I feel that it is fairly safe to conclude that at least two of the seven days spent in case management would not have been required had the Claimant cooperated with the - 18 - list of issues exercise. Counsel’s refresher fees for are £2,500 per day, suggesting £5,000 of counsel’s fees that might have been saved.

[126]Given the nature of this exercise, I am not going to forensically analyse the costs schedule submitted. Based on the work that I think must have been done dealing with the lack of cooperation over bundles and in response to the two claims that were struck out, it seems fairly safe to conclude that at least £5,000 worth of solicitor’s fees have been incurred dealing with these matters. I recognise the true figure may be higher.

[127]It follows that at least £10,000 in my view can be attributed to the Claimant’s conduct and pursuit of claims with no reasonable prospect of success. I have not needed to be more precise, given my findings below. The Claimant’s means

[128]I find based on evidence in the bundle provided for the April 2022 hearing that the Claimant has in the region of £240,000 to £300,000 equity in a property, taking account of the likely value of the property and the outstanding balance of his mortgage. It is not necessary in the context of this public judgment to give the precise figures of the value of the house and the outstanding balance on his mortgage. I understand that the Claimant is not presently in employment. Conclusion

[129]I do take some account of the fact that equity in a property is not an “liquid” asset. I do not consider it would be just to make a costs order at a level that would inevitably force him to immediately sell his home, or make it impossible for him to pursue the remainder of his claims. On the other hand I consider it appropriate to make an order that is more than simply a trivial sum, given the costs of been incurred. The Claimant has chosen not to provide a great deal of detail about his financial circumstances. I have not concluded that he would be immediately be in a dire situation because of the making of a costs order. The Claimant was able to find substantial sum to pay part of the deposit order.

[130]I find that the just figure for the Claimant to contribute to the Respondent’s legal costs is £2,500.

The facts

[131]Between 7 and 13 February 2020 emails indicate that Mr Zemaitis attempted to order anti-glare and anti-blue light filters for Claimant (V5/154-156). However, someone called Ms Mace advised that they did not have blue-light screens, only anti-glare filters and privacy screens, so that was what was ordered. The Claimant’s position, which we assume to be correct, is that the anti-glare screen and privacy screen were one and the same thing. What it appears could not be obtained were the anti-blue light filters, and there is no evidence before us that Mr Zemaitis ordered a headset.

[132]In the meantime, and before he went on sick leave, on 20 January 2020 the Claimant had submitted a request through the system for a new desktop install (V5/33-36). The automated system notified Mr Niforas of this request on 20 and 25 January (V5/37 and 46), although, we cannot on the record of this request see on the Change History that it was at any point marked as requiring line manager approval (contrast, by way of example, those for Ms Bagot at V2/52 and V2/57, Mr Niforas’ own requests at V2/157 and V2/265, and Mr Nagi’s request at V2/234). The Notification History (V5/34) also contains no record of an email having been sent to Mr Niforas or even a “Team Assignment” (contrast that for Ms Bagot at V5/136 and that for Mr Brachi at V3/9C). The Claimant’s evidence is that he spoke to Mr Niforas about this request on 23 January, and we can see that he chased him in his subsequent email of 24 January 2020 (where he said that Mr Niforas had agreed to approve the request) which contained complaints about many other matters as we detail elsewhere. Mr Niforas did not reply to that email because he understood that Ms Owen was dealing with it. Mr Niforas’ evidence, both in his witness statement and orally was that this request was not approved because the Respondent was no longer issuing new desktops. However, from the documentary trail, it is apparent that this is something he learned only later in March when Mr Cullen contacted him about the request (see below). The precise sequence of events in relation to this request was not explored by the parties orally. Doing the best we can on the evidence we have, we find that although Mr Niforas was notified of the request by automated emails on 20 and 25 January and ‘chased’ by the Claimant on 23/24 January 2020, we find that Mr Niforas’ non-response to the Claimant’s - 44 - request in January 2020 is explained by a combination of his general practice of ignoring automated emails, and the fact that the Claimant’s oral and written ‘chasing’ of the request was done in the context of conversations and emails dealing with other matters in respect of which the Claimant had become very agitated and in respect of which Mr Niforas’ understood himself to be the subject of a complaint by the Claimant that Ms Owens was dealing with. We infer that Mr Niforas was at this point finding dealing with the Claimant difficult and decided to wait for guidance on all issues from Ms Owens.

[133]For some reason (again not explored in evidence, but possibly connected with the fact that this request does not seem to have started its course through the system in the same way as others we have seen), this request did not lapse automatically after 20 days, but was picked up Mr Cullen in facilities on 8 April 2020, who emailed the Claimant asking if the new desktop install was still required. He explained the Respondent was not issuing new PCs any more, but could issue something called a “wyse terminal”. Having got an out of office (or equivalent notification) for the Claimant (who was not in the office and not receiving emails), Mr Cullen then emailed Mr Niforas about the request. Mr Niforas agreed that Mr Cullen could cancel that request and raise a new request for the Claimant for a wyse terminal, which Mr Niforas then approved (V5/33-36), noting “Once we are back in the office your PC will be replaced with a Wyse terminal” (V5/329). The Claimant argues that this shows that Mr Niforas was willing to answer a request from a white person, but not from him. We disagree. What it shows is that Mr Niforas answered promptly a non-automated email about an equipment request, and arranged for equipment to be authorised for the Claimant, even though he is black, and even though he had not been at work for two months. Such action provides no basis for an inference of discrimination – quite the opposite, it shows that Mr Niforas is much more responsive to personal emails than automated emails and that, when approached in this way, he did action requests for the Claimant promptly.

[134]The Claimant argues that he was less favourably treated in relation to equipment requests than the following people, about which the evidence presented to us is as follows:a. Ms Bagot requested a new desktop install on 14 July 2015 and for whom equipment (PC/screens) was provided and not ignored (V2/50-53); likewise on 3 January 2019 (V3/314-316). Mr Niforas had no involvement in this;

b. Ms Sidders’ request on the same date was actioned (V2/54-58). Mr Niforas had no involvement in this;

c. On 21 September 2016 Mr Niforas requested a new desktop install and it was approved by his manager (V2/157);

d. On 3 January 2017, just before his official start date, Mr Nagi requested a new desktop install and Mr Niforas approved it, but Mr Cullen then rejected it as “not required” (V2/233); Mr Nagi on 20 July 2017 had his request for a new headset approved by Mr Niforas (V2/269-71); - 45 -

e. On 15 May 2017 Mr Niforas requested a new headset and it was approved by his manager (V2/256-66);

f. On 2 April 2019 Employee 10 requested a new desktop install (virtual terminal) and was granted it on approval by Mr Niforas (V4/173-175);

g. In November/December 2017, Mr Niforas approved Mr Brachi’s request (V3/7A-C and 9A-C) for a new large flat screen after being chased by Mr Brachi (V3/9B). A previous request by Mr Brachi on 3 November 2017 was rejected automatically because Mr Niforas did not respond within the 20 days.

[135]Mr Niforas in his witness statement explains that he receives a high volume of automated emails on top of hundreds of non-automated emails per day, and that it was hard for him to respond to the Claimant’s complaints about equipment as most were historic in nature. He denied that the Claimant’s race had played any part in his decision-making and stated that, as with Mr Brachi, if he missed someone’s request they would normally make it again. We also note that we are aware from the Claimant’s own case about what happened in January 2020 that Mr Niforas was a person who got frustrated by automated emails. He responded to Mr Cullen about the Claimant’s request when directly chased. We find as a fact that Mr Niforas’ working practices were such that he was more likely than not to ignore automated emails unless chased. 2019 voluntary redundancies

[136]On 30 May 2019 a voluntary redundancy programme was launched for Managing Directors and Directors in which they were given the option to accept voluntary redundancy by 5 July 2019 (V4/226-277 or 310). The reason for choosing Managing Directors and Directors was because the company had an excess of people at that level and wanted to recruit and retain more junior people (V4/266). 16 people (14 men and 2 women) accepted voluntary redundancy and there were then also some compulsory redundancies. The Respondent accepts that it has more male employees than female employees at Managing Director/Director level, and that black employees are also under-represented at that level. The Claimant, however, told us in evidence that he did not want to take redundancy as he did not want to leave the business and he accepted that this meant he was not disadvantaged by the Respondent’s actions in relation to voluntary redundancy. 2019 grievance

[137]On 6 June 2019 the Claimant submitted by hand to Ms Owen a 36-page grievance. This was concerned principally with the changes to employee terms and conditions that the Claimant had refused to sign, and the dualhatting arrangements that the Claimant had also refused to sign. The Claimant characterised the Respondent asking him to sign those new terms and conditions as bullying and harassment contrary to the Equality Act 2010 and the Harassment Act 1977, but did not suggest that race or sex was the - 46 - reason for the treatment. He complained that the new terms and conditions were more favourable to younger employees, and that his statutory rights to wages, holiday and pensions were being breached. He made clear that he was aware of his right to take a claim to the Employment Tribunal, and the three month time limit for doing so (V4/245). He complained about the selection of employee representatives for the consultation and alleged that the Respondent had “taken issue” with him for nominating himself as a representative (not a claim he has repeated in these proceedings).

[138]He stated his belief that, “anywhere one employee is entitled to receive more than another employee regardless of corporate title is discrimination” and asked “to be given the same notice period as the person with the longest notice period to ensure no discrimination occurs” and “the same rate of pay as a Director” for Weekend/Bank Holiday pay, thus “removing the discrimination”. He stated his belief that the Respondent would retaliate against him for raising issues. He asserted that the Respondent’s changed terms and conditions were not legally binding and that nor was the Respondent’s performance management process which he would henceforth refuse to participate in as already set out above. There was a brief complaint about lack of promotion, pay rise and reduced bonus payment and failure to respond to his requests for information. He made further requests for information, including for information about pay and compensation broken down to reflect age, sex, race, ethnic, origin, role, length of service (broken down for the current year and going back year-on-year for the last 10 years). We observe that most of his requests for information (including in particular the requests for information about pay) appear to have nothing to do with the grievances that he has raised (other than the passing reference to him not having had a pay rise). As part of the requests for information (V4/265), he mentioned that his workstation assessment had still not been carried out. He stated that the actions of the Respondent “have and continue to make me ill” and asked that the Respondent should “[nurse] me back to good health and [stop] practices which lead or will lead to poor health”.

[139]The grievance named the company and six individuals who are not the subject of allegations in these proceedings as being responsible for the matters about which the Claimant was complaining.

[140]The Claimant included by way of appendices to the grievance 369 pages of documents that we now have in GB1.

[141]The Claimant suggested in his covering letter that he was concerned that investigation into his grievance should be impartial and that if this was not done to his satisfaction it may be better to have an external independent third party review the grievance and look at the whole consultation process and act as mediator (V4/240).

[142]The Claimant’s grievance was marked “for your eyes only” and in block capitals made clear that Ms Owen was not authorised to distribute, copy, duplicate or share the grievance without seeking and gaining written approval from him. Ms Owen accordingly did not disclose the grievance to anyone - 47 - other than the Respondent’s lawyers and data protection officer for the purposes of taking legal advice. The Claimant has sought to suggest that Ms Owen may have shared his grievance more widely, but there is no evidence to support this and given how clear the Claimant was that the grievance was not to be shared by Ms Owen, we would have found it very surprising if she had shared it more widely as it would be obvious to most people that doing so would be likely to be unlawful (whether as a breach of confidence or a breach of data protection legislation).

[143]Ms Owen acknowledged the grievance the same day and indicated she would identify an independent person to hear it (V4/238). She explained in evidence that this was because of the size and complexity of the Claimant’s grievance, which she did not think could easily be dealt with by someone internal, and also because she considered that the Claimant would be reassured by having a third party (as he had suggested). She also gave him information about how to make a subject access request.

[144]By email of 24 June 2019 (V4/313), Ms Owen set out further details of the proposed grievance process and attached her attempt to summarise the grievance. She said she had identified an HR consultancy (Byrne Dean) as a suitable option and they had suggested Rachael Forsberg could act as investigator. She asked the Claimant to give consent to share his grievance with Ms Forsberg and whoever was in due course identified as the “Grievance Hearer”. She again outlined the process for making a subject access request. She explained how Ms Forsberg would proceed.

[145]The Claimant did not reply to this email until 24 July 2019. The Claimant confirmed that he did not authorise Ms Owen to share his grievance. He said he would not do so until he had been provided with the information he had requested. He also asked for more information as to the identity of the person to hear the grievance, and asked for Byrne Dean’s preliminary views on the grievance (V4/323). He objected to Ms Owen’s attempts at summarising the grievance and asked if ACAS could be used to mediate or CIPD. He said he had made a SAR request.

[146]By email of 5 August 2019, Ms Owen provided further information on the grievance (V4/328) process to the Claimant and stated that they were still identifying an appropriate person to hear his grievance. She explained that Byrne Deane did not have preliminary views on his grievance. She asked for various details from the Claimant. She asked the Claimant to confirm that they could progress the grievance. The Claimant did not reply.

[147]On 2 October 2019 the Claimant was provided with a response to his SAR and he was also previously sent information relating to the Respondent’s gender pay gap.

[148]By 4 October 2019 Ms Owen had still not had a response from the Claimant. She chased him, and advised him that the Respondent had decided it was not necessary to appoint someone external as the actual decision-maker, but that they did consider it appropriate for Byrne Dean to conduct the fact-finding - 48 - investigation (V4/333). She confirmed that there had been no other employee grievances regarding the changes to terms and conditions. She asked him again to confirm that his grievance could be progressed.

[149]The Claimant emailed Ms Owen on 18 October 2019 to complain regarding the provision of data requested by him. He pointed out that she had not forwarded him the password for the data she had provided on 2 October 2019, despite saying in her covering email that she would do so. He confirms that the health and safety assessment had not been carried out and stated: “To give you an idea my head is thumping, but I do not believe I can take any sick leave as I fear further reprisals from the company” (V4/348). The Claimant again did not give consent to his grievance being progressed by way of disclosure to the Byrne Dean investigator. The Claimant’s position, as explained to us orally, was that he could not consent to his grievance being given to Byrne Dean until he knew who would hear his grievance. We observe that he did not at any point communicate that to the Respondent. He simply wrote at length and did not consent to his grievance being progressed.

[150]Ms Owen did not respond to the Claimant’s email of 18 October 2019 for nearly two months, during which time he did not chase for a response. By email of 20 December 2019 Ms Owen apologised to the Claimant for the long delay, explaining that she had been out of the office for “several weeks” of annual leave (in fact only 11 days from 7 October and 18 October) and also travelling to Tokyo and New York for business purposes (each trip lasting one week). She explains in her statement how busy she was during this period, and we accept that it was a busy time for her, albeit that it does not wholly excuse a failure to reply for two whole months. She enclosed the personal data he had requested (V4/420), but explained that he was not entitled to data about other staff. She did not refer in this letter to his grievance. Nor did she do anything about the Claimant’s health concerns or workstation assessment. As already noted above, we accept that she genuinely overlooked this part of his email at the time. However, we observe that a referral to OH could have been considered at any point after the Claimant raised a grievance stating that the Respondent was making him ill. We did not, however, explore in evidence with Ms Owen why this was not done.

[151]Regarding what happened with the Claimant’s grievance up to this point, we find that the reason why it was not progressed was because the Claimant refused to consent to it being progressed and instead insisted on first being provided with a lot of information, most of which was on its face irrelevant to the grievance he had raised. However, we observe that there were other options open to Ms Owen that might have ‘cut the Gordian Knot’ created by the Claimant in this respect. Although we accept that she could not reasonably have disclosed the grievance to a third party without his consent, she could simply have arranged a meeting for the Claimant to attend with the appointed investigator. Ms Owen herself arrived at that conclusion after the Claimant submitted further information about his grievances on 29 January 2020 (see her email of 7 February 2020: V5/129). We consider she could reasonably have done this earlier, and she would then have fulfilled the Respondent’s obligation under the ACAS Code of Practice of inviting the - 49 - Claimant to a meeting to discuss his grievance. It would then have been up to the Claimant whether or not he attended that meeting. Given the Claimant’s references in the grievance and subsequent emails to ‘being made ill’ by the Respondent, she should also have offered him the Employee Assistance Programme and other support and reassurance (as she did in her email of 7 February 2020) at a much earlier stage. She might also have referred him to OH. These options did not occur to Ms Owen until later, but we do not consider that any adverse inference is to be drawn as a result. What Ms Owen did do, in terms of writing to the Claimant and trying to answer his questions and provide reassurance involved a lot of effort on her part. Although there were delays in her replying to the Claimant when she was busy, those delays were broadly matched by the Claimant’s own delays in correspondence, and are more readily understood given that the Claimant did not chase her for responses. We further observe that the options that we have identified that Ms Owen may have tried earlier may well have resulted in no different outcome as the Claimant’s approach to the disciplinary process and referral to OH towards the end of his employment suggest that he would have been unlikely to co-operate with these options. As is clear from the Claimant’s own letters of 29 January 2020 and 5 February 2020, he was also determined to provide further information about his grievance, and to have all matters dealt with together. This, probably, is why he did not consent to her progressing the grievance earlier, so it is unlikely that even if Ms Owen had taken the steps she took in her email of 7 February 2020 sooner (or referred him to OH) that this would have made much difference. Performance management 2019

[152]On 11 June 2019 the Claimant emailed Mr Niforas to confirm that he would not participate in the performance management process (V4/283). Ms Owen in response made clear that it was not an option to opt out, and it was a mandatory requirement for all employees. Her email explained that performance management is important to “opportunities to promote personal development and growth”.

[153]By email of 16 July 2019 the Claimant was again asked by Ms Owen to complete his performance objectives (V4/326), but did not do so, telling Mr Gully who asked him about it that he had told Ms Owen he did not wish to be ‘harassed’ on the matter. Mr Gully noted in an email to Ms Owen (V4/326) that, “Failure to follow firm policy / procedure seems to me to be getting into disciplinary territory but I am aware that there is a broader context here”.

[154]Mr Syson was new in post at this point. He was aware from Ms Owen that the Claimant had raised a grievance (but not aware of its contents), and that the Claimant was refusing to participate in the performance management process, but was otherwise still working well in his ‘day job’. On 15 October 2019 he contacted the Claimant noting that his mid-year review was outstanding and asking to catch up to discuss (V4/345). - 50 -

[155]The Claimant replied on 16 October 2019 confirming that he would not participate in the performance review process, had made this clear previously to Ms Owen and Mr Niforas and would accordingly “politely decline” his request to meet (V4/344). In oral evidence, the Claimant suggested this was not what he meant, all he meant was that the deadline had not yet passed and he would not do it yet, and he went on when questioned about performance management to maintain that he was not refusing to take part. However, it is very clear once one has the full chronology in mind, and the Claimant’s rationale for not participating in the performance management process as stated in his grievance, that he was refusing to take part in the performance management process because he had become suspicious of it and believed that the Respondent could not legally require him to participate.

[156]In response, Mr Syson explained that he was not wanting to meet to carry out the performance review, but in order to understand the Claimant’s rationale for not wishing to participate (Mr Syson not having seen the explanation provided in the Claimant’s grievance). Taking a creative management approach, Mr Syson wrote that the Claimant’s position presented challenges in terms of deciding on performance and reward, but accepted that if the Claimant was ‘fully against it’ he would respect that and ‘work things out by myself’.

[157]Mr Syson recognised that disciplinary proceedings could have been commenced against the Claimant for failing to participate in the performance management process, but consciously (with colleagues) decided not to commence disciplinary proceedings against the Claimant for this to avoid a perception of retaliation for having raised a grievance. The Claimant was at this point, and throughout, up until the point when he went off sick in February 2020, working diligently and to his usual standard with apparent commitment to the Respondent in terms of his day-to-day work.

[158]On 12 November 2019 (V4/356) Mr Syson then invited the Claimant to an informal feedback session on matters such as would have been covered in the performance management process, “the idea being to help you get the most out of your career”. The Claimant attended this meeting. The Claimant’s case is that at this meeting he “discussed discrimination” and Mr Syson “did nothing to address the matter amicably”. The Claimant complained that he had not been promoted to VP like Employee 10 although he believed he had been doing the same role. At this hearing, the Claimant’s position was that he asked Mr Syson ‘what he would do for him’ and that Mr Syson agreed to look into promotion opportunities for him. Mr Syson for his part described the meeting as a difficult one. He found the Claimant’s communication style “odd” and considered it was apparent that frustrations had been building up for some time. He thought it would take some work to bridge the gap between the Claimant’s expectations and reality. He said that he would like to set up regular meetings with the Claimant (something he does with all those who report to him, quarterly for those at the Claimant’s level, monthly for the next rank and weekly for his direct reports). Mr Syson says that the Claimant refused to schedule any further meetings, but he put one in his own diary anyway for February 2020 to make sure he got back in touch with the - 51 - Claimant. In the end that further meeting did not happen because by that time the Claimant was off sick. We find that the differences between the Claimant’s and Mr Syson’s recollection of this meeting were relatively minor and that such differences as there were resulted from the Claimant’s misunderstanding of the situation. The Claimant has, we accept, been convinced since 2014 that he is doing the same job as Employee 10 and that he is deserving of promotion and increased pay for all the reasons he has advanced in these proceedings. He genuinely believed that Mr Syson had agreed at this meeting to look into his situation and come back to him regarding promotion opportunities. However, we find that is not what Mr Syson said: we find that Mr Syson genuinely did not consider that the Claimant had been wronged as regards not being promoted to VP like Employee 10 or not being promoted (essentially for the reasons advanced by the Respondent in these proceedings) and that his intention was to try to meet with the Claimant with a view over time to helping him to understand why he was in the position he was in, and providing guidance about what might be needed to progress within the Respondent. He did not in our judgment mislead the Claimant at this meeting; the Claimant simply came away believing that Ms Syson had said what he wanted him to say. Mr Syson himself formed the view at the time that the point he was trying to make had not “landed” with the Claimant. We observe that even in the course of this hearing when questioning Mr Syson about the meeting, the Claimant misunderstood Mr Syson’s answers and suggested that Mr Syson had agreed that he was going to see what he could find for the Claimant by way of promotion opportunities even when that had not been Mr Syson’s answer. As Claimant and witness were at cross-purposes, the judge had to intervene to explain to the Claimant the difference between what Mr Syson had said and what the Claimant seemed to think he had said. Alleged harassment January 2020

[159]The Claimant’s position was that after June 2019 Mr Niforas had kept cancelling their normal monthly meetings. Mr Niforas appeared confused by this point when challenged by the Claimant in cross-examination. It was evident he was taken by surprise by the point, which had not featured in the List of Issues or in the Claimant’s witness statement. He replied that he thought they had had 1:1 meetings, frequently and that they had frequent interactions on a daily basis as they worked closely together. As the Claimant did complain about the lack of monthly 1:1 meetings in his email of 24 January 2020, we accept that he is right that the scheduled 1:1 meetings did not happen during this period, but we do not consider that any particular significance should be attached to that, given that the Claimant did not dispute that they had continued working closely together during this period and Mr Niforas had not had proper notice that the Claimant was going to complain about a lack of meetings and thus not had a chance to check his diary so as to be able to explain why they had not happened.

[160]On 7 January 2020, the Claimant accuses Mr Niforas of verbally harassing him by speaking to him in an aggressive derogatory manner when receiving - 52 - too many automated emails. Mr Niforas cannot recall this incident, denies he would have spoken to the Claimant in a derogatory manner, but accepts he finds automated emails frustrating. The Claimant did not in his witness statement (or any other document) provide any detail of what happened in this incident. In answer to the Tribunal’s question at the hearing, the Claimant described what happened as being that on the emails coming into inboxes, Mr Niforas had jumped up and come across to him asking why he was getting ‘all these emails’. The Claimant asked him please not to speak to him like that. The Claimant said that Mr Niforas does not speak to other people like that. The Claimant explained why the emails were coming and Mr Niforas spoke to him “aggressively” to get him to get Employee 10 to fix it. The Claimant after the conversation emailed Employee 10 stating that Mr Niforas had ‘asked him to mention’ the issue “with the view of getting it resolved by the EDM team” (GB2/208). It was suggested to the Claimant in crossexamination that the way he writes this email is casual and calm and does not suggest that Mr Niforas has just been aggressive to him. The Claimant said that this was because he was not going to ‘take it out’ on Employee 10.

[161]Regarding this incident, we find that Mr Niforas did not act inappropriately or aggressively. We accept he would have been frustrated about the automated emails arriving in his inbox and that this frustration may have come across in the way he spoke to the Claimant, but we consider that the Claimant has over-stated his case regarding this incident. If it had been as serious as he now suggests, he would not have written in such casual terms to Employee 10 with no intimation of urgency at all, and he would have complained about this incident in his later email of 24 January in which he makes other allegations of harassment against Mr Niforas.

[162]In the List of Issues, the Claimant alleged that on 7 January 2020 Mr Niforas denied him any promotion, pay, bonus, or increased compensation. This was not dealt with in the Claimant’s witness statement and Mr Niforas cannot remember this conversation either. It is not mentioned in the Claimant’s subsequent email of 24 January. It was put to the Claimant that there was no conversation with Mr Niforas in January about promotion, pay, bonus and the Claimant agreed. The Claimant accepts this alleged conversation did not happen and we so find.

[163]The Claimant brought claims in the List of Issues that on 17 January 2020, Mr Boston, Mr Hammond and Ms Kelliher bullied him regarding Mr Boston not receiving data he had requested. After the Respondent had informed the Tribunal that it would not be calling Ms Kelliher (who has left the Respondent), only Mr Boston and Mr Hammond, the Claimant stated that he was not making claims against Mr Boston and Mr Hammond so they need not attend to give oral evidence either. The Claimant’s complaint about what happened on 17 January 2020 as set out in his witness statement (p 118) is that he was on the phone for over an hour in an uncomfortable position because he did not have a headset and that he suffered (unspecified) “racial harassment” during this call (p 118 of witness statement). Invited by the Tribunal to explain what he says the harassment was, he said that Ms Kelliher spoke to him in a derogatory manner, but this was limited to tone. He accepted that she had - 53 - never spoken to him like that at any other point, and that it may have been because she was just irritated/cross about what had happened on this occasion.

[164]On 21 January 2020 the Claimant emailed Mr Niforas about behaviour by Mr Boston, Mr Hammond and Ms Kelliher (GB2/188, DD/131). The Claimant in his email complained about Mr Boston’s conduct as being ‘unprofessional’, Mr Hammond making what he considered to be unreasonable demands, and Ms Kelliher had ‘continued to attempt to force through late active list changes without a fully tested and working alternative solution’. He says nothing here about Ms Kelliher having spoken to him inappropriately. He makes a general complaint, without particulars, about “people who scream and shout and bully their way to getting what they want”.

[165]Regarding the allegation against Ms Kelliher, although she was not tendered for cross-examination, we note her denial of the allegation in her witness statement, and we find that the Claimant has on his own evidence not made out the factual basis of any case against her. We find that at best he has again misinterpreted another employee’s frustration about a work situation as something personal to him. We are not satisfied, in the light of the Claimant’s vague and changing account of what happened, and his own acceptance that she may just have been frustrated about work, that Ms Kelliher acted inappropriately. He has in any event adduced no evidence at all from which we could conclude that Ms Kelliher’s treatment of him was influenced by his race.

[166]On 23 January 2020, the Claimant alleges that at a 1:1 meeting Mr Niforas ‘threatened him’ for not signing dual hatting arrangements. Mr Niforas said he had to raise it as the Claimant was the only one in a team of 22 who had not signed and it was not fair on the rest of the team. The Claimant sent an email about the meeting in the evening of the next day (V5/43-45). In his email, the Claimant complained about the dual-hatting being a breach of his rights. The Claimant in his email states that Mr Niforas said he would “prefer if [the Claimant] was dual hatted” and that he needed to “consider [his] team” and that he was “just making [the Claimant] aware and had to mention it”. The Claimant denied that the reference in his email to Mr Niforas having said that the need to ‘consider his team’ was a reference to Mr Niforas saying it was unfair on the team that the Claimant was not dual-hatted. The Claimant said he viewed it as a threat about him leaving the team, but we find that this line in the Claimant’s email does reflect what Mr Niforas said he said about it not being fair on the rest of the team that the Claimant was dual-hatted. We further find that it was reasonable for Mr Niforas to raise this with the Claimant in the (very moderate) terms that the Claimant describes in this email given that, as we have already set out above, we find that asking the Claimant to become dual-hatted (and sign the relevant paperwork) was a reasonable management request. Given the Claimant’s long-standing resistance to it, and his strength of feeling about it, we consider that he over-reacted to Mr Niforas raising it with him and perceived it as a threat. We find that there was nothing unreasonable about Mr Niforas’ conduct on this occasion. - 54 -

[167]In the email of 24 January 2020, the Claimant also complained about Mr Niforas not having yet approved his new PC install request made on 20 January 2020 despite having said he would do so. He complained about Employee 10 doing his work or passing him half completed work and expecting him to pick it up, and that Mr Niforas had been spending much more time with other employees. He made a complaint that Employee 10 had spoken to another black employee in an aggressive derogatory manner saying, “Save the f***** file”.

[168]Mr Niforas did not reply to the Claimant’s email, although he strongly disagreed with its contents. He forwarded the complaint to Mr Syson half an hour after receiving it with a covering “fyi”. He did not attempt in his email to Mr Syson to defend himself or provide any context. He did not recall speaking to the Claimant about the email subsequently, but maintained that he had not previously been aware that the Claimant had a problem with him and he had felt they always got on well. He did not reply to the Claimant personally because Mr Syson did not advise him to, but told him that he would pass it on to Ms Owen to deal with. Mr Niforas also did nothing about the complaint about Employee 10, although he said that if the alleged language had been used by her, it was “not acceptable”. Ms Owen decided to deal with this email as part of the Claimant’s grievance. We have considered carefully whether this was appropriate, particularly in relation to the allegation that the Claimant made regarding Employee 10. We observe that this is a complaint the Claimant is raising on behalf of another employee and there is no evidence that the other employee actually regarded the behaviour as untoward or complained about it himself. There is nothing on the face of the allegation (save for the colour of the employee concerned) to suggest a racial element. In the circumstances, we find that it was reasonable for Ms Owen to add this email to the Claimant’s grievance to be dealt with as part of that.

[169]On 24 January 2020 the Claimant himself forwarded to Ms Owen the email he had sent to Mr Niforas (V5/43), but deleted from it the complaint about Employee 10. In his covering email he wrote that he was advising her that he was still being harassed. Ms Owen says in her witness statement that she decided to include this with the other grievances that the Claimant had raised, but we do not accept that as she did not refer to it in her email of 7 February 2020 as being one of the Claimant’s communications that would be considered as part of the grievance. Some of the issues that the Claimant raised in the 24 January email were, however, repeated in his 5 February email which was to form part of the grievance investigation.

[170]The Claimant’s allegation that on 29 January 2020 Ms Owen discussed confidential matters with others was withdrawn at the hearing. January 2020 grievances

[171]On 29 January 2020 the Claimant handed Ms Owen two further grievances each with lengthy appendices. His covering letters for each were in the same form as what he referred to as his “original grievance” of June 2019 (i.e. with - 55 - the same requirement that it not be disclosed to anyone) and the grievance summaries described the further grievances as not being separate grievances but “further information” in relation to his original grievance. The first (V5/60) was concerned with the Respondent’s failure to promote him and broadly follows the claim he has made in these proceedings, i.e. the Claimant argues that he has always been doing ‘the same job’ as Employee 10 and complains that “no one has ever been promoted from IDM-Market Data (until the manager himself was promoted in June 2019) … whilst younger persons continually join the company and are promoted within 2 years” (V5/62). He did not refer to there being any other potentially unlawful reasons for failure to promote (such as race or sex or having made protected disclosures). The second (V5/70) complained about the failures by the Respondent to provide him with the equipment he had requested over the years, including failures to provide requested “reasonable adjustments”, again broadly in line with the claim he has made in these proceedings. He also complained about Ms Owen’s failure to provide him with all the information he had requested. He again suggested that the grievance could be investigated by someone external, and asked that he be given at least 14 days off work to prepare for any hearing, and that he be given at least 5 days in which to present his case.

[172]By email of 3 February 2020 Ms Owen acknowledged the further grievances (V5/110). She stated that the grievance policy “requires a level of engagement and prompt responses to enable us to investigate without unreasonable delay”. She said that she would be in touch shortly to confirm the next steps.

[173]On 4 February 2020 Mr Sword and Mr Hameed of the Compliance Division emailed the Claimant regarding apparent IT breaches by him as two emails with confidential data, and also the Respondent’s organisation charts, had been sent by him to his personal email address (V5/144, V5/148). The emails reminded the Claimant that use of personal email accounts required advance approval and that otherwise when working from home, employees are supposed to use remote access. The Claimant was asked to explain his reason for sending the material and confirming approval had been obtained. The Claimant said in oral evidence that he did not read the email from Mr Sword (V5/111) because as it was from a Bank employee and he is not dualhatted all he could see was a preview panel where he could see the attachments. However, in his letter to Ms Owen of 5 February 2020 (V5/112) (in which he made clear that he had not sent her two further grievances, but further information in relation to his original grievance and that he wanted all matters dealt with together) he complained that he was still being harassed, and identified the emails from Mr Sword and Mr Hameed as acts of victimisation (V5/112). It is apparent from what he writes in that letter that the material he emailed to his personal email address in breach of the Respondent’s IT policies was material that he had appended to the grievances he sent to Ms Owen. He wrote: “Given I have raised a Strictly Private and Confidential and For Your Eyes Only Grievance with yourself on 6th Jun 2019 and provided further information on 29th Jan 2020 … I find it strange I am being quizzed on information which was only submitted to yourself less than a week ago”. We observe that his use of the words “being - 56 - quizzed” strongly suggests that the Claimant had read the content of the emails and not just looked at the attachments. Ms Owen also gave evidence, which we accept, that the Claimant not being dual-hatted did not prevent him reading Mr Sword’s email because there was nothing done to the email system to prevent the Claimant reading emails from Bank employees, and in any event Mr Sword was dual-hatted and, as it states on his email, he was authorised to represent the Respondent as well as the Bank so there was no problem. As such, we find that the Claimant was not frank when asked about this email in oral evidence.

[174]On 7 February 2020 Ms Owen sent a lengthy email to the Claimant (V5/129) which he did not receive as he was by that time out of the office. It is clear from this email that Ms Owen has finally properly read the Claimant’s communications over the previous six months. She picks up on his references to feeling unwell and that he cannot take sickness absence and assures him that he can. She refers him to the Employee Assistance Programme and asks him whether, pending investigation of the grievance by Byrne Dean, she can provide any other assistance. She had decided that it was necessary to move forward and appoint Byrne Dean even though he had not agreed to that and informed him that the next stage would be an invitation to a meeting.

[175]As the Claimant had not replied to Mr Sword’s or Mr Hameed’s emails about IT breaches, Mr Sword followed up regarding the IT breaches on 11 February 2020 (V5/142), but the Claimant did not get this email as he was out of the office by then. Mr Sword’s email makes clear that the Respondent takes IT breaches “very seriously”. Mr Niforas responded to inform Mr Sword that the Claimant was out of the office and to confirm that he had not authorised the Claimant to send emails to his personal email address. Mr Syson was informed about IT breaches as well as the fact that the Claimant had raised a further grievance (V5/141). Again, he considered whether disciplinary proceedings should be commenced, but decided against it so as to avoid giving the Claimant cause to think the Respondent was retaliating against him for raising grievances. 2020 absence / Covid-19 pandemic

[176]From 6 February 2020 the Claimant was on sick leave. Although we infer from his witness statement (p 23) that he commenced sick leave in part because the screens recommended in the workstation assessment had not been supplied at this point and Mr Zemaitis had delayed in sending him the Roodlane report, the Claimant did not tell Mr Niforas or anyone else any of this. He simply texted Mr Niforas on the morning of 6 February (V5/114) that he was unwell and unable to work and would let him know when he was able to return. Mr Niforas replied that he hoped the Claimant would feel better soon. The next day Mr Niforas texted (V5/115) the Claimant to say he would be out of the office that day so he should contact Employee 10 who he had asked to provide cover. It is apparent from this text message that Mr Niforas - 57 - thought it was possible that the Claimant would return to work that day, i.e. that he was unaware that the Claimant might be seriously ill.

[177]On 12 February 2020 the Claimant still had not returned to work. Mr Niforas texted him to ask how he was, whether he could provide any help and when he thought he would be well enough to return so he could arrange cover (V5/149).

[178]On 13 February 2020 the Claimant wrote a letter to Ms Owen (V5/150) and provided a doctor’s note to HR signing him off sick with “stress, panic attacks and headaches” until 8 March 2020. In the letter, he said he was planning to return to work on 9 March 2020 (V5/152). He also texted Mr Niforas (V5/153). In the letter he asked for his privacy to be respected and information about his absence not to be passed on. He said “all being well” he was planning to return on 9 March.

[179]By email of 18 February 2020 Mr Sword informed Ms Owen that 52 emails were sent to the Claimant’s personal email account between 25 January 2019 and 29 January 2020.

[180]On 19 February 2020 Ms Owen sent a text message to the Claimant to offer support and acknowledge receipt of his sick note (V5/160). The Claimant did not respond to that message (V5/161). Ms Owen kept Mr Syson and Mr Niforas informed, noting that the Claimant was signed off until 9 March 2020 (V5/161).

[181]On 28 February 2020 Ms Owen sent a letter to the Claimant at his home address to offer support (including the Employee Assistance Programme and, on his return to work, Occupational Health) and asked for him to confirm receipt to her phone or email as she was worried about him (V5/176). The Claimant did not respond to that immediately, although from his perspective his letter of 9 March 2020 (that the Respondent did not receive) was intended to be his response (V5/201).

[182]On 9 March 2020 the Claimant obtained a further doctor’s note signing him off sick with “stress at work” until 17 March 2020 (V5/202). The fit note ticked the box “you are not fit for work” rather than the box “you may be fit for work taking account of the following advice”, but did state in the comments: “Work place to make adjustment to duties and workstation”. The Claimant also wrote a letter dated 9 March 2020 (V5/201) which thanked Ms Owen for her letter of 9 March 2020 and stated that “all being well” he intended to return to work on 18 March 2020. He asked that before he return, Ms Owen should “complete the following and confirm in writing to [his] address”. The four things requested were: a new PC; privacy, anti-glare and anti-blue light screens fitted to all monitors; all health and safety recommendations to be completed; and “I will not be bullied, victimised, harassed, discriminated or suffer any other detriment”.

[183]On 10 March the Claimant texted Filippos Niforas to confirm he had been signed off until 17 March 2020 and would send the doctor’s note to HR. - 58 - V5/153, V6/92. Mr Niforas emailed Ms Owen to tell her that the Claimant had texted and was “signed off work until March 17th and he will be sending the doctors note to HR” (V5/204).

[184]The Respondent’s position is that it did not receive either the Claimant’s letter or medical certificate of 9 March 2020 at the time. The Respondent accepts the letter of 9 March 2020 was sent with the Claimant’s letter of 19 June 2020. The medical certificate the Respondent says that it first saw as part of disclosure in these proceedings. The letter has a slightly incorrect postcode on it, but is otherwise addressed correctly. The error in the postcode was one the Claimant repeated in a number of communications and does not of itself explain why the letter would go astray. We accept the Respondent’s evidence that it did not receive the Claimant’s letter or medical certificate at this point, as this is clear from the content of Ms Owen’s letter of 24 March 2020. We consider that Ms Owen’s message of 18 March has given the Claimant the wrong impression because it contains a typing error. We note, as Ms Owen observed in oral evidence, that the sentence reads rather oddly because it suggests both that he sent in his doctor’s certificate and, contradictorily, that she has not heard from him. We infer that the most likely explanation is that Ms Owen meant to write something like “he said he would send me his GP certificate advising he was signed off until 17 March but I haven’t heard from him”. As such, we conclude that the Respondent did not receive from the Claimant his letter detailing his requested adjustments until 19 June 2020.

[185]By this time, concerns were rising nationally about the Covid-19 pandemic. By email of 12 March 2020 Mr Syson notified employees of split remote and office working arrangements in response to the pandemic (V5/213, 215) and a remote working rota was started on 16 March 2020 (V5/222). The Claimant was allocated to the Platinum team that was due to be in the office from 16- 27 March 2020. The Claimant would not have received these emails at the time as he did not have remote access to his emails.

[186]On 17 March 2020 Mr Niforas contacted the Claimant by text at 10.42 to ask after his health and inform him that it was possible to work from home if he could (V5/233, V6/93).

[187]This arrangement for optional home-working was very quickly overtaken by an email of 17 March 2020, 14.03 to all UK employees requesting that they all work from home if they were able do so from 18 March 2020 (V5/234). Again, the Claimant did not see this email at the time. Following this communication, the vast majority of the Respondent’s c 2,500 London employees began working from home. Only those who could not do their work from home or who made special requests to work from the office because of personal circumstances attended the offices.

[188]On 18 March 2020 Ms Owen and Mr Niforas messaged each other about the Claimant. We have dealt with this exchange above insofar as it concerned the Claimant’s 9 March GP certificate. Ms Owen’s message continued, “Can you please drop him a text to advise we have invoked remote working” and - 59 - “if he is planning to return to work we should advise him that he should do this from home – thanks”.

[189]We should interpose at this point that the Claimant submitted in closing that Mr Niforas had not given honest evidence about his communications with Ms Owen about the Claimant’s absence and that he “confirmed three times that he had not advised Ms Owen of my absence, and then he changed his position”. The Claimant’s submission does not accord with our notes of evidence. We found Mr Niforas to be a straightforward and honest witness, albeit one whose memory of events was not very good, but in such cases he simply said he did not remember. For the avoidance of doubt, it is perfectly clear from the documentary evidence that Mr Niforas from the outset kept Ms Owen informed of communications he received from the Claimant in connection with his absence.

[190]On 18 March 2020 the Claimant obtained another certificate from his GP signing him off sick with “stress at work” until 22 March 2020. The GP wrote on the note: “Back to work on Monday 23rd of March 2020 for phased return to work – for 2 (two) months” (V5/241). There is no dispute that the Claimant did not submit this sick note until 19 June. As is apparent from his later text message of 23 March 2020, he deliberately withheld it.

[191]On 18 March 2020, the Claimant texted Mr Niforas to say he had been signed off until 22 March 2020 and was planning to return on 23 March 2020 (V5/244, V6/94). The Claimant wrote: “Upon my return I will come in and work from the office.”

[192]On 19 March 2020 Mr Niforas replied to the Claimant: “That is good to hear that you are coming back. As mentioned due to the Covid-19 developments we are asked to work from home. Therefore there is no need to come in the office. Let me know if your remote access works” (V6/94, V5/244). The Claimant did not reply to Mr Niforas’ message about working from home or remote access. He did not explain that his remote access was not set up, and had not been set up since 2016. Nor did he tell the Respondent that he could not work at home for medical reasons. When cross-examined about this by the Respondent (and then asked further questions by the Tribunal) the Claimant said that his doctor did not want him working at home in isolation because part of the problem was that he was being harassed and discriminated against and “they definitely did not want me sitting in isolation” and that it was the advice of the doctor that he should come to work. We note that the Claimant first suggested that it was his doctor’s advice that he should work from the office in his letter of 4 July 2020 (V7/73). However, we do not accept that the Claimant received any such advice from his doctor. We so find for the following reasons:a. There is nothing to suggest that the Claimant discussed with his doctor about working from home or working from the office – if this was discussed and was an important point it would have featured either on the Claimant’s GP records (V7/327-328) or the sick certificate signed that day, but it does not – despite the Claimant - 60 - having told the GP that work had offered for him to work from home because of corona virus, the GP did not record anywhere that it was his/her advice that the Claimant should not do this but should work only from the office. The sick certificate simply states that he should have a two-month phased return to work. It is inconceivable that, if there was really a medical problem with the Claimant homeworking, the GP would not have mentioned it;

b. It was not until 19 March that Mr Niforas made clear (following the communication to all UK employees at 14.03 on 18 March) that everyone now had to work from home and the Claimant did not return to the GP after this point and so could not have received the advice he alleges he received at a later date; and,

c. Other evidence we have heard suggests that the Claimant felt strongly that the Respondent could not reasonably require him to work from home as his place of work in his mind was (and could only be) the office. We refer in this regard to the submissions he made (and which we have already recorded above) about his contractual terms regarding place of work and his reference in closing submission, “if you are a plumber and go out to work, you don’t go home and start fiddling with the taps, if you go to work you don’t naturally go home and work, I categorically said I would go to the office”. We infer that, as had happened with previous issues that the Claimant regarded as a change to his terms and conditions, the Claimant regarded homeworking as an unacceptable change to his working conditions.

[193]On 20 March there was an instant messaging conversation between Ms Owen and Mr Niforas (V5/252), in the course of which Ms Owen told Mr Niforas that government advice was for employees to work from home and that the Claimant should work from home unless he could advise why he could not do so. In cross-examination by the Claimant, Mr Niforas accepted that the Respondent could make exceptions for employees to come into the office and that he did not specifically convey that to the Claimant. He did however, ask the Claimant if he had what he needed to work from home. The Claimant did not reply so the Respondent could not have known that the Claimant considered he could not/should not work from home. Mr Niforas’ understanding was that the exceptions who were working in the office were those who needed to be there for business reasons, but the Claimant’s job did not require him to be there for business reasons, so he did not suggest to the Claimant that he could come into the office.

[194]On 22 March 2020 Mr Niforas again texted the Claimant: “Hope all is well. Can you let me know please if your remote access works? Following government advice on covid-19 we work from home until further notice” (V5/262, V6/95).

[195]On 23 March 2020 the Claimant texted Mr Niforas. He did not answer the question about remote access or working from home. He wrote that he would - 61 - wait until the office re-opened to begin his phased return to work and would provide his final doctor’s note on his return (V5/263, V6/97). He wrote that he was waiting for communication from HR in response to the letter he says he sent. He wrote that he was waiting for confirmation that the Respondent would comply with “medical expert advice which was sent 2 weeks ago” and, “As the company has a duty of care for all employees I will not put myself or anyone else’s health at risk and will therefore await for the company to officially open the office allowing everyone to return to the office carry out the correct process and begin a phase return to work”. He concluded by stating he would not send any more messages until he had received a letter from HR “as this is proving quite upsetting”. In oral evidence, the judge asked the Claimant what he meant in this message about putting other people’s health at risk by working from home and the Claimant confirmed there was no risk to anyone else and he was not clear what he meant. On reflection, having now considered all the evidence, we conclude that the reason the Claimant was unable to answer the judge’s question was because it was based on an incorrect premise. We infer that when the Claimant wrote that text message he was not contemplating working from home and had simply ‘blanked out’ or ignored Mr Niforas’ instructions to work from home. The Claimant’s position was that work was to be done in the office and as people were not supposed to come to the office, nor would he as to do so in the pandemic would be putting other people’s health at risk and he would therefore wait for the office to re-open before starting to work.

[196]Mr Niforas did not reply to the Claimant’s text message as he understood from the Claimant’s final remark that the Claimant did not want to continue the discussion (as is clear from Mr Niforas’ email at the time: V5/265). Mr Niforas did, however, pass the Claimant’s message on to Ms Owen in an email of 23 March (V5/265-6). This internal email chain does not otherwise mention the Claimant’s wellbeing, but includes questions about whether he can work from home and what he means by his messages. Ms Owen agreed to contact the Claimant to seek clarification.

[197]By letter of 24 March 2020 Ms Owen advised that she understood the Claimant had texted Mr Niforas yesterday and that he had stated he had written to HR. She wrote: “Please note that due to Covid-19, current working arrangements mean that we are unable to receive post. As such, we are not in receipt of your letter or the medical advice that you mention is enclosed with the letter. Your health and well-being is of key importance … “. It referred to remote working arrangements that had been implemented for him to perform his role and reminded him of the requirement to provide further medical certificates (V5/278). This letter was sent by email to the Claimant’s work email address and the Claimant did not receive it as he did not have remote access. The letter was not also posted.

[198]On 24 March 2020, at Ms Owen’s request, Mr Niforas texted the Claimant to say: “HR asked for your personal email (as not sure you are able to access work account) so they can send you a letter. Please note that HR are not in the office to print documents. Let me know if you can provide this and I will let them know so they can email you the letter. Thank you” (V5/280). The - 62 - Claimant did not reply. When questioned about this by the Respondent in oral evidence, the Claimant said that this was because he had been advised to stop screen use, he was suicidal and his doctors were making a crisis plan to protect him. We reject the Claimant’s evidence in this regard as his GP notes show that he did not visit the GP at all between 18 March 2020 and 22 April 2021 (V7/327). We observe that it should have been clear to the Claimant from this text message that the Respondent was not in a position to be able to send him a letter by post at this point (as he maintained he was expecting and would wait for) and that unless he replied to that text message and provided a personal email address, the Respondent was at that point unable to send him a letter.

[199]On 1 April 2020 Ms Owen telephoned the Claimant on his mobile phone but was unable to leave a voicemail. She followed up with a text asking him to confirm receipt (V5/313, V6/240). The Claimant did not respond to any messages from Ms Owen. His position as explained in oral evidence was that he was suffering from stress and the person causing that stress was Ms Owen. In cross-examination, he refused to say when asked whether he had received calls and texts from Ms Owen. In closing submissions, however, he confirmed that he accepted she had called and texted him during this period and he had not replied. We find that the Claimant’s position in closing submissions reflects the actual facts.

[200]On 14 April 2020 Ms Owen attempted to call the Claimant, but was not successful.

[201]On 15 April 2020 (V5/333) Ms Orban (HR Advisor) emailed Ms Owen with suggested text for a letter to the Claimant that included informing him about sick pay entitlement, PHI and referral to OH and other forms of assistance. Ms Owen did not advise the Claimant of any of this at the time. The Claimant sought to make much of this in cross-examination, but we find there was no need for Ms Owen to advise him about any of these matters at this point as the Claimant was not signed off sick but was absent without authorisation and not answering all attempts to contact him.

[202]On 20 April 2020 Ms Owen followed up with a text to the Claimant in which she said that they were very concerned about him and would contact the police if they did not hear from him (V6/241). The Claimant did not respond.

[203]On 1 May 2020 Ms Owen attempted to call the Claimant and was unable to leave a voicemail (V6/241).

[204]On 1 May 2020 Ms Owen contacted the police regarding her concern about the Claimant. The police attended the Claimant’s house, together with an ambulance. The police then called and Ms Owen emailed Mr Williams immediately: “He’s at the address and is safe and in their words seems very well. They have asked him to contact me. I’m relieved to hear he’s ok”. Mr Williams replied, “Wonderful. At the same time a little rebuke to him for not replying to any messages at all given the anxiety this has caused. Presume he is able to send a whats app at least” (V6/10A-10C). In her subsequent - 63 - email, Ms Owen added, “The police said we don’t want to get involved in your employment dispute. We have told him to contact you but we don’t think he will.” The Claimant disputes that he said any of this to the police. He may be right, but what matters for the purposes of these proceedings is what Ms Owen and Mr Williams understood and believed and we accept that Ms Owen’s genuine understanding is reflected in these contemporaneous emails.

[205]From 1 May 2020, Mr Niforas began exploring the possibility of getting a temp to replace the Claimant as his return was uncertain.

[206]On 4 May 2020 Ms Owen attempted to call the Claimant and followed up with text to the Claimant referring to having heard from the police that he was well (V6/241). The Claimant still did not reply.

[207]On 5 May 2020 (V6/24) the Respondent’s Pension and Benefits team sent him a letter about changes. They sent it hard copy as the Claimant was out of the office.

[208]On 27 May 2020 Ms Owen emailed the Claimant's personal email address explaining that she was concerned about him and asking him to contact her or get a friend, family member or colleague to contact her on his behalf (V6/87). Ms Owen obtained the Claimant’s personal email address from the emails that IT had found he had sent to his personal email address. The Claimant, however, maintained in oral evidence that he did not get this because he does not use his personal email.

[209]On 28 May 2020 Mr Niforas texted the Claimant informing him that it was compensation communication day the following day (V6/100). In fact, there was no communication with the Claimant about compensation at this point. The Claimant had been allocated a (relatively small) bonus by Mr Syson for 2020, but in the end it was decided to put his bonus on hold pending resolution of the unauthorised absence issue. Mr Niforas was not involved in the decisions that led to the Claimant’s bonus being deferred. Internal messages between Ms Owen and Mr Syson on 28 May 2020 suggests that the Respondent took legal advice on whether or not to pay the Claimant’s bonus and at this point were going to pay (V6/88). However, a few days later they decided to withhold the bonus (V6/120) pending obtaining an occupational health assessment (V6/88B). Ms Owen gave the instruction for the bonus to be withheld, but it was Mr Syson’s decision (V6/120). The Claimant was very exercised about this decision during the hearing, but we record that we find the Respondent’s decision to withhold the bonus to be reasonable and unexceptional. The Claimant had by this time been absent without authorisation for two months and was not responding to messages, although he was at home and well enough to speak to the police. It would in our judgment have been inappropriate to pay him a discretionary bonus in those circumstances, particularly given the FCA guidance about the need to take account of employee conduct in determining discretionary pay. - 64 -

[210]In an internal email exchange of 3 June 2020 Ms Orban asked Ms Owen if she had received a fit note for the “first period of absence” (V6/116) as she was unable to find any sick certificates for him on the system.

[211]On 4 June 2020 Ms Owen sent a letter to the Claimant by courier (and email) (dated 3 June 2020) informing him that the Respondent was considering “formal action” in relation to his unauthorised absence and failure to maintain contact, that Occupational Health (OH) advice would be sought and he was strongly encouraged to attend. The letter stated that the Claimant would be sent details of an appointment. It did not require him to do anything at this stage (V6/124-126). This letter refers to the Respondent not having received a sick certificate since the one expiring on 9 March and says that no letter has been received from him. A copy of the Sickness Policy was enclosed. The letter set out sources of support available. He was urged to contact the Respondent as soon as possible to discuss absence and next steps. Enclosed with this letter was the MUFG Bank Employee Handbook, rather than the Respondent’s Handbook as was intended (and has had been attached to the email version that was sent out at the same time, but not received by the Claimant). We observe regarding this letter that although its import and intent is reasonably clear, it could be worded more straightforwardly. In particular, it could have been clearer that sickness certificates were required to cover the whole period of absence if the Claimant was sick, and it would have been better to use the word “disciplinary” rather than the (somewhat vague) “formal action”. However, the Respondent’s policy on these issues is clear and it should have been obvious to the Claimant that the reason why his absence was regarded as unauthorised was because he had failed to provide sickness certificates covering the whole period.

[212]The couriers who attended the Claimant’s home to deliver the letters that the Respondent sent from this point on did not wear face masks/PPE. The Claimant complains that this amounted to harassment and put his life at risk. However, there is no evidence that the Respondent knew in advance that the couriers would not be wearing face masks, or otherwise did this deliberately. Nor has any evidence been provided to suggest that the brief interaction with a courier that would be necessary to receive such a letter would pose any risk of Covid-19 infection. And, in any event, the Claimant did not in fact answer the door to any of the couriers, each of whom in the end placed the letters for the Claimant in his mailbox situated near the entrance to the block of flats in which he lives.

[213]The Respondent did not receive a response from the Claimant to its letter of 4 June, so a week later on 11 June 2020, the Respondent sent the Claimant another letter by courier arriving at 4.30pm, referring to the earlier letter of 4 June 2020, expressing concern for his wellbeing and informing him that an OH appointment had been scheduled for a virtual consultation on 15 June 2020 at 09.45 and asking him to confirm he would attend (V6/217). It warned again that his current absence was regarded as unauthorised and that failure to engage with OH may lead to ‘next steps’. It told him to contact Ms Owen immediately by phone or email or nominate someone else to communicate - 65 - with her on his behalf. The Claimant’s position was that this letter just required him to ‘attend’ a virtual appointment for which he had been provided with no joining details. We observe that it is unfortunate that the last whole paragraph on V6/217 is worded in such a way as to enable the letter to be read at first blush as the Claimant read it at this hearing, and note again that the Respondent could use plainer English in its correspondence. However, in our judgment, when the letter is read as a whole, it is in fact clear that he should contact Ms Owen (or in any event that if he was uncertain about how to attend the OH appointment, it was obvious that he should check with Ms Owen), but he did not do so. Ms Owen explained that she was following the Respondent’s normal OH process, which is to schedule an appointment, then get the employee to consent to release of his personal data to OH and OH would then contact him to arrange how to hold the appointment. The OH form is supposed to be with the doctor 24 hours in advance (V6/232) but Ms Owen said in her experience, OH was flexible about timing and that if the Claimant had responded at any time on Friday or over the weekend the appointment could have gone ahead. When we suggested to her that she had set an unreasonably short deadline, she said that she considered it to be sufficient as there was time for the Claimant to respond. If he had responded and asked for more time, that could have been allowed, but he did not.

[214]The Claimant did write a letter of response to the Respondent’s letter of 4 June, but he did so on 11 June and he posted it and it was not received by the Respondent until several weeks later (although a copy of it was handdelivered by him to the Respondent on 19 June 2020 along with his further letter of that date). The Claimant's letter of 11 June (V7/23) explains that his position is that he had been told not to come to the office by his manager, that he did not wish to be communicated with other than by letters in writing. He accepted that he had not communicated with Mr Niforas since his text message of 23 March 2020 because it was ‘too distressing’. In connection with his own complaints of bullying, harassment, discrimination and victimisation by the Respondent, he referred to “I can’t breathe” and “Get your knee off from my neck” (a reference to the killing of George Floyd by Minneapolis policeman Derek Chauvin on 25 May 2020 – a crime for which Mr Chauvin was subsequently convicted of murder). He complained that he had not been sent the data he had requested and suggested that the reason for this was because he is black. He wrote that he had been off sick and was waiting a safe secure return to work at an office that was free from bullying, harassment and discrimination. He stated explicitly that he had not consented to a report from OH and suggested that the Respondent officially re-open the office first and confirm that it had “taken care of an completed all pre-existing, existing and known issues first”. He referred to other international events relating to the Covid-19 pandemic and race discrimination. He suggested that the people sent to his house (i.e. couriers) had put his life at risk. He did not complain specifically about communications from Ms Owen, or suggest he could not communicate with her personally.

[215]Around this time, the Respondent (Ms Orban) completed a draft OH referral form (V6/228). This was not used because the Claimant never provided his consent to a referral to OH. - 66 - Disciplinary process

[216]The Respondent still not having received any communication from the Claimant at all since 23 March 2020, by letter of 17 June 2020 Ms Owen invited the Claimant to a disciplinary hearing on 19 June 2020 at 13.00 with Mr Williams (Chief Human Resources Officer). The letter was sent by courier and by personal and work email (V6/234-242, including Appendix). The Respondent’s policy provides for notice of disciplinary hearings to be between 24 hours and 5 days. The Claimant was given (just) more than 24 hours’ notice. The Appendix set out details of attempts to contact the Claimant. This letter makes clear that, so far as the Respondent is concerned, the Claimant’s last medical certificate expired on 9 March 2020. It also referred to the OH appointment which he had not responded to or attended. It described the purpose of the meeting as being to discuss the following two allegations: 1. Your unexplained and unauthorised absence from work from 10 March 2020 to date. In accordance with MUFG’s sickness absence policy, if absence continues beyond the period shown in the certificate further doctor’s certificates must be submitted. You have not provided an updated medical certificate since your medical certificate dated 19 February 2020 expired on 9 March 2020; 2. Your failure to maintain contact throughout your period of absence. The reporting requirements under MUFG’s sickness absence policy provide that employees are required to keep their line managers informed of their progress and likely return to work date. You have not responded to your line manager since 23 March 2020. I have also attempted to contact you on numerous occasions to request that you make immediate contact but you have failed to respond. Details of the attempts made to contact you have been set out in the enclosed Appendix.

[217]The Claimant complains that Ms Owen took all the decisions up to this point, and wrote the disciplinary invite letter, rather than getting Mr Williams to take them. The Claimant is right that Ms Owen wrote the letter, and right also that this constituted a departure from the Respondent’s written policy. However, it is in our judgment inconsequential. It is apparent from the documentary evidence we have about contacting the police that Ms Owen and Mr Williams had been liaising over the way forward with the Claimant for some time. They were both adamant that it was Mr Williams who was responsible for taking the decision that disciplinary was the appropriate way forward, and we accept their evidence in this respect. However, we observe that Ms Owen evidently also considered that to be the right course and for the purposes of considering the Claimant’s claims in these proceedings, we regard Ms Owen as a joint decision-maker with Mr Williams. There was, however, nothing improper about that; indeed, it is what we would expect to see in terms of HR involvement in a case such as this.

[218]Mr Williams had not had any prior contact with the Claimant. He had first heard about him in one-to-one meetings with Ms Owen during 2019. He was aware that the Claimant had raised grievances, with extensive documentation, but he was not aware of the subject matter of those - 67 - grievances. Mr Williams was very clear that he had been the person to decide disciplinary was appropriate, and that he did so on the basis of the bare facts of the period of absence without an authorising sick note. He did not need to read the whole file in relation to the Claimant, and did not do so until 18 June (V7/7).

[219]The Claimant complains that the procedure at V5/303-304 was not followed because Mr Williams had not reviewed the whole file before deciding to proceed to disciplinary, but again we consider that to be insignificant. Mr Williams did not need to read the whole file as the position was very simple. The Claimant had not (successfully) communicated with the Respondent at all since 23 March 2020. He had been absent without explanation, let alone authorisation, for nearly three months. The grounds for proceeding to a disciplinary were clear.

[220]On 19 June 2020 the Claimant walked to the Respondent's offices and scanned in a letter that he had typed which was then forwarded by email from the security guard to Ms Owen (V7/9, 10-13, 14-15, 16-25). He attached to the letter a copy of his letter of 9 March 2020, the letter of 11 June 2020 and sick note dated 18 March 2020 signing him off to 22 March 2020. There is a dispute between the parties regarding whether the sick note of 9 March 2020 was enclosed at this point, but it is clear from the scanned documents that it was not. The Claimant’s letter took the position that the Respondent had not sent a letter of 24 March 2020, or otherwise replied to his letter of 9 March 2020 until 17 June 2020. There was no mention of the Respondent’s other attempts at correspondence. He referred to the requested adjustments and recommended phased return and quoted ACAS advice on absence from work and fit notes. He wrote, “To assist with your letter dated 11 Jun 2020 – the government has confirmed to work from home where possible”. He explained, “If I am to attend occupational health referral I will advise them of all the information you already have and have not actioned, as well as the advice of others. Therefore, why would you not complete these steps first and confirm.” He did not state he could not work from home (indeed, he wrote, “To assist with your letter dated 11 June 2020 – the government has confirmed to work from home where possible.” He asked that the disciplinary hearing be cancelled. He concluded that the Respondent’s actions had left him ‘fearful’ in his home, “Black Lives Matter – or do they at MUFG”.

[221]The Claimant’s letters and documents were emailed to Ms Owen and Mr Williams at 9.37am. They neither of them had time to read them properly before the scheduled 1pm disciplinary hearing. They agreed between them to postpone the disciplinary hearing and accordingly at 1pm only Ms Owen dialled into the meeting with the Claimant. Unbeknownst to Ms Owen, the Claimant recorded the meeting and has produced a transcript for this hearing (V/33-36). We listened to the recording in open Tribunal.

[222]Ms Owen began by asking him how he was as she had been so worried about him. She said that they were not going to hold the meeting today so that they could consider his letter. The Claimant said that as they had got the letter now he would be expecting to hear that the disciplinary hearing was closed - 68 - and that he would be sticking with the position he had previously advised of waiting for the office to be open. Ms Owen said that she would take a look at his letter as she had not had a chance to review it in any detail as yet. It is apparent from the transcript that her understanding (reasonable in the light of a quick review of the Claimant’s letters) was that he was still sick. Ms Owen confirmed that the office was going to stay closed for the time being in line with government guidance, that most people were working from home and that is something he should do too when he was well enough, but they would not talk about that today. She reminded him that support services were available to him.

[223]The Claimant’s position is that this meeting was a sham hearing, that the disciplinary hearing was not postponed and that if he had not dialled in he would have been dismissed on the spot without any involvement from Mr Williams. We reject the Claimant’s case in this respect as it has no evidential basis at all. It apparently stems from his misconception that it is not possible to postpone a hearing once it has started and as he had not been informed in advance that it had been postponed, this must have been (and was) the disciplinary hearing. That is fanciful. Not only is it apparent from Ms Owen’s and Mr Williams’ internal communications (and the letter to the Claimant that follows) that they genuinely believed they had rescheduled the disciplinary hearing, but that is in fact what Ms Owen told the Claimant in the meeting on 19 June 2020.

[224]Mr Williams and Ms Owen then had a meeting with Ms Orban present to take notes at which Mr Williams asked Ms Owen some questions about matters raised in the Claimant’s letters and Ms Owen provided a response (V7/60- 61).

[225]On 23 June 2020 the Prime Minister announced a national easing of lockdown restrictions, and on 24 June 2020 the Respondent announced that some staff would be returning to the office on a voluntary basis (V7/43) from 6 July, including “members of staff who have found working from home difficult and have a preference to return to the office”. Mr Niforas did not communicate that to the Claimant because he understood the Claimant’s case was being dealt with by HR and he did not think he should interfere. That day (V7/50) Ms Owen told Mr Niforas by message that they were still trying to engage with the Claimant to understand if he was well enough to work or remained sick and that she would let him know if she had any further information. Mr Niforas was evidently from this unaware that there had been any prior communication with the Claimant. Ms Owen responded on 25 June (V7/51) that she had spoken to the Claimant once.

[226]By 25 June Mr Niforas was given the go-ahead to recruit temporary resource for sickness cover for the Claimant (V7/52).

[227]On 29 June 2020 Mr Williams wrote to the Claimant setting a new date for the disciplinary hearing for 6 July 2020. This was slightly more than the maximum 5 working days provided for in the Respondent’s policy (V7/55-59). This was again sent to the Claimant by email and courier. The letter made - 69 - clear that the previous disciplinary hearing of 19 June had been postponed. In this letter, Mr Williams stated the Respondent’s understanding that he was currently fit to work (on a phased return basis) and had been fit since 23 March 2020. He indicated that subject to the outcome of the disciplinary hearing, a rescheduled OH appointment would be arranged. Mr Williams and Ms Owen were both working on the basis of their understanding that the Claimant had thus far refused to attend the OH appointment. The letter set out the allegations against the Claimant as follows:- 1. Your unexplained and unauthorised absence from work from 23 March 2020 to date. At the time the original disciplinary invitation letter was sent to you, the only sick note we had on record for you expired on 9 March 2020. However, we have now seen a copy of the sick note you provided with your correspondence of 19 June 2020 which expired on 22 March 2020. 2. Your failure to maintain contact throughout your period of absence. The reporting requirements under MUFG’s sickness absence policy provide that employees are required to keep their line managers informed of their progress and likely return to work date. Numerous attempts to contact you were made by your line manager and Karen Owen as set out in the Appendix enclosed with the original disciplinary invite letter. At the time the original disciplinary invitation letter was sent to you, we had not received a response to you since 23 March 2020.

[228]The Claimant complains that the Respondent acted improperly in amending the allegations to take account of the further sick note he had provided. This is a misguided complaint. The effect of taking into account the further sick note was to improve the position for the Claimant, albeit only slightly because there still remained a long period of unauthorised and unexplained absence and thus clearly a disciplinary case to be answered.

[229]The letter gave the Claimant an opportunity to provide written representations, and stated that if written representations were provided, it would be assumed that the hearing would not proceed and a decision would be made on the basis of written information. The Claimant was offered the opportunity to bring a companion. The letter made clear that the Respondent had not received the Claimant’s sick certificate of 9 March, and that the original letter of 11 June 2020 was not received until 24 June 2020. The letter referred to the Claimant’s references to Black Lives Matter and sought to assure the Claimant that the Respondent was committed to promoting an environment of inclusivity and respect.

[230]On 4 July 2020 the Claimant wrote a letter that he stated was an additional grievance to add to that he had previously raised (V7/69-76). He asked that the Respondent not send any further non-PPE-wearing couriers to his house or he “might seek to report it to the police as a hate crime, racially motivated harassment attempted murder or manslaughter”. The letter was mostly concerned with complaints about Mr Williams who he alleged was abusing power, not impartial or independent. He maintained that the disciplinary hearing had taken place on 19 June and that the proposed second disciplinary hearing was unfair and related to different allegations. He quoted ACAS guidance on unauthorised absence which includes the following: - 70 - “Unauthorised absence is when someone does not come to work and gives no reason for their absence or does not contact their employer. The employer should try to contact the absent employee as soon as possible, including using any emergency contact they have. If contact cannot be made, the employer should discuss the absence with the employee when they come back to work. If the employee cannot provide good reason for the absence and lack of contact, the employer might consider further investigations for possible disciplinary action.”

[231]He argued that the effect of that guidance was that if an employer was unable to contact an employee who was absent without authorisation, they should not attempt to make any further contact or take any disciplinary action until the employee came back to work. He suggested that the Respondent was acting in breach of that guidance in commencing disciplinary proceedings before he had come back to work. We observe that the Claimant’s argument here is misguided and based on an overly literal interpretation of the third sentence of the guidance, which clearly assumes that the absent employee actually returns to work within a relatively short time. It does not mean that where an employer is unable to contact an employee who is absent without authorisation that they cannot commence disciplinary proceedings.

[232]Regarding his medical certificates, he wrote: “You have been advised that the Doctors notes from both Doctors notes remain valid, but are choosing to acknowledge only the information in the second Doctors note; to re-iterate the Doctors notes and letter dated 9 March 2020 is the advice of the Doctor, which should aid my return to work in the office. If you take notice of the evidence of your text messages between me and my manager on 18 March 2020 and 23 Mar 2020 which is the advice of the Doctor to reduce likely issues and aid my return to work i.e. I have to work from the office. I have checked and no one has advised me that the office is open OR confirmed the details as per my letter dated 9 Mar 2020.”

[233]We have already rejected the Claimant’s case that his doctor had advised he had to work from the office. We further observe that the Claimant’s doctor’s notes did not ‘remain valid’ because they were all time-limited and the last one had expired on 23 March 2020. Even the two months proposed in that last sickness note for a phased return had also long-since expired by this point.

[234]The Claimant also complained about not having been provided with the information he sought in his grievance. He suggested that the Respondent - 71 - “have issue with me because of one of the protective characteristics example sex, age, race, colour, disability, etc”.

[235]The Claimant’s letter of 4 July was received by the Respondent on 6 July 2020, just before the scheduled disciplinary hearing was due to start (V7/81, V7/102B). Mr Williams emailed Mr Kyle later that day to state that the hearing would accordingly be heard in the Claimant’s absence and he and Ms Owen arranged to meet the next day (V7/102A). Mr Kyle wrote that there needed to be ‘closure’ on the issue (V7/102B). Mr Williams maintained (and we accept) that he did not regard that as an instruction to him. There was a suggestion in the course of the hearing before us that the re-arranged “hearing” on 7 July referred to by Mr Williams and Ms Owen in their emails was a “hearing” that the Claimant should have been invited to and given another opportunity to attend. On reflection, we do not consider that is realistic. Mr Williams and Ms Owen were just using the word “hearing” because that was what the original scheduled meeting with the Claimant was due to be. Once that had not taken place, all that was happening was that Mr Williams and Ms Owen were meeting to enable Mr Williams to take a decision ‘on the papers’, in much the same way that we as a Tribunal panel might meet on a day after the conclusion of a hearing to deliberate on a case but without the parties attending.

[236]Mr Williams and Ms Owen then duly met and Mr Williams decided that the Claimant should be dismissed. Dismissal

[237]On 15 July 2020 a disciplinary outcome letter (V7/104) was sent to the Claimant’s personal and work email and by courier. Mr Williams concluded that the Claimant had not sent the 9 March 2020 letter enclosing the sickness certificate or 11 June 2020 letter prior to them being hand delivered by the Claimant on 19 June 2020. It was confirmed that Mr Williams still did not have the sick note of 9 March 2020. It was concluded that the Claimant must have been aware of the requirement to submit sickness certificates and that it was unacceptable to wait until return to work to submit a certificate where absence was prolonged. In any event, there had been no sick certificate since 23 March 2020. Mr Williams noted in relation to this that “there is no reference to you only being able to return to work if this involves a physical return to the office”. It was also concluded that the Claimant had received the Respondent’s letter of 24 March 2020 setting out details of a possible return to work on a remote working basis as Mr Williams assumed that the Claimant had access to his work email. Updated medical evidence had not been submitted and the Claimant had not engaged with OH. Under the Respondent’s disciplinary policy “Unauthorised or unexplained absence”, “serious breach of any of the Company’s policies” and “any form of dishonesty” are all listed as potential gross misconduct and it was concluded that the Claimant’s behaviour amounted to gross misconduct. The Claimant’s - 72 - employment was terminated summarily on grounds of gross misconduct (V7/103-110).

[238]Ms Owen notified Mr Syson and Mr Niforas of the dismissal (V7/120), and also Mr Conway (V7/121), who had been identified as the HR person to assist with any appeal the Claimant might make. No severance package

[239]The Claimant complains about the Respondent’s failure to provide him with a severance package on dismissal on 15 July 2020 and compares himself (so far as direct race discrimination) is concerned with Employee 9, Employee 7 and Employee 8. He argues that Employee 8 was paid a discretionary bonus in 2013 notwithstanding being off sick and subject to a 12-month disciplinary warning. This is correct, but the bonus letter on its face explains that decision was taken on an exceptional basis and Employee 8’s circumstances were completely different to those of the Claimant as the Claimant was dismissed for gross misconduct, which is the most serious disciplinary sanction in response to his more serious misconduct. Employee 8 had only been subject to a written warning, he was not dismissed, he resigned and a settlement agreement was reached when he instructed lawyers to act on his behalf and they negotiated one. Likewise, the evidence was that Employee 7 had solicitors negotiate a severance package. He was not dismissed for gross misconduct either. Employee 9 left in July 2015 and was not paid a severance package, as the Claimant accepted at the hearing.

[240]The Claimant also points to the Respondent’s published information on severance payments made to Material Risk Takers (MRTs) on the termination of their employment each year (see eg V5/191-192 and V5/185- 196), but the Respondent’s evidence, which is unsurprising and we accept, is that no employee dismissed for gross misconduct has been paid a severance package. Appeal and ET proceedings

[241]On 20 July 2020 the Claimant posted his appeal letter to Mr Conway. The post code was again incorrect (V7/123-140). In his 17-page, close-typed appeal letter, the Claimant contended (in summary) that sending couriers to his house constituted ‘hate crime’; that his dismissal was unfair; that he had abided by the Respondent’s sick pay policy by providing the sick notes he had provided; that the Respondent had not abided by its disciplinary policy as his line manager had not contacted him about the disciplinary allegations before Ms Owen did; that the Respondent had failed properly to investigate what had become of the Claimant’s letter of 9 March 2020; Ms Owen should not have been involved in the investigation of the matter because she had a ‘direct involvement with the situation’ contrary to the Respondent’s policy; Ms Owen should not have been the person inviting the Claimant to a disciplinary hearing; he had not agreed to the hearing on 19 June 2020 being postponed - 73 - and the ‘alleged’ re-scheduled hearing should have occurred within 5 days of the original date; he argued that as the Respondent had not made all the adjustments he sought in his letter of 9 March 2020 that he should have been treated as if he was still on sick leave; that breaches of sick pay policy could not be treated as disciplinary matters as the sick pay policy was not part of his contract of employment; that “the second unfair hearing on 6 Jul 2020 was also just another attempt to get me to talk about matters which were unrelated to the alleged allegations or to threaten me to work from home or be unfairly dismissed as you are clearly not allowed to use the company sick pay policy” (our emphasis); that investigation had been carried out after the first scheduled disciplinary hearing; the notice he was given for the hearing on 19 June 2020 was too short to allow him to find a companion or prepare; the information provided by the Respondent about the allegations was unclear; at what he maintained was the disciplinary hearing on 19 June 2020 he had not been given any witness statements or opportunities to call or cross-examine witnesses; he should have been referred to OH and that details for the appointment on 15 June 2020 had not been provided and there was no enough time to do anything about the appointment; that he had not been working from home prior to lockdown, that his place of work was the office and no one had asked him to work from home; he made specific complaints about the conduct of Ms Owen, Mr Niforas and Mr Williams; he argued that the Respondent should only have contacted him by ordinary postal letter to his home address and should not have disciplined him for failing to respond to other communications; that the Respondent was using the conduct dismissal as a cloak for staff reductions; summary dismissal was unreasonable given his 10 years’ service with the company; he asked that prior to arranging an appeal hearing, the Respondent should disclose to him various items of information, including the following and about 10 other requests of similar length and complexity: “disclose and provide details of all grievance and disciplinary investigations and grievance disciplinary hearings over the last 6 years or going back further if possible, please include allegations, outcomes, decisions, appeals, appeal decisions, final outcomes, person who conducted the investigation, persons who conducted the hearing and as much information as possible to allow me to understand the issues (including the ethnicity, sex, age, disability, corporate title, salary, pension contribution percentage, department, dates, duration, names, addresses and contact details of persons who brought the grievance or was subject to a disciplinary) – please provide within 5 working days”; he complained he had not been paid a bonus for 2020 and raised again a number of the complaints he had raised in his earlier grievances.

[242]The Respondent’s position is that this letter was not received until 25 September 2020 (V7/194).

[243]In the meantime, by letter of 7 August 2020 Mr Williams provided a specific response to the letter from the Claimant dated 4 July 2020 (V7143-145). This had been taken into account by Mr Williams in deciding to dismiss the Claimant, but he now asked the Claimant if he wished to proceed with his whole grievance with Byrne Dean investigating. The Claimant did not respond. - 74 -

[244]By email of 25 September 2020, a Ms Woods notified Mr Conway that the Claimant’s appeal had been received (V7/194). The Claimant argues that Mr Conway is lying about not having received the appeal letter shortly after 20 July and points to the Respondent’s solicitors training materials (V7/146) as evidence that they had received his appeal earlier. However, the matters highlighted there are entirely generic and raise no reasonable cause for suspicion that the Claimant’s appeal had been received earlier. We accept the Respondent’s evidence, supported by Ms Woods’ email, that the Claimant’s email was first received on 25 September 2020.

[245]Normally, the Respondent’s policy requires an appeal hearing to be arranged within 5 days. Two months had passed before the Claimant’s letter even arrived. Mr Conway then took over a month to write to the Claimant because he was struggling to understand the Claimant’s letter and because of pressure of other work. We accept that these were the reasons. Mr Conway was unaware at this stage of the Claimant’s alleged protected acts relied on in these proceedings, not having read anything more than the dismissal letter at this point.

[246]On 9 October 2020 the Claimant filed his ET1 in these proceedings (PB/1- 20).

[247]On 27 October 2020 Mr Conway wrote to the Claimant to ask if he wished to proceed with an appeal (V7/243). The Claimant did not reply.

[248]On 11 December 2020 Mr Conway followed wrote again to ask if he wished to proceed with an appeal (V7/288). The Claimant did not reply.

[249]On 8 January 2021 Mr Conway wrote to the Claimant informing him that an appeal hearing would be scheduled for 12 January 2021 despite the lack of response (V7/299-300).

[250]At the hearing on 12 January 2021 the Claimant did not dial in.

[251]On 8 February 2021 a Preliminary Hearing in the Employment Tribunal proceedings took place (OB/1-2). At that hearing, the Claimant said, by way of explanation for his non-response to Mr Conway’s communications, that he had thought he should not communicate with the Respondent while the litigation was ongoing.

[252]As a result of this, by letter of 16 February 2021 Mr Conway re-scheduled the appeal hearing for 24 February 2021 (V7/304-5). At this point, an appeal hearing manager was identified by Ms Owen. Mr Robertson agreed to act (V7/303). He had a short 15 minute chat with Ms Owen by way of briefing. Mr Conway then contacted him with information about the appeal (V7/306). Mr Robertson was a peer of Mr Conway, both reporting to the same people. However, he explained that Ms Owen had specifically told him that the Respondent was looking for someone to deal with the matter independently and impartially, and he took his role seriously. He was provided with relevant - 75 - documents in order to consider the Claimant’s appeal. These included some of the letters relied on by the Claimant as including his protected disclosures in relation to requesting adjustments and equal pay data, but he was not aware of the prior history of those matters and in oral evidence denied that they had influenced his thinking at all. We accept Mr Robertson’s evidence as to his approach to the appeal, and his denials that either Ms Owen or Mr Conway sought to steer him in any particular direction. It is apparent to us both from his oral evidence, the questions he asked Ms Owen after the appeal hearing and the appeal outcome letter that Mr Robertson did take his role seriously and applied independent thought to the matters raised by the Claimant.

[253]The appeal hearing was scheduled for 24 February 2021. The Claimant did not attend. His position as explained at this hearing was that he was still waiting to be provided with the further information he had requested. Mr Robertson and Mr Conway proceeded to determine the appeal in his absence. Mr Robertson had some questions for Ms Owen following the appeal, which she answered by email on 8 March 2020 (V7/309).

[254]On 9 March 2021 Mr Robertson sent the Claimant the appeal outcome letter (V7/312-318). In a lengthy and detailed letter he explained why he considered that the process and decision in relation to the dismissal was fair, and that the investigation carried out had been reasonable. He too concluded that the doctor’s notes did not advise that the Claimant could only work in the office. He wrote that the Claimant’s “letter of appeal seems to suggest that you had interpreted that only employees working from home prior to the Covid-19 pandemic would continue to work from home. This is incorrect and in view of many employees working from home since the pandemic began, I do not consider this is a reasonable interpretation for you to have arrived at”. He concluded that the Claimant had failed to work from home or to take any steps to show that he was willing to work from home. He concluded that there was no discrimination and no breach of employment contract.

[255]Further preliminary hearings in these proceedings took place on 10 March 2021 (OB/3-4); 19-20 July 2021 (OB/22-27); and 13-14, 17-18 January 2022 (OB/30-32). Holiday pay

[256]The Claimant considers that he may be owed holiday pay, but does not explain his case on this. The Respondent’s position, which we find to be correct, is that the Claimant was overpaid wages on termination and so this was set off against his holiday pay balance. He was paid in full for 12 days from 16 to 31 July 2020 even though his employment had ended on 15 July 2020. This sum of £2,769.23 was set off against the holiday balance of 10 days (£2,307.69). The Claimant was accordingly overpaid £528.96 by the Respondent, but the Respondent has not sought to recover this (V7/151). - 76 - The law Harassment

The law

[257]By s 40 EA 2010 an employer must not harass any employee or applicant for employment. By 26(1) of the EA 2010 a person harasses another if:(a) they engage in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of (i) violating the claimant’s dignity or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The Claimant relies on the protected characteristics of race, sex and age.

[258]By s 26(4), in deciding whether conduct has the requisite effect, the Tribunal must take into account:(a) the perception of the claimant;

(b) the other circumstances of the case; and

[2011] EWCA Civ 769

[2011] ICR 1390

at [47] Elias LJ focused on the words of the statute and observed: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment”.

[259]While the threshold for the type of acts that may amount to harassment is higher than the detriment threshold for the purposes of direct discrimination, the EAT (Slade J) explained at [31] in Bakkali v Greater Manchester Buses (South) Ltd

[2018] ICR 1481

, that harassment involves a broader test of causation than discrimination and a “more intense focus on the context of the offending words or behaviour”. The mental processes of the putative harasser are relevant but not determinative: conduct may be ‘related to’ a protected characteristic even if it is not ‘because of’ a protected characteristic.

[260]The provisions on harassment take precedence over the direct discrimination provisions: conduct which amounts to harassment does not (save where the harassment provisions are disapplied for the specific protected characteristic) constitute a detriment for the purposes of ss 13 or 27: see EA 2010, s 212(1).

[261]The burden of proof works in the same way as for direct discrimination (below). Direct discrimination

[262]Under ss 13(1) and 39(2)(c)/(d) of the Equality Act 2010 (EA 2010), we must determine whether the Respondent, by dismissing him or subjecting him to any other detriment, discriminated against the Claimant by treating him less favourably than it treats or would treat others because of a protected characteristic. The protected characteristics relied on by the Claimant are race, sex and age.

[263]A detriment is something that a reasonable worker in the Claimant’s position would or might consider to be to their disadvantage in the circumstances in - 77 - which they thereafter have to work. Something may be a detriment even if there are no physical or economic consequences for the Claimant, but an unjustified sense of grievance is not a detriment: see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

[2003] ICR 337

at [34]-[35] per Lord Hope and at [104]-[105] per Lord Scott. (Lord Nicholls ([15]), Lord Hutton ([91]) and Lord Rodger ([123) agreed with Lord Hope.) 264. ‘Less favourable treatment’ requires that the complainant be treated less favourably than a comparator is or would be. A person is a valid comparator if they would have been treated more favourably in materially the same circumstances (s 23(1) EA 2010). However, we may also consider how a hypothetical comparator would have been treated. In some cases construction of a hypothetical comparator may be difficult, and the Tribunal may instead focus on what is the “reason why” question, using any evidence as to how others are treated (whether or not their circumstances are materially the same or not) to inform that assessment: see in particular Shamoon at [8] per Lord Hope and at [109]-[110] per Lord Scott.

[265]The Tribunal must determine “what, consciously or unconsciously, was the reason” for the treatment (Chief Constable of West Yorkshire Police v Khan

[2001] UKHL 48

[2001] ICR 1065

at [29] per Lord Nicholls). The protected characteristic must be a material (i.e non-trivial) influence or factor in the reason for the treatment (Nagarajan v London Regional Transport

[1999] ICR 877

, as explained in Villalba v Merrill Lynch & Co Inc

[2007] ICR 469

at [78]- [82]). It must be remembered that discrimination is often unconscious. The individual may not be aware of their prejudices (cf Glasgow City Council v Zafar

[1997] 1 WLR 1695

, HL at 1664) and the discrimination may not be illintentioned but based on an assumption (cf King v Great Britain-China Centre

[1992] ICR 516

, CA at 528).

[266]If a decision-maker's reason for treatment of an employee is not influenced by a protected characteristic, but the decision-maker relies on the views or actions of another employee which are tainted by discrimination, it does not follow (without more) that the decision-maker discriminated against the individual: CLFIS (UK) Ltd v Reynolds

[2015] EWCA Civ 439

[2015] ICR 1010

especially at [33] per Underhill LJ. What matters is what was in the mind of the individual taking the decision. It is also important to remember that only an individual natural person can discriminate under the EA 2010; the employer will be liable for that individual’s actions, but the legislation does not create liability for the employer organisation unless there is an individual who has discriminated. As Underhill LJ explained in that case at [36]: 36. … I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else’s motivation. If it were otherwise very unfair consequences would follow. I can see the attraction, even if it is rather rough-and-ready, of putting X's act and Y's motivation together for the purpose of rendering E liable: after all, he is the employer of both. But the trouble is that, because of the way [what is now - 78 - the EA 2010 works], rendering E liable would make X liable too …. To spell it out:(a) E would be liable for X's act of dismissing C because X did the act in the course of his employment and—assuming we are applying the composite approach—that act was influenced ’Y's discriminatorily-motivated report.

(b) X would be an employee for whose discriminatory act E was liable under [EA 2010, s 109] and would accordingly be deemed by [EA 2010, s 110] to have aided the doing of that act and would be personally liable. It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation.

[267]However, in that case the Court of Appeal also observed, that where a decision is taken jointly by more than one decision-maker, a discriminatory motivation on the part of one decision-maker will taint the whole decision: ibid at [32].

[268]In relation to all these matters, the burden of proof is on the Claimant initially under s 136(1) EA 2010 to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent has acted unlawfully. This requires more than that there is a difference in treatment and a difference in protected characteristic (Madarassy v Nomura International plc

[2007] EWCA Civ 33

[2007] ICR 867

at [56]). There must be evidence from which it could be concluded that the protected characteristic was part of the reason for the treatment. The burden then passes to the Respondent under s 136(3) to show that the treatment was not discriminatory: Wong v Igen Ltd

[2005] EWCA Civ 142

[2005] ICR 931

. The Supreme Court has recently confirmed that this remains the correct approach under the EA 2010: Efobi v Royal Mail Group Ltd

[2021] UKSC 33

[2021] 1 WLR 38

[269]This does not mean that there is any need for a Tribunal to apply the burden of proof provisions formulaically. In appropriate cases, where the Tribunal is in a position to make positive findings on the evidence one way or another, the Tribunal may move straight to the question of the reason for the treatment: Hewage v Grampian Health Board

[2012] UKSC 37

[2012] ICR 1054

at [32] per Lord Hope. In all cases, it is important to consider each individual allegation of discrimination separately and not take a blanket approach (Essex County Council v Jarrett

UKEAT/0045/15/MC

at [32]), but equally the Tribunal must also stand back and consider whether any inference of discrimination should be drawn taking all the evidence in the round: Qureshi v Victoria University of Manchester

[2001] ICR 863

per Mummery J at 874C-H and 875C-H.

[270]We have also directed ourselves to Bahl v Law Society

[2003] IRLR 640

, in which Gibson LJ provided helpful guidance on the approach to reasonableness and unreasonableness in a discrimination context as follows: 98.. Accordingly, to the extent that the tribunal found discriminatory treatment from unreasonable treatment alone, their reasoning would be flawed and the finding of discrimination could not stand. That is the clear ratio of Zafar and that decision remains unaffected by Anya. The relevance of unreasonable treatment - 79 - 99.. That is not to say that the fact that an employer has acted unreasonably is of no relevance whatsoever. The fundamental question is why the alleged discriminator acted as he did. If what he does is reasonable then the reason is likely to be non-discriminatory. In general a person has good non-discriminatory reasons for doing what is reasonable. This is not inevitably so since sometimes there is a choice between a range of reasonable conduct and it is of course logically possible the discriminator might take the less favourable option for someone who is say black or a female and the more favourable for someone who is white or male. But the tribunal would need to have very cogent evidence before inferring that someone who has acted in a reasonable way is guilty of unlawful discrimination. 100.. By contrast, where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a nondiscriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again, there should be proper evidence from which such an inference can be drawn. It cannot be enough merely that the victim is a member of a minority group. This would be to commit the error identified above in connection with the Zafar case: the inference of discrimination would be based on no more than the fact that others sometimes discriminate unlawfully against minority groups. 101.. The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short, it goes to credibility. If the tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination But it will depend upon why it has rejected the reason that he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not in fact discriminated on the proscribed grounds may nonetheless sometimes give a false reason for the behaviour. They may rightly consider, for example, that the true reason casts them in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the tribunal suggest that there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support a finding of unlawful discrimination itself.

[271]We have also taken account of Network Rail Infrastructure v Griffiths-Henry

[2006] IRLR 865

at [22] where Elias J observed: “(I)t is crucial that the Tribunal at the second stage is simply concerned with the reason why the employer acted as he did. If there is a genuine non-discriminatory reason, at least in the absence of clear factors justifying a finding of unconscious discrimination, that is the end of the matter. It would obviously be unjust and inappropriate to find discrimination simply because an explanation given by the employer for the difference in treatment is not one which the Tribunal considers objectively to be justified or reasonable. If that were so, an employer who selected [for redundancy] by adopting unacceptable criteria or applied them inconsistently could, for that reason alone, then potentially be liable for a whole range of discrimination claims in addition to the unfair dismissal claim. That would plainly be absurd. Unfairness is not itself sufficient to establish discrimination on grounds of race or sex, as the courts have recently had cause to observe on many occasions: see Bahl and the House of Lords decision in Glasgow City Council v Zafar

[1998] ICR 120

.” Indirect discrimination - 80 -

[272]By s 19(1) EA 2010 a respondent discriminates against a claimant if it applies a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of the Claimant’s. By s 19(2) a PCP is discriminatory if:(a) the respondent applies, or would apply, it to persons with whom the claimant does not share the characteristic;

(b) it puts, or would put, persons with whom the claimant shares the characteristic at a particular disadvantage when compared with person with whom the claimant does not share it; and

(c) it puts, or would put, the claimant at that disadvantage. It is a defence (under s 19(2)(d)) for the respondent to show that the PCP is justified as a proportionate means of achieving a legitimate aim.

[273]The burden of proof is on the claimant initially under s 136(1) EA 2010 to establish facts from which the Tribunal could decide, in the absence of any other explanation, that the Respondent has acted unlawfully. In an indirect discrimination case, this means that the claimant must prove the application of the PCP, the particular disadvantage in comparison to others and that the claimant was put at that disadvantage. The burden then passes to the respondent under s 136(3) to show that the treatment was justified. Victimisation

[274]Under ss 27(1) and s 39(4)(c)/(d) EA 2010, the Tribunal must determine whether the Respondent has treated the Claimant unfavourably by dismissing him or subjecting him to any other detriment because he did, or the Respondent believed he had done, or may do, a protected act.

[275]By s 27(2) a protected act includes (so far as relevant in this case): (a) bringing proceedings under the EA 2010; or (c) doing any other thing for the purposes of or in connection with this Act or (d) making an allegation (whether or not express) that a person has contravened this Act (ss 27(2)(a) and (c)). An act is not protected if it is done in bad faith (s 27(3)).

[276]In considering whether an act is a protected act, we must remember that merely referring to 'discrimination' or ‘harassment’ in a complaint is not necessarily sufficient to constitute a protected act as defined. The EA 2010 does not prohibit all discrimination/harassment, it only prohibits discrimination/harassment on the basis of a proscribed list of protected characteristics. The Tribunal must determine whether, objectively, the employee has done enough to convey, by implication if not expressly, an allegation that the Act has been contravened. In Durrani v London Borough of Ealing

UKEAT/0454/2012/RN

, that was not the case where the employee, when questioned, explained that the 'discrimination' complaint was really a complaint of unfair treatment, not of less favourable treatment on grounds of race or ethnicity. The EAT, the then President, Langstaff P, observed as follows at [27]: 27. This case should not be taken as any general endorsement for the view that where an employee complains of "discrimination" he has not yet said enough to bring himself within the scope of Section 27 of the Equality Act . All is likely to depend on the circumstances, which may make it plain that although he does not - 81 - use the word "race" or identify any other relevant protected characteristic, he has not made a complaint in respect of which he can be victimised. It may, and perhaps usually will, be a complaint made on such a ground. However, here, the Tribunal was entitled to reach the decision it did, since the Claimant on unchallenged evidence had been invited to say that he was alleging discrimination on the ground of race. Instead of accepting that invitation he had stated, in effect, that his complaint was rather of unfair treatment generally.

[277]In determining whether something amounts to a detriment, or what the reason for the treatment was, and the burden of proof, we apply the same approach as for direct discrimination. Detriment pursuant to s 44 of the ERA 1996 /automatic unfair dismissal pursuant to s 100 of the ERA 1996 (health and safety)

[278]By s 44(1) ERA 1996 a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that (as relevant here): (c) being an employee at a place where(i) there was no such representative or safety committee, or

(ii) there was a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety; or (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

[279]Section 44 does not apply where the worker is an employee and the detriment in question is dismissal: s 44(4). Such claims must be brought as automatic unfair dismissal claims pursuant to s 100.

[280]By s 100(1) an employee who is unfairly dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is a health and safety matter as defined. The sub-sections are the same as s 44(1) and the Claimant relies on s 100(1)(c), (d) and (e).

[281]In Rodgers v Leeds Laser Cutting

[2022] EWCA Civ 1659

the CA (Underhill LJ giving the judgment of the Court) at [17] agreed with the EAT (HHJ Tayler) that the words “in circumstances of danger which the employee reasonably believed to be serious and imminent” in s 100(1)(d) (which is the same as s 44(1)(d)) require only that it is established that “the employee has a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence”. There is no requirement for there objectively to be any danger. The CA further held that it is necessarily implicit in the sub-section that it applies only where the employee has left the workplace (or proposes to do so, or has not returned) because of the perceived danger rather than - 82 - for some other reason (ibid, [18]). The CA also suggested that the perceived danger must arise at the workplace (although it need not be limited to the workplace). It is not sufficient that the perceived danger arises on the employee’s journey to work (ibid, [19]). All of these observations by the CA were obiter, but we find them persuasive and apply them.

[282]At [21] the CA set out the questions that a Tribunal must ask itself on such cases as follows:- 21. … the questions which the ET has to decide in a case under section 100(1) (d) can be analysed as follows: (1) Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:

(2) Was that belief reasonable? If so:

(3) Could they reasonably have averted that danger? If not:

(4) Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:

(5) Was that the reason (or principal reason) for the dismissal? Questions (1) and (2) could in theory be broken down into two questions, addressing separately whether there was a reasonable belief in the existence of the danger and in its seriousness and imminence; but in most cases that is likely to be an unnecessary refinement.

[283]The same questions must also be asked under s 44, save that so far as a detriments claim under s 44 is concerned, the CA’s fifth question becomes whether that reason materially influenced the person who subjected the Claimant to a detriment, taking the same approach to causation as for direct discrimination cases. Detriment for making protected disclosures pursuant to s 47B ERA 1996

[284]Under s 47B(1) ERA 1996, a worker has a right not to be subjected to a detriment by any act or deliberate failure to act on the part of her employer done on the ground that the worker has made a protected disclosure. Under s 47B(1A)(a) ERA 1996 a worker has the same right not to be subjected to a detriment by another worker of the employer done in the course of that other worker’s employment.

[285]The same approach to ‘detriment’ is to be applied in whistle-blowing cases as in discrimination cases: Tiplady v City of Bradford MDC

[2019] EWCA Civ 2180

[2020] ICR 965

at [42].

[286]Section 43A ERA 1996 defines a protected disclosure as a qualifying disclosure, which is in turn defined in s 43B(1) as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show one or more” of a number of types of wrongdoing. These include, (b), “that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”. - 83 -

[287]A qualifying disclosure must be made in circumstances prescribed by other sections of the ERA, including, under section 43C, to the worker’s employer.

[288]In the light of Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] ICR 325

, [24]-[26], it was for a time suggested that a mere allegation could not constitute a disclosure of information. However, in Kilraine v Wandsworth LBC

[2018] ICR 1850

the Court of Appeal clarified (at [30]-[36]) that “allegation” and “disclosure of information” are not mutually exclusive categories. What matters is the wording of the statute; some ‘information’ must be ‘disclosed’ and that requires that the communication have sufficient “specific factual content”. In Simpson v Cantor Fitzgerald Europe

[2020] EWCA Civ 1601

[2021] ICR 695

the CA at [53] approved the approach of the EAT (

UKEAT/0016/18/DA

) at [42] in relation to the use of questions in an alleged protected disclosure, holding that the fact that a statement is in the form of a question does not prevent it being a disclosure of information if it “sets out sufficiently detailed information that, in the employee’s reasonable belief, tends to show that there has been a breach of a legal obligation”.

[289]Information disclosed in cumulative communications can constitute a single protected disclosure; whether it does is a question of fact: Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

, approved in Simpson v Cantor Fitzgerald Europe ibid at [41].

[290]A 'disclosure of information' can take place when the information being communicated is already known to the recipient. This is clear from section 43L(3) ERA 1996, and was confirmed by the Employment Appeal Tribunal in Parsons v Airplus International Ltd (

UKEAT/0111/17/JOJ

[291]What must be established in each case is that the Claimant has a reasonable belief that the information disclosed tends to show one of the matters in s 43B(1), i.e. that the information disclosed ‘tended to show’ that someone had failed, was failing or was likely to fail to comply with one of the legal obligations set out there. ‘Tends to show’ is a lower hurdle than having to believe the information ‘does’ show the relevant breach or likely breach: see Twist DX Limited v Armes (

UKEAT/0030/20/JOJ

) [66]. The word “likely” appears in the section in connection with future failures only, not past or current failings where what is required is that the Claimant reasonably believe that the information disclosed ‘tends to show’ actual failures.

[292]In the light of Babula v Waltham Forest College

[2007] EWCA Civ 174

[2007] ICR 1026

, [74]-[81], what is necessary is that the Tribunal first ascertain what the Claimant subjectively believed. The Court of Appeal in Ibrahim v HCA International Ltd

[2019] EWCA Civ 2007

[2020] IRLR 224

(see especially [14]-[17] and [25]) has confirmed that it is the Claimant’s subjective belief that must be assessed when considering the public interest element as well. The Tribunal must then consider whether the Claimant’s belief in both respects was objectively reasonable, i.e. whether a reasonable person in the Claimant’s position would have believed that all the elements of s 43B(1) were satisfied, specifically that the disclosure was in the public interest, and - 84 - that the information disclosed tended to show that someone had failed, was failing or was likely to fail to comply with a relevant legal obligation. The Court of Appeal in Babula emphasised that it does not matter whether the Claimant is right or not, or even whether the legal obligation exists or not. As such, it is not necessary that the disclosure identify or otherwise refer to the legal obligation (or any of the matters in s 43B(1)), although whether it does or not may be relevant to the reasonableness of the claimant’s belief that the information disclosed tends to show a relevant breach: see Twist DX Limited v Armes (

UKEAT/0030/20/JOJ

) at [87] and [103]-[104] per Linden J.

[293]The reasonableness of the worker’s belief is determined on the basis of information known to the worker at the time the decision to disclose is made: Darnton v University of Surrey

[2003] ICR 615

. It is to be assessed in the light of all the surrounding circumstances and as such witness evidence will be relevant to determining whether or not a written disclosure satisfies the statutory requirements or not. What was or was not known to the Claimant and relevant witnesses at the time will be relevant to whether or not the Claimant could reasonably believe that the disclosure met the statutory requirements: see Twist ibid at [57]-[59].

[294]Prior to the amendment to s 43B of the ERA 1996 (by the Employment and Regulatory Reform Act 2013, s 17) to introduce the ‘public interest’ requirement, it had been held (in Parkins v Sodexho

[2002] IRLR 109

) that a disclosure concerning a breach of the employee’s own contract could be a protected disclosure. In Chesterton Global and anor v Nurmohamed

[2017] EWCA Civ 979

[2018] ICR 731

the Court of Appeal (per Underhill LJ at [36]) made the following observations about the policy intent of the introduction of the ‘public interest’ requirement: The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers—even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest.

[295]The Court of Appeal in that case approved guidance formulated by counsel as to the matters that may be relevant to assessing the reasonableness of - 85 - the Claimant’s belief in the matter being a matter of public interest which included the following ([34]):(a) the numbers in the group whose interests the disclosure served [see above];

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed—a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

(c) the nature of the wrongdoing disclosed—disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

(d) the identity of the alleged wrongdoer—as Mr Laddie put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, ie staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest”—though he goes on to say that this should not be taken too far.

[296]If a protected disclosure has been made, the Tribunal must consider whether the Claimant has been subjected to a detriment “on the ground that” he made a protected disclosure (s 47B(1)). This means that the protected disclosure must be a material factor in the treatment: Fecitt v NHS Manchester

[2011] EWCA Civ 1190

[2012] ICR 372

at [43] and [45]. This requires an analysis of the mental processes of the worker who is alleged to have subjected the claimant to a detriment. In order for a decision-maker to be materially influenced by a protected disclosure, they must have personal knowledge of it: see Malik v Cenkos Securities Plc (

UKEAT/0100/17/RN

) at [85]-[87]. As Choudhury J explains there, that is because in whistle-blowing cases, as in discrimination, the focus is on what is in the mind of the individual alleged to have subjected the claimant to a detriment. As was held in the discrimination case of CLFIS (UK) Limited v Reynolds

[2015] IRLR 562

, it is not permissible to add together the mental processes of two different individuals for the purposes of a whistleblowing detriments claim: see per Choudhury P in Malik v Cenkos Securities Plc (

UKEAT/0100/17/RN

) at [93].

[297]The burden of proof is on the Claimant to establish a protected disclosure was made, and that he or she was subject to detrimental treatment. However, s 48(2) provides that it is then “for the employer to show the ground on which any act, or deliberate failure to act, was done”. It has been held that, although the burden is on the employer, the Claimant must raise a prima facie case as to causation before the employer will be called upon to prove that the protected disclosure was not the reason for the treatment: see Dahou v Serco Ltd

[2016] EWCA Civ 832

[2017] IRLR 81

at [40] (deciding this point so far as dismissal cases are concerned, persuasive obiter on the same point for detriment cases). As such, the section creates a shifting burden of proof that is similar to that which applies in discrimination claims under s 136 of the Equality Act 2010 (EA 2010). Unlike in discrimination claims, though, if the employer fails to show a satisfactory reason for the treatment, the Tribunal is not bound to uphold the claim. If the employer fails to establish a satisfactory - 86 - reason for the treatment then the Tribunal may, but is not required to, draw an adverse inference that the protected disclosure was the reason for the treatment: see International Petroleum Ltd v Osipov and ors

UKEAT/0058/17/DA

and

UKEAT/0229/16/DA

at [115]-[116] and Dahou ibid at [40]. Unfair dismissal (including automatic unfair dismissal pursuant to s 100(1) ERA 1996 and/or s 103A and/or s 104)

[298]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is a potentially fair reason falling within subsection (2), i.e. conduct, capability, redundancy, or some other substantial reason (SOSR) of a kind such as to justify the dismissal of an employee holding the position which the employee held. A reason for dismissal is the factor or factors operating on the mind of the decision-maker which cause them to make the decision to dismiss (cf Abernethy v Mott, Hay and Anderson

[1974] ICR 323

, 330, cited with approval by the Supreme Court in Jhuti v Royal Mail Ltd

[2019] UKSC 55

[2020] ICR 731

at [44]). There are exceptions to that approach, as identified in Jhuti, and we have borne the principles in Jhuti in mind in considering the Claimant’s case.

[299]By s 103A an employee is to be regarded as automatically unfairly dismissed if the sole or principal reason for dismissal is that the employee has made a protected disclosure (defined as set out above in relation to whistleblowing detriments claims).

[300]Section 104(1) ERA 1996 provides that an employee who is dismissed shall be regarded for the purposes of Part X of the ERA 1996 as unfairly dismissed if the reason or principal reason for the dismissal is that the employee … (b) alleged that the employer had infringed a right of his which is a relevant statutory right. Sub-para (2) provides that it is immaterial for this purpose whether or not the employee has the right, or whether or not the right has been infringed, although the allegation must have been made in good faith. Sub-para (3) further provides that is sufficient that the employee, without specifying the right makes it reasonably clear to the employer what the right claimed to have been infringed was. The relevant statutory rights include (s 104(4)(a)) any right conferred under the ERA 1996 that is enforceable by way of complaint to an Employment Tribunal.

[301]Automatic unfair dismissal under s 100 we have already dealt with above.

[302]In this case, the Claimant must raise a prima facie case that the sole or principal reason for his dismissal was that he had made protected disclosures or asserted a statutory right. If he does, then it is for the Respondent to prove that the protected disclosures were not the sole or principal reason for the dismissal: see Dahou v Serco Ltd

[2016] EWCA Civ 832

[2017] IRLR 81

held at [29]-[30]. - 87 -

[303]Once a potentially fair reason for dismissal is established, the Tribunal must consider whether it was fair in all the circumstances, taking into account the size and administrative resources of the employer, to dismiss the employee for that reason: s 98(4).

[304]Where conduct is relied on as the reason for dismissal, in determining whether dismissal is fair in all the circumstances under s 98(4), the Tribunal must be satisfied that the employer has a genuine belief that the employee committed the misconduct in question, and that that belief is held on reasonable grounds, the employer having carried out such investigations as are reasonable in all the circumstances of the case: BHS Ltd v Burchell

[1980] ICR 303

and Foley v Post Office

[2000] ICR 1283

[305]Not every procedural error renders a dismissal unfair, the fairness of the process as a whole must be looked at, alongside the other relevant factors, focusing always on the statutory test as to whether, in all the circumstances, the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee: Taylor v OCS Group Ltd

[2006] ICR 1602

at [48]. A failure to afford the employee a right of appeal may render a dismissal unfair (West Midlands Cooperative Society v Tipton

[1986] AC 536

), and a fair appeal may cure earlier defects in procedure (Taylor v OCS Group ibid), but an unfair appeal will not necessarily render an otherwise fair dismissal unfair. Unfairness at the appeal stage is always relevant and may render a dismissal unfair even if dismissal was fair in all other respects, but not necessarily: it is a matter for assessment by the Tribunal on the facts of each case: Mirab v Mentor Graphics (UK) Limited (

UKEAT/0172/17

) at [54] per HHJ Eady QC. It follows from OCS that a fair appeal may remedy even wholesale unfairness at the first stage, but whether it does or not is a question of fact to be determined by the Tribunal in all the circumstances of the particular case.

[306]In reaching a decision, the Tribunal must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.

Conclusions

[307]We now set out our conclusions on each of the Claimant’s claims, addressing first of all the matters that the Claimant relies on as protected acts / protected disclosures / assertions of statutory right / health and safety issues. As there are a large number of these matters, falling under different statutory headings, for convenience where we need to in this judgment refer to all of these matters together we refer to them as his “Protected Acts” with capital letters to signify that we encompass all of the things that the Claimant says - 88 - he has done, by reference to his various statutory rights, in respect of which he alleges he has suffered detriments or was dismissed. We deal first with whether these Protected Acts meet the respective statutory definitions and who knew about them. We then deal in turn with each of the items in the Practical Working List of Issues that we provided to the parties at the start of the hearing. Although we have analysed below whether the various Protected Acts relied on by the Claimant met the statutory definitions for the purposes of the various claims, where we conclude that they do not, we have nonetheless in our conclusions on the substantive claims considered whether, if we had found the Protected Act in question constituted a protected act or protected disclosure (etc), we would have found the Claimant’s claims succeeded or not. Protected acts relied on for the purposes of the victimisation claims under EA 2010, s 27

[308]By way of protected acts for the purposes of his victimisation claims, the Claimant relies first on his requests for reasonable adjustments made on 3 April 2019, 9 March 2020, 18 March 2020, 23 March 2020 and 19 June 2020. Regarding those, we find as follows. In each case, we set out both whether we find the communications amount to protected acts, and who knew about them:-a. 3 April 2019 – we do not accept that this letter, which is the Claimant’s first request for adjustments, constitutes a protected act. While a request for reasonable adjustments because of a disability would constitute a ‘thing done for the purposes of or in connection with this Act’ for the purposes of s 27(2)(c), the Claimant’s letter does not mention a disability and nor could it in our judgment reasonably be understood as relating to a claimed disability. The Claimant had only been off work for a short period with stress. The ‘adjustments’ sought did not on their face obviously relate either to stress or any other particular long-term medical condition. Having regard to the guidance in Durrani, we do not therefore consider it constitutes a protected act. The letter was sent to Ms Owen and on the evidence before us was not shared with anyone else that the Claimant alleges has treated him unlawfully in these proceedings;

b. 9 March 2020 – this is the Claimant’s letter that accompanied his sick note of the same date. The letter was first received by the Respondent (Ms Owen and Mr Williams) on 19 June 2020. We do not accept that, viewed in isolation, it constitutes a protected act as it refers only generically to adjustments, discrimination, bullying, harassment, victimisation without reference to any protected characteristic and on the basis that he had only been off work for a short period when it was first written, we do not consider that it could reasonably be inferred to refer to a claimed disability, nor to any particular protected characteristic. Applying Durrani again, therefore, it is not a protected act; - 89 -

c. 18 March 2020 – this is a text message to Mr Niforas that just refers to the Claimant being signed for stress at work. The Claimant had not been signed off for long at this point and we consider this brief message cannot reasonably be construed as referring to the protected characteristic of disability under the EA 2010;

d. 23 March 2020 – this was the Claimant’s text message to Mr Niforas. This is also a ‘high level’ message that says even less than the 9 March 2020 letter and we do not consider it can reasonably be construed as constituting a protected act;

e. 19 June 2020 – we accept that this letter, with its references to discrimination, victimisation, equal pay, and “Black Lives Matter – or do they at MUFG” constitutes a protected act.

[309]The Claimant also relies on what he describes as his disclosure requests in relation to equal pay on 26 Mar 2019, 6 Jun 2019, 24 Jul 2019, 18 Oct 2019, 29 Jan 2020, 11 Jun 2020, 4 Jul 2020, 20 Jul 2020, 24 Nov 2020 and 22 Jan 2021. Regarding those, we find as follows:-a. The request of 26 March 2019 was not a protected act as the request was made in the context of the Claimant’s complaint about the Respondent’s changes to his terms and conditions. It made no reference to equal pay or anything else under the EA 2010;

b. We are – just – persuaded that the Claimant’s grievance of 6 June 2019 constitutes a protected act. The Claimant relies on it as being a disclosure request in relation to equal pay, but it does not actually say that is what it is, and the requests for pay data are made in relation to multiple different criteria, not just sex, so that it is not obvious that it is a request for equal pay data. However, the grievance does refer expressly to the EA 2010 and we are just persuaded that, read as a whole, this can be construed as a protected act in relation to equal pay. We give the Claimant the benefit of the doubt in part because the grievance plainly does contain a protected act in relation to an allegation of age discrimination as he complains about more favourable treatment of younger employees and we consider it would be wrong to turn a blind eye to this although it was not the element of the grievance relied on by the Claimant. This grievance was, on our factual findings, only ever seen by Ms Owen (and the Respondent’s lawyers and data protection officer) and she did not communicate this aspect of the content of the grievance to anyone;

c. Insofar as the Claimant’s emails of 24 July 2019, 18 October 2019 and 29 January 2020 refer back to his original grievance, we accept they also constitute protected acts for the same reasons. They too were only ever seen by Ms Owen (as material for our purposes); - 90 -

d. The Claimant’s letter of 11 June 2020 was not received by Ms Owen and Mr Williams until 19 June 2020. We do not consider that this letter includes a protected act in relation to equal pay, but it plainly does constitute a protected act insofar as it makes explicit allegations of race discrimination. Again, although this was not the basis on which the Claimant relied on this letter, we consider it would be wrong to turn a blind eye to the allegations of race discrimination in this letter. We therefore treat this as a protected act for the purposes of our conclusions, although if we found that the Claimant had been victimised because of this protected act he would in our judgment in principle need to apply to amend in the light of our judgment;

e. The Claimant’s further communications of 4 Jul 2020, 20 Jul 2020, 24 Nov 2020 and 22 Jan 2021, we accept constituted protected disclosures on the basis that they all refer back to the 4 July 2020 letter which does include a complaint about not having been provided with the information sought in his grievance and suggests that the Respondent “have issue with me because of one of the protective characteristics example sex, age, race, colour, disability, etc”. Alleged protected disclosures relied on for the purposes of the PID claims:

[310]We accept that the Claimant’s reporting of client money breaches in 2012 and 2013 met the definition of a protected disclosure as the Respondent subjected employees to disciplinary proceedings for failure to comply with FCA requirements in relation to client money. Given that, although the evidence we have on this is limited, we are prepared to accept the Claimant’s evidence that he did disclose information that reasonably tended to show a failure to comply with a legal obligation and that this was a disclosure in the public interest. However, no one who the Claimant has complained about in these proceedings knew that the Claimant had made these disclosures and so they cannot have been any part of the reasons for any of the treatment about which he complains.

[311]On 14 January 2020 the Claimant disclosed to Ms Owen in writing that he “would report the health and safety assessment failure, which had gone on for over 8 months to the HSE and/or local authority”. We accept that this constituted a disclosure of information to Ms Owen about the position regarding his workstation assessment that he subjectively believed tended to show a failure to comply with a breach of a legal obligation in relation to health and safety, and which it was reasonable for him to regard as such given the delay in action by the Respondent. We are less convinced about the public interest element. We accept that the Claimant subjectively believed it was in the public interest as he considered it was an HSE matter, but we do not accept this belief was reasonable. The alleged failure concerned only the Claimant; it was regarding a workstation assessment and thus not in our judgment a health and safety failing of wider public interest; it concerned a workstation assessment which had been delayed through administrative error/oversight and which he had not, until this email, chased in the way a - 91 - reasonable employee would have done, so that he had in our judgment no justification for regarding it as a serious or deliberate failure. This was not therefore a protected disclosure within the statutory definition. In any event, apart from Ms Owen, none of the other individuals against whom the Claimant has made allegations in these proceedings knew of this alleged protected disclosure.

[312]The Claimant alleges that in his letter of 11 June 2020 (which was received by Ms Owen and Mr Williams on 19 June 2020) he disclosed to Ms Owen in writing that bullying, harassment, discrimination and victimisation and a failure to make reasonable adjustments placed him in imminent danger. His letter does not quite say that, but we accept that it constituted a protected disclosure. We have already found that it contained allegations of race discrimination that amounted to protected acts for the purposes of the s 27 of the EA 2010. We further find that the content of the letter disclosed information that in the Claimant’s subjective belief tended to show he had been unlawfully discriminated against and we further find that his belief that the letter contained such information was objectively reasonable. Given the importance of discrimination law, we also accept that this met the public interest test (subjectively and objectively). (We emphasise that this does not mean that we consider anyone reading the letter would consider that the Claimant had disclosed information that tended to show that he had been treated unlawfully, just that it was reasonable for him to consider that he had conveyed information that, if true, tended to show that.)

[313]We do not, however, consider that the 11 June 2020 letter contained a protected disclosure about non-PPE wearing couriers, as we understand the Claimant to allege. All the letter states is: “You have sent several people to my house, not once, not twice, but on at least three separate occasions, totalling a minimum of at least 5 different people, putting my life at risk.” While we are prepared to accept that the Claimant had a subjective belief that the couriers were putting his life at risk, we do not consider that the information disclosed in this letter could reasonably have been regarded by him as tending to show that. We have already observed in the course of our findings of fact that the Respondent did not know the couriers would not wear PPE, and that in any event no evidence has been provided (and nor are we aware of any from our own general knowledge and experience) to suggest that the brief interaction with a courier that would be necessary to receive a letter would pose any risk of Covid-19 infection. The postal service continued throughout the pandemic, delivering post across the country. Those who were especially cautious were able if they wished to make arrangements to quarantine their post. As, indeed, the Claimant effectively did by not answering the door to any of the couriers, each of whom in the end placed the letters for the Claimant in his mailbox situated near the entrance to the block of flats in which he lives. As such, we find that there was, objectively, no risk to the Claimant from the couriers. Further, the information he put in the letter of 11 June 2020 does not even include the information that the couriers were not wearing PPE. As such, it does not meet the threshold for a protected disclosure. - 92 -

[314]The Claimant also relies as protected disclosures on his grievances of 6 June 2019, 29 January 2020, 19 June 2020 and 4 July 2020. We have already concluded that the grievance of 6 June 2019 met the definition of protected act for the purposes of s 27 of the EA 2010. We further accept for the same reasons that it met the definition of protected disclosure for the purposes of s 47 ERA 1996, on the basis that discrimination allegations can inherently reasonably be regarded as a matter of public interest. As such, as the subsequent additions to that grievance on 29 January 2020, 19 June 2020 and 4 July 2020 supplement or repeat the initial grievance and form part of a sequence, we accept that they all constituted protected disclosures. The grievances of 6 June 2019 and 29 January 2020 were, however, only seen by Ms Owen (of the individuals with which we are concerned). The letters of 19 June 2020 and 4 July 2020 were additionally seen by Mr Williams, and subsequently by Mr Robertson and Mr Conway. Allegations of infringement of statutory rights relied on ERA 1996, s 104 claim:

[315]The Claimant relies first on his requests for reasonable adjustments in his communications of 3 April 2019, 9 March 2020, 18 March 2020, 23 March 2020 and his allegation of failure to make reasonable adjustments in his letter of 19 June 2020. We cannot construe any of these communications as an allegation that a statutory right of his under the ERA 1996, TULR(C)A 1992 or the WTR 1998 had been infringed. If those communications related to any statute, it was the EA 2010, which is not one of the relevant statutory rights for the purposes of s 104.

[316]The Claimant relies on complaints he made in relation to his pension rights on 6 June 2019, 29 January 2020, 19 June 2020 and 4 July 2020. As these communications refer to each other and include express allegations of breach of statutory rights including unlawful deduction from wages, holiday pay and pensions, we accept that these constitute allegations of breaches of statutory rights for the purposes of s 104 ERA 1996.

[317]The Claimant also relies on his requests for disclosures in relation to equal pay made on 26 Mar 2019, 6 Jun 2019, 24 Jul 2019, 18 Oct 2019, 29 Jan 2020, 11 Jun 2020, 4 Jul 2020, 20 Jul 2020, 24 Nov 2020 and 22 Jan 2021. We have already set out above our analysis of whether many of these communications could be construed as requests for disclosures in relation to equal pay. We found that some of them – just – could be. However, a request for disclosure is not the same as an allegation of infringement (even allowing for the fact that the sex equality clause in EA 2010, s 66 means that complaints of discrimination in relation to pay can in principle be brought as unlawful deductions from wages claims under the ERA 1996). We do not accept therefore that these communications constituted allegations for the purposes of the s 104 ERA 1996 claim. In any event, the only two of these communications of which Mr Williams was aware of (i.e. the person who decided to dismiss the Claimant) were the letters of 11 June and 4 July 2020. - 93 - Health and safety issues

[318]As to the health and safety matters relied on by the Claimant as reasons for detriments claimed under ERA 1996, s 44 and/or automatic unfair dismissal under s 100, we find as follows:-

[319]First, the Claimant relies on communications of 3 April 2019, 6 June 2019, 24 June 2019, 18 October 2019, 14 January 2020, 29 January 2020, 4 February 2020, 9 March 2020, 18 March 2020, 23 March 2020, 19 June 2020 and 4 July 2020 (Grievance) as being communications where he brought to the Respondent’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety. It is not apparently contended by the Respondent that the Respondent had a health and safety representative or committee to whom the Claimant should have gone first. We accept that the Claimant in each of these communications brought to the Respondent’s attention by reasonable means circumstances connected with his work that he reasonably believed were harmful or potentially harmful to his health and safety, either physical (workstation arrangements) or mental (workstation arrangements and allegations of discrimination and harassment).

[320]Secondly, we deal with the Claimant’s case that “in circumstances of danger which the Claimant reasonably believed to be serious and imminent and which he could not have reasonably been expected to avert, the Claimant left (or proposed to leave) or (while the danger persisted) refused to return to his place of work on 23 March 2020, 11 June 2020, 19 June 2020 and 4 July 2020”. The alleged danger relied on is:(i) the risk of harm to the Claimant’s health of the Respondent’s alleged failure to make reasonable adjustments; and

(ii) (in relation to dismissal) the risk of Covid exposure from the Respondent sending couriers to his house.

[321]Regarding (i), the alleged risk of harm to the Claimant’s health of the Respondent’s alleged failure to make reasonable adjustments, we do not consider that this meets the statutory criteria. The adjustments that the Claimant requested in his 9 March 2020 letter were: a new PC; privacy, antiglare and anti-blue light screens fitted to all monitors; “all health and safety recommendations to be completed”; and “I will not be bullied, victimised, harassed, discriminated or suffer any other detriment”. The only health and safety recommendation in the Roodlane report that consisted of something the Respondent was to provide, rather than a strategy to be followed by the Claimant, that was not specifically mentioned by the Claimant in his 9 March letter was the provision of a headset.

[322]While we accept that the Claimant subjectively believed that there was a serious and imminent risk to his health from these matters, we do not consider the statutory criteria are met because:-a. It was not reasonable for the Claimant to regard the Respondent’s failures as constituting a serious and imminent danger to his health. The provision of a new PC was not a health issue at all. It was not - 94 - recommended by Roodlane, but was a preference of the Claimant. Privacy screens were not a health issue either, and not recommended by Roodlane. Anti-glare and anti-blue light screens were recommended by Roodlane, but the reason for this is not stated in the report. There is nothing to suggest that not having them posed a serious and imminent danger to the Claimant’s health. They were apparently recommended by his optician in April 2019 as a possible way of alleviating headaches, but that was 9 months previously and there is no evidence that his headaches got significantly worse over that period, or that the right screens would have alleviated the headaches, or that these were serious headaches (in this respect we remind ourselves that EJ Adkin’s found that the Claimant was not disabled by virtue of headaches), so in all the circumstances we are not satisfied that he could reasonably regard the failure to provide these screens as constituting a serious and imminent danger to his health. The phone headset was a long-standing issue in respect of which there is also no medical evidence of need (save for the Roodlane recommendation) and could not reasonably be regarded as posing a serious and imminent danger. (Indeed, given that the Claimant did not mention the phone headset in his letter of 9 March 2020, we are not satisfied that he even subjectively believed that the failure to provide this posed any risk.) Finally, while we accept that in certain limited respects (in particular regarding equipment requests), it was reasonable for the Claimant to consider that he was being badly treated by the Respondent (even though we have concluded he was not treated unlawfully), we do not consider it was reasonable for the Claimant to regard himself as having been subject to a serious campaign of bullying, victimisation, harassment, discrimination or other detriment, or that it was reasonable for him to believe that such treatment as he had received posed a serious and imminent danger to his health. Our reasons for that conclusion are to be found in our assessment of all the Claimant’s other claims in these proceedings; further,

b. We consider that any danger there was, the Claimant could reasonably have been expected to avert. There were many steps the Claimant could reasonably have taken to deal with the issues that he has identified as dangers, including: waiting the short time necessary for Mr Zemaitis to source the anti-glare screen; speaking to Mr Zemaitis and/or Mr Niforas and/or Ms Owen (multiple times if necessary) until the missing equipment was secured; investigating alternatives to the anti-blue light screen, with advice/assistance from Roodlane as necessary (such as anti-blue light glasses); seeking or (later) agreeing to a referral to OH; and/or agreeing to his grievance being investigated as proposed by Ms Owen so that his concerns about bullying etc could be considered and addressed.

[323]We therefore conclude that to the extent that the Claimant was after 6 February 2020 refusing to work or return to work because of these alleged - 95 - dangers, he did not meet the statutory criteria in ss 44 and 104 ERA 1996 for protection from detrimental action or dismissal for that refusal.

[324]Regarding (ii), the risk of Covid exposure from the Respondent sending couriers to his house, the Claimant’s case is misconceived for the following reasons:-a. The Claimant did not as a matter of fact leave or refuse to return to his place of work because the Respondent was sending couriers to his house. That was not his case and is not what happened;

b. Even if the Claimant’s workplace was supposed to be his home from mid-March 2020 onwards, the couriers were not part of that workplace and any danger from them did not ‘arise’ at his workplace. They only came to his door and would never, in the ordinary course, even if he had opened the door to them, have crossed the threshold into his home;

c. It was not reasonable for the Claimant to regard the couriers as posing any threat to health, let alone a serious and imminent one for the reasons we have already set out in assessing the reasonableness of the Claimant’s belief he had made a protected disclosure about the couriers;

d. The Claimant could and did avert any risk there was by not opening the door to the couriers. (1) Mr Niforas’ failure to put the Claimant up for promotion 2015-2020 (direct race/sex/age discrimination/PID detriment/victimisation)

[325]Our findings of fact in relation to the promotion issue are in the section beginning at paragraph Error! Reference source not found. above, with our findings in relation to potential comparators in the section beginning at paragraph 81 above. We have also made findings of fact about the Claimant’s attempts to compare himself with Employee 10 at paragraphs 46-47, and findings regarding the Claimant’s pay in comparison to his peers in the section beginning at paragraph 84. All those findings must be read together with these conclusions.

[326]We make a preliminary observation, relevant both to this issue and the others we have to consider. The Claimant in his grievance of 6 June 2019 stated his belief that, “anywhere one employee is entitled to receive more than another employee regardless of corporate title is discrimination” and asked “to be given the same notice period as the person with the longest notice period to ensure no discrimination occurs” and “the same rate of pay as a Director” for Weekend/Bank Holiday pay, thus “removing the discrimination”. We observe that the Claimant’s understanding of what constitutes discrimination as set out in the grievance is incorrect because, as we have set out above in The - 96 - Law section, it is not unlawful discrimination to treat a person with one protected characteristic less favourably than a person with a different protected characteristic. Indeed, that is not even enough to shift the burden of proof. For the burden of proof to shift, the Claimant has to have evidence from which we could conclude that the protected characteristic is a material part of the reason for the treatment. Unfortunately, the Claimant’s misunderstanding about what constitutes discrimination, as set out in his grievance, appears to have shaped the Claimant’s approach to these proceedings as a whole. Thus, he has named as comparators a large number of people who are not black or male or who are either older or younger than him, who he believes have been treated differently to him, but he has done so regardless of whether their circumstances were in any way comparable to his own, and regardless of whether there is anything to suggest that the reason for the difference in treatment is a prohibited reason. He has also, in relation to his promotion claims, relied in each year on different protected characteristics and/or suggested that the ‘discrimination’ was because he had done Protected Acts, varying each year according to the happenstance of the identity of the comparator he has named for that year. It is truly a ‘scattergun’ claim.

[327]So far as the Claimant’s complaints about not being put forward for promotion are concerned, we accepted as fact the reasons that Mr Niforas gave for why the Claimant was not promoted and others were promoted were his genuine, reasonably-held conscious views, and that they reflected the Respondent’s promotion criteria as they applied from year to year. We also found as a fact that Mr Niforas inherited the situation of the Claimant being an AVP and Employee 10 being a VP and that he had genuine and reasonable grounds for believing that there was nothing wrong or unfair about that state of affairs. We further made findings of fact that the Claimant became aggrieved about not being promoted as early as 2015 and 2016, in which years it was wholly unrealistic to expect promotion as he had not been three years in grade and there were no other circumstances that merited promotion at that point, and that subsequently the Claimant’s failure to put himself forward for promotion at any point after 2016, his career break and his refusals to accept changes to his terms and conditions, dual-hatting and performance management all contributed to his not being in a position where promotion was a realistic possibility. We also considered the evidence about the pay of the Claimant and some of his colleagues. This evidence could only shed light on Mr Niforas’ motivations regarding promotion insofar as the pay decisions in question were influenced by Mr Niforas, and for the most part they were not. In the section beginning at paragraph 84, we explain why, save in one respect, we were satisfied that the Claimant was receiving more than AVP colleagues in comparable situations and/or why there were explanations for differences in pay that on the face of it had nothing to do with race, sex or age. We also explained why we were satisfied that even if a question about the difference between the Claimant’s and Employee 3’s and Employee 6’s pay remains to be considered in due course as part of his equal pay claim, we have concluded that this has no bearing on the issues we have to decide. - 97 -

[328]What remains is for us to consider whether, these facts notwithstanding, we should draw any inference that the Claimant’s race, sex or age influenced Mr Niforas’ decision-making in relation to promotion. However, the Claimant has not adduced any evidence from which we could reach that conclusion. Given the centrality of the line manager to the promotion nomination process, we do not consider any sensible comparison can be made between the Claimant and people who were put forward for promotion by other managers. So far as Mr Niforas’ decisions are concerned, no named comparator has been treated more favourably by Mr Niforas than the Claimant in materially similar circumstances, and we do not consider a hypothetical comparator, identical to the Claimant in all respects save his protected characteristics, would have been treated any differently either. Indeed, the evidence we have received about other individuals in relation to promotion does not support the Claimant’s case at all. Those whose circumstances were closest to the Claimant’s (Mr Nagi, Mr Wade and Employee 10) were all treated the same during the period with which we are concerned and not put forward for promotion by Mr Niforas, despite the differences in age, sex and race. We have also not found anything, standing back and looking at all the complaints and all the evidence in the round, that would lead us to conclude that Mr Niforas’s treatment of the Claimant was influenced in any respect by his age, sex or race. All the direct discrimination claims relating to promotion therefore fail.

[329]We further find that for the years in which the Claimant relies on one or more of his Protected Acts, either as a victimisation claim under s 27 EA 2010, or as a detriment under s 47B ERA 1996, the Protected Acts had no influence whatsoever on Mr Niforas’ decision-making as he was not aware of any of them, and in any event Mr Niforas’ failure to put the Claimant forward for promotion is wholly explained by the lawful reasons we have identified above. (As explained above at paragraph 307, we include in our reasoning here all the alleged Protected Acts, regardless of whether we have in fact found the communications in question to meet the statutory definitions in the various statutory provisions on which the Claimant relies.)

[330]Finally, we should add that the Claimant in fact withdrew the claim in relation to the 2015 promotion decision in the course of oral evidence, but then sought to reverse that decision in closing submissions. We have therefore above considered the facts of what happened in 2015 in order to decide whether it would be fair to let the Claimant ‘withdraw his withdrawal’ in that way, but as we cannot see that the Claimant has any ground for legitimate complaint in respect of not being promoted in 2015, just one year after his 2014 promotion, we consider that he was right to withdraw his claim in respect of this year and it would have failed in any event for the reasons we have given. (2) Equipment requests (direct race discrimination)

[331]Our findings of fact on this issue begin at paragraph Error! Reference source not found. above and must be read together with these conclusions. - 98 -

[332]The Claimant identified a large number of people as comparators for his equipment requests claim, but nearly all of them concerned requests that had been made by employees managed by people other than Mr Niforas. We do not consider that those examples assist us at all as on this sort of issue what matters is what Mr Niforas’ usual practice was when dealing with equipment requests. Of all the examples we have of the handling of other equipment requests, it is only those relating to Employee 10, Mr Nagi and Mr Brachi that actually required Mr Niforas’ approval. In Mr Brachi’s case, his first request was ignored by Mr Niforas in exactly the same way as the Claimant’s. It was only when Mr Brachi submitted a second request and chased Mr Niforas that Mr Niforas approved his request. Save for the very last request on 23/24 January 2020 (which we deal with below), the Claimant did not chase or speak to Mr Niforas about his requests at all. He was not therefore treated less favourably than Mr Brachi in materially similar circumstances because the fact that the Claimant did not chase or repeat his request was, we conclude, the only reason for the difference in treatment.

[333]As for Mr Nagi’s requests, the first one was clearly a different situation as from the timing it is clear that Mr Niforas was trying to secure equipment for Mr Nagi as a new joiner. We infer that there would therefore have been discussions between them about the equipment and that Mr Niforas’ focus would have been different as Mr Nagi was just starting.

[334]As to Mr Nagi’s second request (for a headset) and Employee 10’s request, on the face of the documents before us, they were approved by Mr Niforas at first request and without any documentary evidence that he was chased. However, the evidence we have on Mr Niforas’ handling of these requests is extremely limited. Mr Niforas did not deal with them in his witness statement and they were barely touched on in cross-examination (the Employee 10 request was not dealt with at all; the Mr Nagi request was only dealt with because the judge asked the Claimant about it as her original reading of the document had been that Mr Nagi’s request was refused – which it was, but not by Mr Niforas). These were both historic matters (occurring, respectively, nearly four and six years ago) and matters that Mr Niforas does not recollect (and reasonably so given their minor nature). Given these factors, and our finding that Mr Niforas’ working practice was such that he was likely to ignore an automated request unless chased about it, we are not prepared to assume, as the Claimant effectively invites us to do, that Mr Nagi’s and Employee 10’s requests were made in materially similar circumstances to the Claimant’s, i.e. that they were made as the Claimant made his requests, solely on the automated system and without any other communication with Mr Niforas. On the balance of probabilities, we consider that unlikely. In other words, the Claimant has not proved the necessary facts to show that he was less favourably treated than someone of a different race in materially similar circumstances.

[335]As to the Claimant’s last request for a desktop install of 20 January 2020, this one the Claimant did chase on 23/24 January 2020 as we have noted in our findings of fact. Mr Niforas still did not approve that request, but we have found as a fact that Mr Niforas’ non-response to the Claimant’s request in - 99 - January 2020 is explained by a combination of his general practice of ignoring automated emails, and the fact that the Claimant’s oral and written ‘chasing’ of the request was done in the context of conversations and emails dealing with other matters in respect of which the Claimant had become very agitated and in respect of which Mr Niforas’ understood himself to be the subject of a complaint by the Claimant that Ms Owens was dealing with. We infer that Mr Niforas was at this point finding dealing with the Claimant difficult and decided to wait for guidance on all issues from Ms Owens. The Claimant then went on long-term sickness absence and the Covid-19 pandemic began and so no action was taken until Mr Cullen brought it to his attention in April 2020. We find that all these matters explain Mr Niforas’ failure to approve this request in January/February 2020. When Mr Niforas was contacted about the request in April 2020 by Mr Cullen, he responded promptly and immediately approved a revised request submitted by Mr Cullen on the Claimant’s behalf for the Claimant to have a wyse terminal as the Respondent was not issuing new desktops by that point. In the circumstances, we do not find that the one occasion when the Claimant did chase an equipment request puts him in a materially similar position to Mr Brachi or Mr Nagi or Employee 10. All of the factors that we have just mentioned are material differences between their situations.

[336]Although we therefore conclude that the Claimant has not shown that he was less favourably treated than any actual comparator, we have nonetheless considered a hypothetical comparator, and done so by considering whether, in the light of all the evidence we have heard, the Claimant has adduced sufficient evidence from which we could conclude, in the absence of another explanation, that the treatment he received from Mr Niforas in relation to equipment requests was materially influenced by the Claimant’s race. We find that there is not such evidence. There are other reasons why the Claimant’s requests were not approved by Mr Niforas on each occasion, as we have found, and we do not consider that we can infer from the fact that there were a lot of equipment requests by the Claimant that Mr Niforas ignored over the years that his race had something to do with it. Although as a matter of good practice, Mr Niforas ought to have been more efficient at dealing with equipment requests, given the way the automated system worked, we do not consider that his failure to respond to the Claimant’s requests was so unreasonable that we should draw an inference of discrimination on that basis alone. Indeed, Mr Niforas’ failures to respond to the Claimant, in the absence of chasing by the Claimant, are understandable. Even if we had accepted that the Claimant had established he had been less favourably treated than a comparator in materially similar circumstances, his case would still have been one founded on a mere difference in treatment and difference in race, without more. In the circumstances, we find that the way the Claimant’s equipment requests were handled is wholly explained by Mr Niforas’ working practices, the Claimant’s peculiar failure to chase or speak to Mr Niforas about equipment requests and/or other particular circumstances relating to each request as we have set out. Racial considerations played no part. - 100 - (3) Failure to offer the Claimant voluntary redundancy between 21 May 2019 and 31 August 2019 (indirect race/sex discrimination)

[337]Our findings of fact in relation to this issue are at paragraph 136 above. This claim is misconceived. The Claimant’s case is that in not offering voluntary redundancy to employees at his level the Respondent indirectly discriminated against him on grounds of race and/or sex. However, even if we accept that the Respondent’s policy decision to offer voluntary redundancy only to Managing Directors and Directors amounted to a provision, criterion or practice (PCP) for the purposes of s 19 of the EA 2010:a. The Claimant did not want to take voluntary redundancy and so was not himself disadvantaged by the PCP;

b. The Claimant has not shown that the application of the PCP put or would have put other men or black people at disadvantage in comparison to people who do not share the Claimant’s protected characteristic. We do not know what proportions of employees at the Claimant’s grade are male or black. We know that women and black employees are under-represented at Managing Director/Director level, but we have no information about the make-up of the allegedly disadvantaged group; and,

c. In any event, the Respondent was plainly justified in only offering voluntary redundancy to the group of employees that it had identified it wished to reduce and who were thus at risk of compulsory redundancy. (4) Failure to carry out a health and safety risk assessment for over 8 months between April 2019 and 14 January 2020; recommendations never completed prior to 15 July 2020 and the Respondent informing the Claimant that he would be required to return to work on a phased basis from 23 March 2020 at a time when the Claimant was awaiting a response to his letter of 9 March 2020 and asking for adjustment to workstation and changes to duties advised by the Claimant's doctor, followed up on 19 June and 4 July 2020 (direct race discrimination/health and safety detriments)

[338]Our findings of fact in relation to this issue are at paragraphs 124-133 and need to be read together with these conclusions. Our conclusions in relation to the preliminary ingredients of a health and safety detriments claim at paragraphs 315-324 must also be read together with this section.

[339]We deal first with Ms Owen’s failure to arrange a workstation assessment for the Claimant between April 2019 and January 2020. This was a very unfortunate delay that should not have happened. There is no actual comparator for this claim. We cannot, however, infer that a hypothetical comparator would have been treated any differently or that Ms Owen’s handling of the matter was in any way influenced by the Claimant’s race. This is because when first contacted by the Claimant, she did act promptly to arrange for a workstation assessment to be carried out on 13 May 2019. Whatever the reason why that did not take place as arranged, it was clearly - 101 - not Ms Owen’s fault. Thereafter, we find as a fact that the reasons why Ms Owen did not arrange an assessment were, first, because after stating in her email of 24 June 2019 that she would arrange one, she forgot. Secondly, after that the Claimant’s sole attempt to chase her was in his confusing email of 18 October 2019 and we accept that she genuinely missed that part of his email. Thirdly, when the Claimant did communicate with her clearly in his email of 24 January 2020, she took action immediately and arranged the assessment. We find Ms Owen’s actions are wholly explained by the factors we have mentioned and the Claimant’s race played no part whatsoever in her handling of his request for a workstation assessment.

[340]We further find that Ms Owen’s failure (successfully) to arrange the workstation assessment during this period had nothing to do with the matters that the Claimant relies on as him bringing health and safety failings to his employer’s attention for the purposes of his s 44 ERA 1996 claim. On the contrary, it was because he made the communications that he relies on for these claims that Ms Owen took action to arrange the workstation assessment. His requests/allegations were not the cause of her failing to arrange the workstation assessment. The opposite is true.

[341]Once the assessment had been carried out, Ms Owen was not responsible for what happened thereafter. Mr Niforas’ role in what happened next we have already dealt with above in relation to equipment requests generally. It was not race discrimination. The Claimant’s claim would have to be that thereafter it was Mr Zemaitis who was directly discriminating against him because of race in failing to secure the equipment recommended by Roodlane. However, that has not actually been the Claimant’s case in these proceedings. He does not suggest that Mr Zemaitis was discriminating against him and rightly so because there would be no basis for such a suggestion. Mr Zemaitis has (understandably, given the lack of allegation against him) not been a witness in these proceedings, but his part in the process is apparent from the emails that we have seen. He tried to source what was requested, but the blue-light screens were not available. We do not know what happened regarding the headset, but the Claimant did not identify this as one of the specific outstanding matters in his 9 March 2020 letter and what happened about that has not been explored in these proceedings. Mr Zemaitis and Mr Niforas were not aware of the communications that the Claimant relies on for the purposes of his s 44 detriments claim, so that claim too fails so far as their part in the process is concerned.

[342]That leaves what happened in the period while the Claimant was away from work after 23 March 2020 and until he was dismissed on 15 July 2020. Our findings of fact regarding this period are at paragraphs 176-238 above. We deal with this in more detail when considering the Claimant’s dismissal below. For the purposes of this claim concerning failure to complete the workstation assessment and recommendations, it suffices to say that we are satisfied that the Claimant was not directly discriminated against because of his race, or subjected to detriments for having raised health and safety issues. The reason why adjustments were not made to his office equipment during this period was because he was not working in the office, or expected to work in - 102 - the office and from 18 March 2020 until 23 June 2020 the office was closed with only a handful of employees with exceptional reasons to work in the office being in the office. Mr Niforas, Mr Cullen and Mr Zemaitis had between them made arrangements for the Claimant to have such screens as they could obtain and a new wyse terminal as and when he returned to work. In fact, the Claimant never returned to work because he was dismissed for unauthorised absence for reasons unconnected with his race or his raising of health and safety issues as we conclude below. (5) Failure to award the Claimant a pay rise in the annual pay rise occurring in 2019 and 2020 (victimisation)

[343]Our findings in relation to pay are in the section beginning at paragraph 84 above. Although the Claimant’s general complaints and evidence in relation to pay have been wide-ranging, there are actually only two legal claims in relation to pay that we have to consider, and that is whether the Claimant was victimised within s 27 EA 2010 in not being awarded a pay rise in 2019 or 2020. The timing of the decisions in relation to pay rises is such that these victimisation claims must rely on the Claimant’s alleged Protected Act of 3 April 2019, but we have concluded that this was not a Protected Act (see above paragraph 308). The letter of 9 March 2020, the second Protected Act relied on by the Claimant was not received by the Respondent until 19 June 2020, by which time pay decisions had not only been taken but also communicated to employees. These victimisation claims do not for these reasons get off the ground. However, lest we are wrong that the 3 April 2019 letter did not constitute a Protected Act, we have also considered whether it materially influenced Mr Syson’s decision (in which Mr Niforas and Ms Owen played a small part) not to award the Claimant a pay rise either in 2019 or 2020. We find it did not. Only Ms Owen was aware of the content of the 3 April 2019 letter, but in any event we find as a fact that pay decisions in relation to the Claimant in 2019 and 2020 were not materially influenced by the fact that he had written the 3 April 2019 letter (or even that he had subsequently raised a grievance on 6 June 2019). We accepted Mr Syson’s evidence as to why there was no case for the Claimant to receive a pay rise. Most employees did not and the Claimant was not a deserving case. He was better paid than most of his peers, there was no market case for increasing his pay, he had not been promoted and he had not distinguished himself in any positive respect in terms of his performance or contribution to the Respondent’s business. By the end of 2019 he was refusing to participate in the performance management process. (6) Harassment in January 2020 (race/sex/age)

[344]There were five allegations of harassment in January 2020. We take each in turn:- - 103 - a. On 7 January 2020, Filippos Niforas verbally harassing the Claimant by speaking to him in an aggressive derogatory manner when receiving too many automated emails

[345]Our findings of fact are at paragraphs 160-161 above. While we accept that Mr Niforas’s conduct on this occasion was ‘unwanted’ so far as the Claimant was concerned, we find as a fact that Mr Niforas’ purpose was not to harass the Claimant, and nor do we accept that the Claimant at the time found the conduct reached the threshold for harassment under s 26. If he had done, we consider that there would have been some reflection of his claimed feelings either in his communication to Employee 10 immediately after the incident or in his 24 January email. In any event, we do not consider that it would have been reasonable for the Claimant to regard it as harassment in the circumstances as we have found them to be, which include a reasonable cause for Mr Niforas’ irritation (an increase in automated emails) and nothing particularly objectionable about how Mr Niforas reacted other than the Claimant’s perception that it was ‘aggressive’. Other than an assertion that Mr Niforas does not speak to other people like that, which is not supported by any other evidence, and in any event amounts only to a claim of a difference in treatment and a difference in protected characteristic, without more, the Claimant has adduced no evidence that Mr Niforas’ conduct on this occasion related to age, sex or race. b. On 7 January 2020, Filippos Niforas denying the Claimant any promotion, pay, bonus, or increased compensation

[346]There was no factual basis for this claim: see paragraph 162. c. On 17 January 2020, David Boston, Rob Hammond and Joanne Kelliher bullying the Claimant regarding David Boston not receiving his data

[347]Our findings of fact in relation to this claim are at paragraphs 163-165. As noted there, although the Claimant appeared at the time to have regarded Mr Boston and Mr Hammond as equal wrong-doers with Ms Kelliher, after hearing that Ms Kelliher was not being called to give oral evidence, he dropped his allegations against Mr Boston and Mr Hammond and focused on Ms Kelliher. Regarding the evidence against her, we accept that her conduct towards the Claimant was “unwanted” and that he subjectively believed it met the threshold for harassment, but we do not find that it was reasonable for the Claimant to think that as for the reasons set out in our findings of fact we consider that the Claimant here again misinterpreted another employee’s frustration about a work situation as personal to him. We further find that there is no evidence at all to show that Ms Kelliher’s conduct had anything to do with the Claimant’s race (or his sex or age for that matter). Indeed, he accepted that this was not her usual way of speaking to him. - 104 - d. On 23 January 2020, Filippos Niforas threatening the Claimant for not signing dual hatting arrangements

[348]Our findings of fact are at paragraph 165. We accept that the Claimant regarded Mr Niforas raising the dual-hatting with him was ‘unwanted conduct’, and that he subjectively regarded this as meeting the harassment threshold, but we do not find that it was reasonable for him to do so. The Claimant’s refusal to dual-hat had been long tolerated by the Respondent, although it evidently (and reasonably) created a difficulty within the team as it meant that the Claimant was not doing work that his team members were doing. The terms in which Mr Niforas raised the issue with the Claimant on 23 January 2020 were moderate and reasonable, and it was the Claimant’s reaction that was unreasonable. There is also nothing at all to suggest that Mr Niforas raising this with the Claimant had anything to do with race, sex or age. It was solely because the Claimant was the only person in the team who had refused to sign the dual-hatting arrangements. e. On 29 January 2020 Karen Owen discussing confidential matters others

[349]This allegation was withdrawn at the hearing. (7) Ignored advice from the Claimant's Doctor in relation to a phased return and/or workplace to make adjustment to duties and workstation in March 2020 and June 2020 (direct race discrimination)

[350]This claim is without merit. The Claimant’s 9 March 2020 fit note was not received by the Respondent until 19 June 2020. In any event, all it says is that unspecified adjustments were required to duties and workstation. There was no actual substantive advice that could be followed at all. Further, so far as the Respondent was concerned (specifically Ms Owen as the only person to whom this advice was sent), the advice could only reasonably be understood as a reference to the workstation assessment that had just been carried out, the implementing of recommendations from which Ms Owen reasonably believed was being dealt with by Mr Zemaitis. In any event, what had or had not been recommended for the Claimant’s office workstation was essentially academic as he was supposed to be working from home, but was refusing to and did not (successfully) communicate with the Respondent at all at any point between 23 March 2020 and 19 June 2020. There is no basis here for a race discrimination claim. The Claimant has not shown that he has been less favourably treated than any actual comparator and it is impossible to imagine a hypothetical comparator of a different race being treated any differently. What happens is wholly explained by the factual sequence of events that we have set out in our findings of fact at paragraphs 176-238 above.

[351]So far as the recommended phased return is concerned, this is also unmeritorious. The Claimant accuses the Respondent of ignoring his doctor’s advice that he should have a two-month phased return to work beginning on 23 March 2020, but the Claimant himself failed to return to work and - 105 - deliberately withheld the doctor’s advice from the Respondent and did not provide it to the Respondent until the two-month period in question was well past on 19 June 2020. There was therefore no ‘failure’ to follow the doctor’s advice. By the time the advice was brought to the Respondent’s attention, it was irrelevant as the Claimant had been absent from work without authorisation for three months, for which he was reasonably subject to disciplinary proceedings, and was not claiming to be suffering from any medical condition which could make a phased return to work necessary on medical grounds in the event that he was not dismissed. Again, the Claimant has not shown that he has been less favourably treated than any actual comparator and it is impossible to imagine a hypothetical comparator of a different race being treated any differently. (8) Failure to provide severance package on dismissal 15 July 2020 (direct race discrimination, victimisation, PID detriment)

[352]This is equally unmeritorious. Our findings of fact on the issue are at paragraphs 239-240. The Claimant was dismissed for gross misconduct. His named comparators were not. That is a very significant difference between his case and theirs. The Respondent does not, as a matter of policy, and consistent with FCA guidance, reward gross misconduct with severance packages. That is eminently reasonable. Another material difference between the Claimant’s case and that of his named comparators is that they instructed lawyers and negotiated settlements under which the Respondent paid a sum so as to avoid legal proceedings. While it is possible that even without lawyer involvement if the Claimant had advanced a strong enough legal case to the Respondent, he might have secured a settlement offer (and the Respondent would then have had to pay for him to instruct lawyers for advice to make it a binding compromise agreement under the ERA 1996/EA 2010), the fact is that he did not. We find that the failure to pay the Claimant a severance payment is wholly explained by the fact that he was dismissed for gross misconduct and did not advance (with or without lawyers) a case that would have merited the Respondent reaching a compromise agreement with him. The Claimant’s race and Protected Acts had nothing to do with it. (9) Unfair dismissal (victimisation/automatic unfair dismissal under ss 100/103A/104)

[353]Our findings of fact regarding the dismissal and what preceded it are at paragraphs 176-238 above. These conclusions must be read together with those findings.

[354]We must first consider what the reason was for the Claimant’s dismissal. We are satisfied that it was the Claimant’s conduct in being absent from work without explanation or authorisation from 23 March 2020 onwards. The Claimant was from 23 March 2020 fit to work according to his GP’s advice. Even once he was back in contact from 19 June 2020, it was not the Claimant’s position that he was or had been unwell in the intervening period. - 106 - He had been asked by Mr Niforas by text messages that he had received to work from home, and to confirm that his remote access was working to allow him to do that. Those were in our judgment reasonable management requests, but the Claimant ignored them, maintaining that he would only return to work when he was allowed to return to the office. Moreover, the Claimant for over two further months ignored Ms Owen’s messages and refused to comply with her (also reasonable) management instructions to contact her. He continued to ignore her communications even after she had arranged a police visit to check he was safe. We found as a fact at paragraph 192 that there was no medical advice that the Claimant should not work from home, it was just that the Claimant did not wish to and considered that the Respondent could not require him to. The Respondent’s written policies (above, paragraph 55 and following) are entirely standard, and clear, in requiring sick certificates to be submitted for all periods of sick absence, and in providing that unauthorised absence will be treated as misconduct or, for serious cases, gross misconduct.

[355]Mr Williams was the person who took the decision to dismiss and, having considered his evidence, we are satisfied that his sole reason for dismissing the Claimant was his conduct in being absent without authorisation for a lengthy period. Mr Williams was not aware of any of the Claimant’s Protected Acts prior to his letter of 19 June 2020, but in any event we are satisfied that the Claimant’s Protected Acts played no part (let alone the sole or principal part) in Mr Williams’ decision to dismiss.

[356]We have also considered Ms Owen’s role in relation to the dismissal. Although it was not her decision, she was in a position to influence Mr Williams, and she knew about all the Claimant’s Protected Acts, but we are also satisfied that they played no part in her thinking in relation to the disciplinary and dismissal process. If Ms Owen had been minded, consciously or unconsciously, to retaliate against the Claimant for his Protected Acts, we consider that she would have pushed the Respondent to disciplinary proceedings at a much earlier stage. She could quite reasonably have done so in response to the Claimant’s refusal to engage in the performance management process, and, in relation to the unauthorised absence, she could have pushed for a disciplinary process as early as April 2020 after the Claimant had ceased responding to attempts at communication. The fact that she did not push the Respondent to earlier action is strong evidence against the Claimant’s case.

[357]For these reasons therefore, the Claimant’s claims of victimisation in relation to his dismissal, and claims of automatic unfair dismissal under ss 100, 103A ERA 1996 fail, as well as that under s 104A insofar as it relies on the communications dealt with at paragraph 319 above. We have further already found above at paragraphs 320-324 that the Claimant was not absent from work for reasons which brought him within the scope of the protection against dismissal in s 104 ERA 1996.

[358]The only remaining matter we have to consider in relation to the Claimant’s dismissal is whether it was ‘ordinarily’ fair having regard to s 98(4) ERA 1996. - 107 - We have dealt with a number of the Claimant’s arguments about fairness in the course of our findings of fact above and we do not revisit all of those points here. In overview, however, we are satisfied that the Claimant’s dismissal was fair in all the circumstances for the following reasons:-a. The Claimant’s absence between 23 March 2020 and his dismissal on 15 July 2020 was unauthorised and unexplained. It was not covered by a doctor’s note. The Claimant has argued, with reference to guidance on the ACAS website about fit notes and reasonable adjustments, that because the Respondent had not made the reasonable adjustments he says his doctor recommended that he was ‘deemed’ still to be on authorised sick leave. That is not correct. The ACAS advice refers to the option on medical certificates for a doctor to state that someone ‘may be fit for work taking account of the following advice’ and states that the position is that if that advice is not followed by the employer, the certificate is to be treated as being a certificate that the employee is not fit for work. None of the Claimant’s medical certificates take this form and, in any event, they were all time limited, with the last one expiring on 23 March 2020. The Claimant has never obtained a medical certificate covering his absence beyond that point. Further, and in any event, his doctor never gave any specific advice about any reasonable adjustments. The ‘advice’ in the 9 March 2020 fit note is ‘contentless’.

b. The Respondent’s policies were clear that sickness absence certificates were required to cover the whole period of absence (and in any event that is obvious), and that unauthorised absence and/or serious breaches of the Respondent’s policies could be treated as gross misconduct.

c. It was well within the range of reasonable responses for the Respondent to treat unauthorised absence for three months (a very long time indeed) as serious enough to be classified as gross misconduct meriting summary dismissal.

d. It was irrelevant what adjustments had or had not been made to the Claimant’s workstation in the office because he had been asked to work from home for the whole of the period in question.

e. Despite being asked, the Claimant never told the Respondent that he could not work from home, or provided any legitimate reason why he could not work from home. He just maintained he would only work in the office. This was not reasonable: see further paragraph 192 above.

f. It was not relevant that the Claimant had not exhausted his sick pay and not been told about the Respondent’s PHI as he was not sick.

g. Even if the Respondent’s written policy suggests there will normally be an informal stage before disciplinary or a discussion with a line - 108 - manager, the Respondent is free to depart from its policies where it is reasonable to do so. Here, it was plainly reasonable. The Claimant had been given multiple ‘informal’ opportunities to contact Ms Owen since the end of March 2020 but had failed to do so. There was no need for the Claimant’s absence to be discussed with Mr Niforas again after March 2020 and prior to dismissal. There was nothing that Mr Niforas could have told Ms Owen or Mr Williams about the situation as he had not been dealing with it, and there was no reason for him to deal with a long-term absence issue like this if HR was handling it, as they were.

h. It was within the range of reasonable responses for the Respondent to continue with the disciplinary process rather than giving the Claimant the opportunity to return to work in the office once lockdown restrictions began to ease from 23 June 2020. The serious misconduct had already occurred by that point, and the Respondent acted reasonably in continuing to address it in the way that it did.

i. A fair procedure was followed. Although very short notice was given of the first disciplinary hearing on 19 June 2020, the amount of notice was in accordance with the policy and the Claimant did in fact receive it and draft a long letter in response to the allegations in the time he was given. In any event, that first disciplinary hearing was postponed and more than ample time was given before the second hearing, which the Claimant chose not to attend. The fact that more notice was given for the second hearing than was provided for in the Respondent’s policy was to the Claimant’s advantage not disadvantage and does not render the process unfair.

j. The Claimant was offered the opportunity to attend OH before the Respondent commenced a disciplinary procedure. He failed to respond to that offer by contacting Ms Owen as required by the letter of 11 June 2020. Although very short notice of that OH appointment was given, we accept Ms Owen’s evidence that if the Claimant had contacted her and asked for it to be rearranged, she would have done so. However, the Claimant’s position in his subsequent correspondence (as it was reasonably understood by the Respondent) was that he would not attend OH. He had reasons for that, specifically that he considered the Respondent should do everything he had asked first, but in our judgment it was within the range of reasonable responses for the Respondent to take the Claimant’s position as being an unreasonable failure to attend an OH appointment. After all, there was no ‘downside’ for the Claimant in attending an OH appointment, and no good reason why he could not have done so, whatever his view on the Respondent’s failings up to that point. Indeed, most employees would have seen the offer of an OH appointment as a step that could help them.

k. The Claimant did not ask for an in-person disciplinary hearing and there was no disadvantage to him of having a virtual hearing. Indeed, - 109 - if his Covid concerns were genuine, we would have thought he would have preferred that.

l. The Respondent acted reasonably in proceeding with the disciplinary notwithstanding the Claimant raising grievances. The Respondent’s written policy permits it to continue with a disciplinary procedure in those circumstances. Insofar as the Claimant raised points in his grievances that were relevant to the decision to dismiss, Mr Williams properly took them into account and explained in the dismissal letter why (the main points) the Claimant raised did not mean that dismissal was inappropriate.

m. Although the Claimant’s grievance, which began with his letter of 6 June 2019, was not in the end dealt with at any point, that did not take the dismissal decision outside the range of reasonable responses. The reason why the Claimant’s grievance had not been dealt with prior to him going absent from work was because he had refused to agree to it being investigated as Ms Owen proposed. In any event, even if the failure to investigate the grievance had been Ms Owen’s fault, it would not justify or excuse the Claimant going absent in the way that he did and failing to respond to the Respondent’s communications for three months. It was well within the range of reasonable responses for the Respondent to proceed to disciplinary and dismissal notwithstanding the outstanding grievances in the circumstances of this case.

n. The Claimant was offered a right of appeal, and the appeal was in our judgment also fair in all the circumstances for reasons we deal with further below. The delay in holding the appeal was (bar one month of delay by Mr Conway in September 2020) wholly attributable either to the Claimant’s appeal letter getting lost or the Claimant failing to respond to correspondence. In any event, even if the appeal had not been conducted fairly, we consider that the Claimant’s dismissal was so conspicuously fair in all the circumstances that any error at the appeal stage would have made no difference. (10) Wrongful dismissal

[359]The Claimant was absent from work for three months and failed to respond to multiple reasonable management instructions to work from home, or identify if he could not, or to communicate with his employer. The absence was not authorised by any sick note and unjustified by any reasonable excuse. It amounted to gross misconduct under the Respondent’s written policies and in our judgment constituted a serious and repudiatory breach of his contract of employment. It follows that the Respondent was entitled to dismiss him summarily without notice. He was not wrongfully dismissed. - 110 - (11) Delay in carrying out the appeal (victimisation)

[360]Our findings of fact on this issue are in the section beginning at paragraph 238. There was a very long delay between July 2020 and March 2021 in holding the Claimant’s appeal hearing. However, the cause of the delay from July to 25 September 2020 was the Claimant’s appeal letter getting lost in the post; the cause of the delay from 27 October 2020 to March 2021 was the Claimant’s failure to respond to correspondence or attend any arranged appeal hearing. The only period of delay for which Mr Conway was responsible was between 25 September 2020 and 27 October 2020 which he says (and we accept) was owing to pressure of work and difficulties understanding the Claimant’s appeal letter. We infer there was also some hesitation on his behalf because he was doubtful as to whether the Claimant had really written the letter on 25 July 2020 and thought he had possibly deliberately delayed in raising his appeal. In any event, we are satisfied that the Claimant’s Protected Acts had nothing to do with the delay because we accept Mr Conway’s evidence that he was unaware of any of them. We would add that even if Mr Conway was aware of the Claimant’s Protected Acts, it would be surprising if they had had a material influence on his delay in writing to the Claimant given that they are such small parts of the factual matrix in this case, which is really dominated by the length of the Claimant’s unexplained and unauthorised absence, his handling of his sick notes, inaccurate assertions about his doctor’s advice, his peculiar resistance to homeworking and, finally, the unexplained two-month delay in his appeal letter turning up. (12) Unlawful deduction of wages – Holiday pay

[361]Our findings of fact are at paragraph 256. For the reasons set out there, the Claimant is not owed any holiday pay. Time limits

[362]We address time limits very briefly because this is already a very lengthy judgment and, since the Claimant’s claims have all failed, it is now academic whether they were brought in time or not.

[363]The Claimant’s unfair dismissal claim was brought in time. The primary time limit for all the Claimant’s discrimination and detriments claims was three months from the date of the act complained of, or where the acts formed part of a ‘continuing act’, three months from the last act in the series. Taking account of the extension permitted for the ACAS Early Conciliation period, the parties are agreed that everything that happened prior to 2 June 2020 was therefore in principle brought outwith the primary limitation period, i.e. everything other than the claims about:a. Dismissal;

b. Severance pay; - 111 -

c. Appeal;

d. Ignoring advice from the Claimant’s doctor about workplace adjustment and duties and phased return to work; and,

e. Failure to implement the recommendations from the workstation assessment in January 2020 or at all prior to dismissal on 15 July 2020.

[364]Given that the decision to dismiss was one taken in response to the Claimant’s unauthorised and unjustified absence, unrelated in our judgment to anything that had happened previously, we would have concluded that there was no continuing act in respect of prior events that linked to the (in time) dismissal or appeal. That is especially so given that the prime decisionmakers in relation to the dismissal was Mr Williams, and in relation to the conduct of the appeal it was Mr Conway, neither of whom had had any prior involvement with the Claimant. Ms Owen’s involvement potentially provided a link back to earlier complaints, but only respect of her own conduct and, given the very different nature of the earlier complaints about her (i.e. workstation assessment vs handling of the disciplinary process) and the absence of any claim about her handling of the grievance (which was the only ‘ongoing’ matter covering the whole period), we would have concluded that these were not all part of one continuing act. There was no possible link back from the Claimant’s dismissal or appeal to the Claimant’s complaints about the actions of other individuals who had nothing to do with the Claimant after he left the office on 6 February 2020 or, in Mr Niforas’s case, after 23 March 2020. A further reason why we would have found there was no continuing act was because only allegations of direct discrimination that had been brought in time were the direct race discrimination claim in respect of the lack of severance package (which was obviously hopeless), the failure to implement adjustments following the workplace assessment (that was the responsibility of Mr Zemaitis who has no link to any other allegation and in respect of which the Claimant made no personal allegation of race discrimination) and the failure to follow the doctor’s advice (but that was not sent to the Respondent until 19 June 2020 and what happened with that is all tied up with the dismissal decision and does not link back to earlier events for the reasons we have already given).

[365]For the detriments claims where time can only be extended if it was not reasonably practicable to bring the claim earlier, we would have concluded that time could not be extended because the Claimant in his grievance of 6 June 2019 had made clear that he knew of his right to bring a claim to the Employment Tribunal and the time limit for doing so, but did not do so despite there being no practical impediment to that and, in our judgment, no reasonable basis for not making a claim earlier. The fact that the Claimant wanted the Respondent to provide further disclosure does not excuse his not pursuing claims to the Tribunal.

[366]We also would have concluded that it was not just and equitable to extend time for the EA 2010 claims given the following factors: the historic nature of many of the allegations and the difficulties that created for the evidence (particularly regarding the equipment requests); the Claimant’s knowledge of - 112 - his legal rights from an early stage; his failure to allow the Respondent to progress his grievance; the lack of any alleged ‘something more’ to indicate that race, sex or age played any part in his treatment; the prejudice to the Respondent of responding to a historic claim of this nature and on such a scale, which in our judgment outweighed the prejudice to the Claimant of being permitted to proceed on all the historic allegations, particularly given that he had an in-time claim in respect of his dismissal which would, if he had succeeded, have represented the bulk of any financial compensation he could have hoped to obtain in these proceedings.

[367]For these reasons, we conclude that all of the Claimant’s complaints relating to matters that occurred prior to 2 June 2020 were out of time and the Tribunal did not have jurisdiction to hear them. Overall conclusion

[368]The unanimous judgment of the Tribunal is:(1) The Claimant’s claim of unfair dismissal under Part X ERA 1996 (including automatic unfair dismissal under ss 100, 103A and 104 ERA 1996) is not well-founded and is dismissed.

(2) All claims relating to matters that occurred prior to 2 June 2020 were out of time and the Tribunal did not have jurisdiction to hear them, having regard to EA 2010, s 123, and ERA 1996, s 48(3).

(3) The Respondent has not contravened the EA 2010 by directly discriminating against the Claimant because of race, sex or age contrary to ss 13 and 39(2)(d) EA 2010. Those claims are dismissed.

(4) The Respondent has not contravened by the EA 2010 by harassing the Claimant for reasons related to race, sex or age contrary to ss 26 and 40 EA 2010. Those claims are dismissed.

(5) The Respondent has not contravened the EA 2010 by victimising the Claimant contrary to ss 27 and 39(4) EA 2010. Those claims are dismissed.

(6) The Claimant’s claim that he was subjected to detriments for making protected disclosures contrary to s 47B ERA 1996 is not well-founded and is dismissed.

(7) The Claimant’s claim that he was subjected to detriments for raising health and safety matters contrary to s 44 ERA 1996 is not wellfounded and is dismissed.

(8) The Claimant’s claim for wrongful dismissal is not well-founded and is dismissed.

(9) The Claimant’s claim for unlawful deduction from wages is not wellfounded and is dismissed.

[1]The claimant is ordered to pay 20% of the respondents’ costs of the claims, excluding any costs relating to equal pay matters which are yet to be determined, as have been incurred on or after 19 January 2022, subject to a detailed assessment by an Employment Judge on a standard basis.

[2]Deposits paid in respect of those claims in the sum of £800 shall be paid back to the respondent and the sum of £800 deducted from the sum ordered to be paid under paragraph 1.

[1]This hearing was listed to determine the respondent’s application for costs following the dismissal of all of the claimant’s claims, save for those in respect of equal pay which have not yet been determined. We received very full bundles and a Skeleton Argument from the respondent. The bundles included the claimant’s written response to the application. We heard oral submissions from both parties. We read and considered all the documents we were referred to in submissions, together with others which we considered relevant.

[2]At the outset of the hearing the claimant did not have a copy of the bundles with him. The respondent indicated that the bundles had been sent to the claimant by recorded delivery and were signed for. Proof of delivery was provided showing documents signed for on 8 November 2023 and 21 November 2023. The Tribunal was referred to correspondence date 18 November 2023, received by the respondents on 23 November 2023, indicating that the claimant could not use the bundles as they had been amended, had not been provided in the correct format and that there were documents missing. The claimant clarified that the bundles arrived broken, in that he could not turn the pages. The ‘amendments’ were in respect of the anonymisation of employees. As to the missing documents, he took the Tribunal to various letters in the bundle which listed documents he sought to rely on for the hearing, some of which were missing from previous bundles. He indicated that these documents contained material which showed unreasonable conduct by the respondents, for example delays in undergoing mediation. The respondent accepted that some pages had been missing, but that the full documents of relevance had now been included in the costs bundle. In respect of the delay to the start of mediation, this was because a List of Issues had not been agreed. The mediation nevertheless took place in 2021. The respondent confirms that a specific letter which the claimant says is missing dated 5 January 2023 was not in fact received. We have now received a copy of that letter in any event as it was appended to the letter of 18 November 2023. The claimant was told in the respondent’s response to the letter of 18 November 2023 that if there were documents he wanted to rely upon which were not in the bundle then he should bring copies to the hearing. The respondent was of the view that the claimant was attempting to derail the hearing, and referred to previous instances of the claimant having made similar allegations. The Tribunal notes that the claimant brought a small file for his own use at the hearing but did not bring any documents for the Tribunal. The Tribunal was asked to determine:(i) Whether the hearing should be delayed for the claimant to be given an unredacted bundle;

(ii) Whether the hearing should be delayed for all of the documents said to be missing to be located and added to the bundle.

[3]In relation to the first issue, the Tribunal considered it would be wholly disproportionate to delay this hearing for the provision of a ‘clean’ bundle. It is not understood why the claimant, on receipt of the bundles, could not simply put them into another set of files so he could read them more easily. Only one example was given of the redactions made, which simply replaced the name of a particular employee with a coded name, as used throughout the liability hearing. There is no reason why, for the purpose of determining a costs application, the Tribunal would need to know the name of anonymised employees. The claimant has had the code previously and knows who is being referred to, and the Tribunal cannot see why the claimant would need to have an unredacted bundle for the purpose of this hearing. The claimant was given copies of the bundles for use during the hearing, having refused to take them this morning, and was given time to review them.

[4]In relation to the second issue, the Tribunal noted that it had already been provided with a bundle running to well over 1,000 pages for a two day costs application. The respondent contends that all relevant documents have been included in full. Taking into account the overriding objective, we do not consider it proportionate or an efficient use of resources to delay the hearing any further. If there are still documents the claimant says is missing, he ought to have provided them having been told by the respondent it was open to him to do so. He has brought his own documents today and could have brought additional documents for the Tribunal rather than putting all the onus on the respondent to understand what is alleged be missing and to provide it. While it is important for the parties to be on an equal footing, the claimant would have the opportunity during the course of his submissions to relay to us what he says occurred procedurally in response to any specific points raised by the respondent. The primary question for us was not whether the respondent had acted unreasonably, but whether the claimant’s own conduct had been unreasonable or vexatious. Given how long ago the hearing was listed and the waste of judicial resources and costs which any further delay would entail, we did not consider it was proportionate or in the interests of justice to undergo an exercise of finding additional documents at this late stage.

The Law

[5]Rule 76(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides: “A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that-(a) a party… has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted,

(b) Any claim or response had no reasonable prospect of success…”

[6]In respect of unreasonable pursuit of the proceedings, Rule 39(5) provides: “If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order-(a) The paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and

(b) The deposit shall be paid to the other party … otherwise the deposit shall be refunded.

[7]Rule 78 provides: “(1) A costs order may-(a) Order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party;

(b) Order the paying party to pay the receiving party the whole or a specified parent of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles;…”

[8]Rule 84 provides: In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s … ability to pay.

[9]The Presidential Guidance on Case Management notes that each case will turn on its own facts. It could be unreasonable where a party has based the claim on something which is untrue. That is not the same as something they have simply failed to prove. Nor does it mean something they reasonably misunderstood.

[10]Whether conduct is unreasonable is a matter for the tribunal. Unreasonableness has its ordinary meaning and should not be taken by tribunals to be the equivalent of vexatious (Dyer v Secretary of State for Employment

UKEAT/183/83

). The test is an objective one and the threshold may be crossed simply because the claims had no reasonable prospect of success, even if the claimant did not realise it at the time (Radia v Jeffries International Ltd

[2020] IRLR 431

). The status of the claimant should be taken into account (AQ Ltd v Holden

[2012] IRLR 648

[11]Costs are compensatory, not punitive. Where costs are because a party has behaved unreasonably, costs should be no more than is proportionate to the loss caused to the receiving party by the unreasonable conduct (Ludwick v Southwark LBC

[2004] EWCA Civ 306

). The Tribunal should take into account the nature, gravity and effect of the paying party’s unreasonable conduct in deciding whether to make an order for costs (McPherson v BNP Paribas

[2004] EWCA Civ 569

). The Tribunal does not have to find a precise causal link between any relevant conduct and the costs claimed. Causation remains a relevant factor, however the tribunal should not lose sight of the totality of the relevant circumstances (Barnsley Metropolitan Borough Council v Yerrakalva

[2012] IRLR 78

[12]In relation to offers of settlement, the failure to beat an offer does not inevitably mean that there has been unreasonable conduct. However, it is a factor which the Tribunal may take into account. Where a party has obstinately pressed for some unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked for against that party if it persisted, the Tribunal could in appropriate circumstances take the view that the party had conducted proceedings unreasonably (Kopel v Safeway Stores Plc

[2003] IRLR 753

[13]In determining whether to take into account the paying party’s ability to pay, there is no absolute rule that the Tribunal should take into account ability to pay but it will be desirable in many cases to do so. An example of when it may be appropriate not to take ability to pay into account would be where a party has not attended the costs hearing or has given unsatisfactory evidence about means (Jilley v Birmingham & Solihull Mental Health Trust

UKEAT/0584/06

). Where evidence on means is unclear or unreliable that may also be a reason for not taking it into account (Shields Automotive Ltd v Greig

UKEATS/0024/10

[14]If a detailed assessment is ordered, this can be on a standard or indemnity basis. The Tribunal must properly consider the effect of the order on the paying party’s ability to pay, and indemnity costs should be rare (Harman v Queen Elizabeth Hospital Kings Lynn

[2013] All ER (D) 262

. The Tribunal may determine that the paying party should pay a specified percentage of the costs to be assessed or the costs related to a particular issue in the proceedings (Kuwait Oil Co v Al Tarkait

[2021] ICR 718

), but bearing in mind that issue based costs may be difficult to assess (FDA v Bhardwig

[2022] EAT 97

). It may also place a cap on the amount of costs which may be awarded (Jilley).

[15]The Civil Procedure Rules 1998 provides in respects of the factors to be taken into account when determine costs on a standard or indemnity basis: “(1) The court will have regard to all the circumstances in deciding whether costs were—(a) if it is assessing costs on the standard basis— (i) proportionately and reasonably incurred; or (ii) proportionate and reasonable in amount, or

(b) if it is assessing costs on the indemnity basis— (i) unreasonably incurred; or (ii) unreasonable in amount.”

[16]There is therefore a three stage test:(i) The Tribunal must first consider whether the threshold of no prospects of success and/or disruptive or unreasonable conduct has been met (those being the matters relied on the by respondent at this hearing), and in respect of which parts of the claim;

(ii) If so, then the Tribunal will consider whether to exercise its discretion to make a costs order, and may at this stage take into account the ability of the claimant to pay;

(iii) If it is decided to make a costs order, the Tribunal will go on to consider whether it is appropriate to summarily assess the costs in a sum up to £20,000 or to order a detailed assessment. At this stage the Tribunal may take into account the ability of the claimant to pay, and may also consider whether the costs order should specify a percentage of the overall costs to be paid, or to place a cap on the overall level of costs which may be awarded at a detailed assessment. It may also specify whether costs should be assessed on a standard or indemnity basis. Submissions

[17]The respondent started its submissions by saying that the respondent did not want to be in this position but had no choice but to pursue the costs application and did not necessarily even want the claimant’s money. It could see no other way to restrain the claimant’s behaviour. Although the written application referred to vexatious and abusive conduct, that was not in fact pursued, however it was contended that there were no reasonable prospects of success and the claimant had acted disruptively or otherwise unreasonably.

[18]The respondent’s written and oral submissions fairly reflected the legal tests to be applied. Detailed submissions were made in relation to each head of claim as regards the prospects of success and we were referred to the relevant parts of the liability judgment. We were also taken in detail through the chronology of the proceedings and the warnings given and alleged unreasonable conduct was flagged at each stage.

[19]The respondent contended that the claimant’s financial means should not be taken into account, having breached the Tribunal’s orders and been told what the consequences should be.

[20]The respondent sought a detailed assessment for all of its costs, on an indemnity basis. It was noted that the cost schedule did include some elements in relation to equal pay which needed to be removed.

[21]The claimant asked for a summary assessment of costs. He also went through the chronology. He says he was asked to provide information which he provided, then the respondent sought more, which he again provided. He was not incurring the costs. He says he was only doing what was asked of him, and it was unclear sometimes what was being asked of him. He contended that it was the respondent who was responsible for a delay in mediation occurring. Having brought the claim, he was faced with a position where if he streamlined the claim he was threatened with costs, and if he pursued the claim he was threatened with costs. He was scared. He was critical of the liability judgment, however he was informed we would not be revisiting the judgment. He strongly objected to being called dishonest by the respondent. When he got the deposit order, he felt strongly about those claims he selected to pursue. He was trying to get his claim heard. He did not understand the bench mark for the deposit order. His understanding was that after the strike out application, everything that was left was ok. He emphasised that he was a litigant in person, he did not understand elements of the process. He found process very distressing. He had low self-esteem and felt worthless. He sought support from friends and family. He tried to reach a conclusion. No reasonable prospects of success

[22]We have considered the submissions made by the respondent in respect of each type of claim which was considered at the liability hearing, all of which were comprehensively dismissed. We bear in mind that at this stage there is an objective test, such that threshold may be met even if the claimant genuinely believed that he had a reasonable case. We are are satisfied in respect of each category as set out in Ms Barsam’s submissions that the claims objectively had no reasonable prospects of success. This threshold is therefore met. Unreasonable pursuit of the claims

[23]It is a different question whether, as a result of the lack of prospects of succeeding in the claims, it was unreasonable for the claimant to pursue them. Bearing in mind the claimant was a litigant in person, we did not consider it was unreasonable to pursue the claims at the outset, given the claimant’s limited understanding of the law at that point. We reject the respondent’s submission that the judgment on liability infers that the claimant must have been dishonest in his evidence and therefore must have known that his claims lacked any prospects of success. The Tribunal was not invited to find that the claimant was dishonest and if the Tribunal had considered that the claimant had been dishonest it would have said so in clear terms.

[24]It is helpful to look at the chronology of events after that point. The first preliminary hearing in this matter was on 8 February 2021. That appears to have been a brief hearing which was relisted for 10 March 2021 before Employment Judge Adkin. It is not clear from the case management order how much was discussed at that second hearing in respect of the legal tests which would be applied. However, we note that Employment Judge Adkin observed in his order: “I have explained to the Claimant that it is his right to bring claims under a very large number of the Tribunal’s jurisdictions. I have also mentioned that this is likely to result in a large amount of Tribunal time and that the Respondent might seek to pursue him for legal costs if a large amount of time is taken up dealing with claims that are found to have no reasonable prospect of success or are unreasonably pursued, and in particular pursued after a deposit order is made…”

[25]By letter dated 23 April 2021 the respondent offered to pay £2,000 plus VAT towards the claimant obtaining legal advice in respect of legal advice.

[26]There was then a further preliminary hearing on 19 and 20 July 2021. At that hearing an individual respondent was added to the claim and an application for five further respondents to be added was refused. Two days were spent considering the list of issues, which was appended to the order and sets out clearly the legal tests which would be applied by the Tribunal in respect of each head of claim. We can infer from this exercise that at this point the claimant had been told what the law was. Again there was a specific mention of costs in the case management order of Employment Judge Adkin: “The Respondents have, not unexpectedly, put down a marker that they will apply for their legal costs in relation to claims which are misconceived or have no reasonable prospect of success.”

[27]A judicial mediation took place on 10 September 2021. The claimant noted that the mediation was delayed, and blamed the respondent for this. We accept what is said by the respondent, that the reason for the delay was that the claimant sought to add additional respondents, and it was necessary to resolve that before the respondents entered mediation. At mediation the respondent made an offer of £45,000 to settle the proceedings. The claimant’s offer to the respondent was to settle in the sum of £5 million.

[28]On 16 November 2021 offer £45,000 and no application for costs. At the same time a cost warning was given in respect of unreasonable conduct (dealt with below).

[29]There was then a four day hearing from 13 to 18 January 2022. At that hearing the claimant was permitted to amend the List of Issues. The disability discrimination claims were dismissed. Two claims in respect of unauthorised deductions from wages and part of the equal pay claim were struck out and deposit orders were made in respect of 34 allegations, 12 of which were in respect of equal pay which we are not concerned with today, and 22 in respect of the matters which are now the subject of the costs application. Deposits were paid in respect of 8 of those 22 items. The claimant also withdrew some claims.

[30]In his reasons for making the deposit orders, Employment Judge Adkin set out clearly that in paying the deposit he was running the risk of a future adverse costs order.

[31]On 19 April 2022 Employment Judge Adkin heard a costs application in respect of the respondent’s costs to 18 January 2022 said to arise from unreasonable conduct and pursuit of unmeritorious claims. In his judgment dated 7 June 2022 Employment Judge Adkin did find some unreasonable conduct, and ultimately made a costs award of £2,500. It is notable that this judgment sets out the law in relation to costs comprehensively, such that the claimant could have been in no doubt the type of application which might be made in the future should his claims fail.

[32]Just prior to that hearing on 30 March 2022 the respondent offered to withdraw its costs application on the basis of the claimant withdrawing his claims.

[33]On 7 December 2022 the respondent wrote to the claimant having reviewed his witness statement. Although it is stated in the letter his claims were considered to be completely unmeritorious an offer was made to settle the matter in the sum of £80,000.

[34]The final hearing took place over 15 days in January and February 2023, and as we have already discussed that resulted in the dismissal of all claims, save for the equal pay issues which are due to be the subject of a 5 day hearing in January 2024. It is noted that the claimant withdrew a number of his claims during the course of that hearing. Of particular note is that the claimant withdrew harassment claims in respect of two individuals who were due to give evidence, but maintained a similar claim in respect of a witness who could not give evidence.

[35]The Tribunal was referred in written submissions to five offers made by the respondent and one offer made by the claimant after the liability hearing which, on brief review, relate to the equal pay claims, save for an offer of £1,500 part of which was to take legal advice on the costs application. We were told orally at the hearing about a further offer made by the claimant last week. We infer that also related to settlement of the whole proceedings and settlement of the costs application. Save for the offer of costs in respect of legal advice for the costs application, it is not appropriate for these offers to have been put before the Tribunal today and they are disregarded and were not discussed or taken into account in any way.

[36]We have considered this chronology in some detail in reaching our conclusions as to whether the claims were unreasonably pursued.

[37]We find that it was not unreasonable to continue in March 2021. Although the claimant was warned about breadth of claims, the List of Issues was still being finalised at that point. The offer of legal costs in April 2021 was in respect of the completion of the List of Issues and did not relate to withdrawal of the claims. It is noted this was considered by Employment Judge Adkin in the costs judgment dated 7 June 2022 and it was found not have been unreasonable for the claimant not to take up this opportunity.

[38]We are narrowly persuaded that it was not unreasonable to continue with the claims after the preliminary hearing in July 2021, particularly bearing in mind the upcoming Judicial Mediation.

[39]However we find that in September 2021 at the Judicial Mediation the claimant took a wholly unreasonable approach to mediation and settlement. The threshold is therefore met at that point, however for completeness and in order properly to exercise our discretion whether to award costs, we have considered the rest of the chronology.

[40]There is further unreasonable conduct in respect of those matters for which deposit orders made and paid in January 2021, in accordance with rule 39(5). The claimant has said nothing to persuade us that it was not unreasonable for him to continue to pursue those claims. He was warned in respect of taking a scatter gun approach and told explicitly the impact on costs of the deposit order.

[41]We do not consider the offer of withdrawal in exchange for withdrawal of the costs application in March 2022 takes the matter much further given the low level of costs which were in fact then awarded.

[42]The claimant had a further opportunity to settle the claims in December 2022 in advance of the final hearing when the offer was made in the sum of £80,000. This offer does not take the matter further as it is is equivocal as to what would happen to costs already incurred and as to whether there would be an application in respect of them. That was the last offer made before the hearing commenced in January 2023.

[43]In summary, from the point of Judicial Mediation in September 2021 it was unreasonable for the claimant to continue to pursue the claims. The remaining chronology does not alter that in any way, save to note that he subsequently chose to pay deposits in respect of claims which he had been told had little reasonable prospects of success. Other unreasonable and/or disruptive conduct Requiring documents to be sent in hard copy and via special delivery

[44]This issue was dealt with comprehensively in Employment Judge Adkin’s judgment of 7 June 2022 at paragraphs 92 to 106. It was found that there was unreasonable conduct in respect of deliberately refusing to accept delivery of documents or to pick up documents if he could not answer the door. It was however found that there was no unreasonable conduct in respect of the claimant’s refusal to accept documents electronically. We note that while the claimant plainly has access to a computer that does not necessarily mean that he has internet access or email to accept documents electronically other than on a memory stick. We have not been given examples of conduct in this regard which we consider unreasonable after April 2022 and therefore this matter has already been considered and dealt with by EJ Adkin. Adopting a scatter-gun approach in claims

[45]The claimant’s approach to the claims and whether he believed they had merit has already been considered above in respect of the prospects of success and whether it was reasonable to pursue them. Failure to engage in settlement and inflating the value of the claims

[46]The claimant’s approach to settlement and his unrealistic views as to the value of his claims has already been considered above.

[47]We have considered in full the points made in the respondent’s letter of 28 April 2023 and do not consider there is any further unreasonable conduct not already set out above. We note in particular the suggestion made in the respondent’s written submissions that the claimant had been found to be dishonest by the Tribunal in a number of significant respects. We have reviewed the previous findings and cannot find reference to the claimant being found to be dishonest. Whether the Tribunal should take into account the claimant’s ability to pay

[48]When deposit orders were considered the claimant failed to provide evidence of financial means, however Employment Judge Adkin accepted that at that time he was not working or in receipt of benefits. He had an adult child in his 20s who was in an apprenticeship scheme and had equity in a property.

[49]In the costs judgment of 7 June 2022 Employment Judge Adkin noted that the property had equity in the region of £240,000 to £300,000 and that the claimant was not in employment. It was noted that the property was not a liquid asset. On the other hand the claimant was able to find a substantial sum to pay part of the deposit order.

[50]Following the respondent’s costs application in April 2023 a case management hearing was held on 8 June 2023 before Employment Judge Stout. She ordered that the claimant must provide a witness statement detailing his financial means, i.e. including at least details of income (including from employment or benefits or any other source), savings, and any substantial property owned (i.e. house or flat or car or similar) and regular monthly expenditure together with documentary evidence by 29 September 2023.

[51]The claimant provided written submissions dated 28 September 2023 in which he said he had no income and relied on others to get by, however he did not comply with the order to provide detailed financial information. The respondent applied for an unless order on 3 October 2023. Employment Judge Stout considered that application and refused it. However, she specifically noted: “As the Claimant has failed to comply with the order, the Tribunal will not be able to take his means into account under Rule 84 with the result being that any costs Oder made against him is likely to be much higher than it would have been if he had complied with the order and provided evidence as to his means. That was explained to the Claimant by me previously, so I infer that his decision not to comply with that order took into account that likely consequence.”

[52]The claimant did not provide anything in relation to his means in advance of the hearing. He was invited by the Tribunal to present anything he wished the Tribunal to consider by the second morning of the hearing. He produced two pages without an accompanying witness statement, showing a bank balance of £2,393.10 as at September 2023 and £2,222.51 as at 30 October 2023. He further provided a letter showing that a refund of insurance premiums totalling £1,078.22 was being paid into that account in August 2023, which is shown in the detail of transactions we have been provided with.

[53]The claimant was asked if he wanted to give evidence about his means and he declined, simply saying he did not have £1.2m to pay. He later mentioned in his submissions he has no income and is being supported by friends and family.

[54]The respondent noted that his bank account has remained at around the same level and we have no explanation where his income is coming from.

[55]We conclude that the claimant has had every opportunity to provide detailed evidence of his means and has been made aware of the consequences of not doing so. Although he provided some information at the hearing he declined to be cross examined on it and what he provided was extremely limited. We take into account the guidance given in Jilly and Greig and find that the claimant has given unsatisfactory and unclear evidence as to his means. In the circumstances we have decided we should not exercise our discretion to take the claimant’s means into account in deciding whether to award costs and if so in what amount. Whether the Tribunal should exercise its discretion to award costs

[56]Having found that the claims had no reasonable prospects of success and that after September 2021 they were unreasonably pursued, and having determined that the claimant’s means should not be taken into account at this stage, we consider it is in the interests of justice that in this case consequences should follow from the claimant’s unreasonable pursuit of unmeritorious claims. In the circumstances we exercise our discretion to award costs.

Conclusion

[57]However we are not satisfied that the respondent should have all of its costs.

[58]A costs application has already been made in respect of costs up to and including 18 January 2022 which was the subject of Employment Judge Adkin’s judgment dated 7 June 2022. In that application the respondent chose to limit the costs claimed to £20,000 in respect of unreasonable conduct and the pursuit of claims with no reasonable prospects of success, and £2,500 was ordered to be paid. The respondent in that application did seek to reserve the right to pursue all the costs in Part One of the costs schedule for the period up to 18 January 2022 and all costs from 19 January 2022 if the claims were later found to be unmeritorious. Part One appears to relate to the preliminary consideration of the claims and early hearings, prior to the Judicial Mediation in September 2021, which is the point at which we consider it was unreasonable to pursue the claims. Although we have found that the claims had no reasonable prospect of success at the outset, given the claimant’s status as a litigant in person we do not consider it is fair to award costs in respect of the period where pursuit of the claims, even though they were unmeritorious, was not unreasonable. The respondent now also seems to be seeking the same costs as originally included in Parts 2 to 5 of the application considered by Employment Judge Adkin. It was confirmed that the whole costs were sought and the £2,500 was to be deducted. We find that if we were to award such costs it would amount effectively to a ‘second bit of the cherry’, going far beyond what the respondent said it was reserving in its first costs application and allowing it to go behind the choice made earlier in proceedings to limit Parts 2 to 5 to £20,000 and Employment Judge Adkin’s careful assessment of those costs. Basis of assessment of costs

[59]The costs from 19 January 2022 significantly exceed the £20,000 cap for summary assessment. We do not consider it would be a fair reflection of the costs wasted by the claimant’s unreasonable conduct to limit the costs to this level of award. In the circumstances we find that there should be a detailed assessment by an Employment Judge.

[60]We have considered whether costs ought to be on an indemnity or standard basis. We are significantly concerned about the proportionality of the costs incurred in this case, which exceed £1m. We are unable to say what the impact would be on the claimant’s ability to pay of ordering costs on an indemnity basis, and we are mindful that indemnity costs should be rare. In the circumstances we order that costs should be assessed on a standard basis.

[61]We have further considered whether to impose a cap or a percentage on the level of costs which may be awarded. We have already imposed a chronological limit on costs in that only costs incurred after 18 January 2022 may be considered. We also make it clear that no costs in relation to the equal pay issues which have yet to be determined should be included in the respondent’s costs schedule.

[62]We do not feel we are in a position to impose a cap on costs, because we have not taken into account the claimant’s means and do not know clearly what he may be able to afford to pay.

[63]However, we are minded to apply a percentage to the costs which may be awarded. We bear in mind that on the one hand, significant costs have been incurred by the respondent as a result of the claimant’s conduct. On the other hand, costs are not intended to be punitive and ought to be exceptional, and we are concerned about the proportionality of the costs incurred. The claimant is a litigant in person who has not had legal advice (and has been found not to have been unreasonable in not getting such advice), and has in our view had a strong emotional reaction to the proceedings which may have impacted on his ability to appreciate the various warnings given to him. In particular we take into account his written submission that in his view he felt threatened by cost warning letters (though we are not finding that the content of any of the letters was in fact inappropriate) and has been struggling and has had vulnerabilities to his mental health. Although we have not had formal medical evidence we accept the claimant’s submissions in this regard. We have considered these competing factors carefully. In our view the appropriate percentage to be applied to the assessed costs is 20%.

[64]In summary, we award costs in respect of all issues except for equal pay which is yet to be determined. Costs are limited to the period from 19 January 2022, and the claimant is ordered to pay 20% of such costs as are assessed to have been incurred during that period on a standard basis.

[65]We further order that the deposits of £800 paid in respect of the non-equal pay issues shall be paid to the respondent and deducted from the sums ordered to be paid.

[66]For the avoidance of doubt this judgment does not impact on the previous costs order for £2,500 which it is understood remains outstanding.

Conclusions

[1]There is no reasonable prospect of the original decision being varied or revoked. The majority of the points raised by the claimant were either argued by him during the course of the hearing and considered by the Tribunal, or were considered of the Tribunal’s own volition, and no new issues have been raised save for an issue in respect of the treatment of judicial mediation.

[2]As to the references to judicial mediation, it is customary for judicial mediation to be confidential and not to be referenced during the course of proceedings. In the present case however, both parties sought to rely on the conduct of the other in respect of the judicial mediation, thus waiving the confidentiality of the process. The Tribunal took care to distinguish offers made by the respondent in respect of the whole of the proceedings (including equal pay) which remained privileged and where the claimant had not waived that privilege and did not take such offers into account (see paragraph 35 of the Judgment). Further, the only reason the Tribunal considered that there had not been unreasonable conduct in continuing with 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 2206616/2020 the proceedings in June 2021 prior to the mediation was because the mediation was due to take place (see paragraph 38 of the Judgment). Finally, the Tribunal in any event did not order that costs should be paid from the point of mediation in September 2021. Respondent’s application

[3]The respondent applied on 17 January 2023 for a payment of costs on account of the costs ordered by the Tribunal, asserting that these could be ordered under Rule 78(1)(a). Rule 78 provides: (1) A costs order may – (a) Order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) Order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment…

[4]The original application for costs made by the respondent was for costs under Rule 78(1)(b), to be subject to detailed assessment, and was successful. Rule 78(1)(a) refers to ‘the costs’ of the receiving party, not to the costs or part of those costs, in contrast to the wording of Rule 78(1)(b), and requires a summary assessment by the Tribunal of all the costs sought, capped at £20,000. The two headings are intended to be in the alternative, and it is not open to the respondent to seek costs on account up to £20,000 plus further costs to be subject to detailed assessment.

[5]In any event, had the respondent sought to argue that this was permissible, it would have to have done so by way of reconsideration. The application was not made until 17 January 2023, which is outside the 14 day time limit for an application of reconsideration to be made.

Conclusions

The law

[1]The claim (the only undetermined part of which comprises the claimant’s complaints of equal value) is struck out for each of the following three reasons:a. The claimant’s equal value complaints have no reasonable prospect of success;

b. The claim is scandalous and vexatious; and

c. The manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable and vexatious.

[2]The claimant’s application for a postponement of this hearing was refused.