Mr B Sanchez-Stoker v Reiss Edwards Ltd and others: 2207401/2023

EMPLOYMENT TRIBUNALS

Case No 2207401/2023

Between

Mr B Sanchez-StokerClaimant

Reiss Edwards Ltd and othersRespondent

Before

Employment Judge Norris, sitting alone (via CVP)

Date 10 June 2024

REASONS

[1]The Claimant worked for the First Respondent, a law firm, between 16 April 2019 and 12 January 2023 as the Office Manager. The Second and Third Respondents are solicitors and directors of the First Respondent. The Third Respondent was the founder of the firm and is also its sole shareholder.

[2]The reason for the Claimant’s dismissal is a matter that will be in issue at the main Hearing. Suffice it to say, the Respondents say that the reason for his dismissal was redundancy. The Claimant alleges that his dismissal was because of disability (direct discrimination) or because of something arising in consequence of disability (section 15 Equality Act (EqA) 2010) or that it was disability-related harassment (section 26 EqA 2010) or that it was victimisation (section 27 EqA 2010) or that it was a failure to make reasonable adjustments (section 21 EqA 2010) or that it was because he had made a protected disclosure or that it was because the Respondents believed he was likely to take shared parental leave.

[3]The Claimant also makes complaints of other discriminatory conduct in connection with his claimed disabilities. The Respondents deny the claim in its entirety. Case No: 2207401/2023 Hearings

[4]Early Conciliation took place between 20 February and 3 April 2023 and the Claimant submitted his claim on 3 May 2023. The Respondents lodged their response on 13 June 2023.

[5]The parties appeared before EJ Tinnion on 31 July 2023 for a Preliminary Hearing Case Management (PHCM). They were represented by Ms Ricci, Solicitor (for the Claimant) and Mr England, Counsel (for the Respondents).

[6]EJ Tinnion listed the matter for a full merits hearing for six days starting on 3 June 2024. He noted that the Claimant’s claimed disabilities were an inguinal hernia (left side) and flat feet. The Respondents did not accept that these amounted to disabilities. EJ Tinnion ordered the Claimant to send to the Respondents by 4 pm on 25 September 2023, two separate disability impact statements, one for each impairment and, by the same date and time, his relevant medical records. The Respondents were to confirm by 23 October whether disability was conceded in respect of the claimed impairments.

[7]The Claimant was also ordered to provide a substantial set of Further and Better Particulars relating to his allegations. If that necessitated any application to amend his claim, he was ordered to make that application by 25 September 2023.

[8]The Claimant supplied a single disability impact statement with different sections for each of his claimed impairments. It is unclear when he did so. The Respondents submitted revised grounds of resistance on 23 October 2023. At the same time they also wrote in explaining the reasons why disability was not conceded for either of the claimed impairments. On 17 January 2024, EJ Baty listed the matter for a public Preliminary Hearing (PH) on 28 March 2024 to determine the question of the Claimant’s disability status. That was the hearing before me.

[9]Some two weeks before the PH, the Claimant made attempts to postpone the hearing on the basis that Ms Ricci’s firm was no longer on the record and he had been unable to secure new representation. His applications were refused and the PH was to proceed. The Claimant also secured a GP note saying he was unfit for work, but it did not say he was unfit for the PH.

[10]At 08.31 on 28 March 2024, the Claimant’s partner emailed the Tribunal with an application to amend his claim to add two other disabilities.

[11]We began the PH just before 10.10. We encountered multiple difficulties during the course of the hearing:a. The parties had not exchanged witness statements for the PH. The Respondents wanted to call three witnesses (the two named Respondents and a colleague), all of whom had made statements, but the Claimant had not seen them. The Claimant said he had also produced a witness statement but this dealt with the substantive Case No: 2207401/2023 liability issues in large part. The Respondents had not seen that;

b. The bundle had not been agreed fully (possibly at all) but the Respondents’ solicitor had uploaded it to the DUC the previous evening. It could not be opened although the separate index could be accessed. The solicitor uploaded it again but the only part that could be opened started at page 434. I was told that this section was the Claimant’s additional documentation. His disability impact statement however was at page 70 and so I did not have it.

c. We adjourned for the Tribunal (and the Claimant) to read the Respondent’s three statements and so that the Claimant’s response to the Respondent’s letter of 23 October 2023 on disability status and the remainder of the bundle could be sent by email to the Tribunal Clerk. It proved impossible however for me to access the bundle using a Sharepoint link that was emailed to the Clerk.

d. The bundle was also too big to send as an emailed attachment, and over the course of the day, it was established that it would have to be broken into smaller sections and emailed as separate pdfs. I received parts 1, 2 and 5 during the lunch break. The other two sections would not come through. By the close of proceedings at 16.30, I still only had pages 1-200 and 401-433 by that method. The Respondents themselves emailed pages 201-400 to me via the Clerk after the hearing was over.

e. There were occasional issues with the CVP link. When this happened, we paused or asked whoever was speaking to repeat what they had said. I was satisfied that in this manner I was able to hear everything the parties wished to say.

f. There were also problems with the HMCTS recording of the hearing. Despite this and the other difficulties, given the proximity of the full hearing, there was not time to abandon the day’s proceedings and adjourn the PH to another day.

[12]At the beginning of the hearing, I explained that although the Claimant’s redacted medical records were in the bundle, the Claimant had sent the unredacted version to the Tribunal, and I had had the opportunity to read those. He had not copied in the Respondents’ representative and I reminded him of his obligation to do so whenever he emails the Tribunal, under the ET Rules of Procedure. In reaching my decision on the preliminary issues, I have had regard only to the redacted version that the Respondent has seen.

[13]We discussed the statutory definition of disability and I drew Mr England’s attention to some aspects of the Claimant’s medical records so far as they related to his flat feet, and in particular his use of insoles. I also drew the Claimant’s attention in turn to the “long-term” requirement in the definition so far as his hernia was concerned. It seemed to me that the Respondents had focused on what the Claimant could do, which is not the correct way to approach the issue. Mr England agreed, but noted that in the disability Case No: 2207401/2023 impact statement, the Claimant said there were a number of things he could not do, but the Respondents’ witnesses would say otherwise.

[14]I gave a preliminary indication that, without having seen the Respondents’ witness statements, it appeared the Claimant’s arguments that his flat feet were a disability were stronger than those relating to his hernia. I also made it clear however that this was not a concluded view. I said that I would spend time reading in once I had the statements and the bundle, and if the parties could not agree status in the meantime, I would hear evidence after the adjournment.

[15]In the event, we adjourned for an hour and then for a further 20 minutes. We eventually reconvened at 12.40 although as I have noted above, I still had not had the chance to see the bundle. There was no agreement between the parties as to status but rather than start the evidence before lunch, it was agreed that I should first determine the Claimant’s application to amend the claim to add two new disabilities (mental health and a fracture to his big toe). For reasons I gave at the time and do not repeat here, I did not allow the application. I explained to the Claimant that he may request full written reasons for that decision. We adjourned for lunch at 13.30.

[16]After lunch, the Claimant was cross-examined and then he cross-examined the Third Respondent. He did not have any questions for the Second Respondent or for the other witness (Ms Aslam) who had attended the day’s proceedings. By the time the evidence was concluded, it was 16.10. The parties were invited to make submissions in the remaining time. Initially that was agreed but then the Respondents said they wanted to put theirs in writing. I indicated that in that case, I would take the final Hearing out of the list for the beginning of June because there was no realistic prospect of the parties being trial ready by then if I could not get this decision out to them in the first few days in April. They still do not have a finalised list of issues, bundle or witness statements and the Hearing is just two months away. The Claimant is unrepresented and it was not reasonable to require the parties to work over the Easter weekend to produce written submissions. The Respondents then agreed to make oral submissions only and both sides did so before I reserved my decision.

[17]I record for completeness that I have not been able to access the video clips that the Respondents sent through but there were stills of them in the bundle and the contents were described in the witness statements.

[18]I reminded the parties at various points during the day and repeat here for the avoidance of doubt that it was not part of my remit at the PH to make findings as to any of the conduct complained of by the Claimant. Nor was I determining the question of knowledge (actual or deemed) on the part of the Respondents, or any of them, or whether all or any of the Claimant’s disability discrimination complaints are in time. Those issues will form part of the panel’s decision at the final Hearing.

Law

[19]According to section 6 EqA 2010: Case No: 2207401/2023 “(1) A person (P) has a disability if: -(a) P has a physical or mental impairment, and;

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities.”

[20]The burden of proof is on the Claimant to show on the balance of probabilities that he has a disability, whether it is a mental or physical condition. It is not necessary to consider how the impairment was caused; what must be determined is its effect.

[21]The meaning of “substantial” is dealt with in the interpretations clause at section 212 EqA 2010. This says that it means “more than minor or trivial.”

[22]Guidance on matters to be taken into account in determining questions relating to the definition of disability is available from the Disability Unit (formerly the Office for Disability Issues). This says (at B1) that “the requirement that an effect must be substantial reflects a general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people”.

[23]It was common ground before me that it is important to consider the things that a person cannot do, or can only do with difficulty. The time taken and the way in which an activity is done and the cumulative effects of an impairment are to be considered. Account should also be taken of whether a person avoids doing things which, for example, cause pain or fatigue or because of loss of energy or motivation.

[24]The meaning of “impairment” is dealt with in paragraph A3 which says: “The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. … In many cases there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effect.”

[25]The term “normal day-to-day activities” means activities that are carried out by most men and women on a fairly regular and frequent basis such as walking and driving.

[26]An impairment is “long-term” if it has lasted for twelve months or is likely to last for twelve months or for the rest the person’s life. If it has ceased to have the effect but is likely to recur, it is treated as long-term.

[27]In assessing the likelihood of an effect lasting for twelve months, account should be taken of the circumstances at the time the alleged discrimination Case No: 2207401/2023 took place. Anything which occurs after that time will not be relevant in assessing this likelihood. This means that the relevant time to consider whether a person was disabled is the date of the alleged discrimination and not the date of the Tribunal hearing. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to the individual (for example, their general state of health or age).

[28]The Guidance also notes that: “It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop…”.

[29]The EqA 2010 provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is “likely” (in the sense of “could well happen”) to have that effect. In other words, the impairment should be treated as having the effect that it would have without the measures in question. Treatment or correction measures to be disregarded for these purposes include, in particular, medical treatment and “the use of a prosthesis or other aid”. This provision applies even if the treatment or correction result in the effects of the impairment being completely under control or not at all apparent. Where treatment is continuing it may be masking or ameliorating a disability so that it does not have a substantial adverse effect. Findings and conclusions

[30]I had to determine whether either or both of the Claimant’s impairments as identified by EJ Tinnion at the PHCM on 31 July 2023 amounted to a physical impairment that had a substantial and long-term adverse effect on his ability to undertake normal day to day activities. Hernia

[31]The Claimant’s medical records show that on 16 December 2016, he saw his GP and indicated that the left lower side of his abdomen was more prominent than the right, something which he had noticed for around a year at that point. The GP diagnosed an inguinal hernia and noted that the Claimant was asymptomatic. The hernia was not tender to touch and it was agreed that at that stage there would be no referral for surgery to repair it. The Claimant was given advice about risk factors of his hernia becoming strangulated. The recent summary sheet of the records shows that this issue was considered as part of the Claimant’s “significant past” but that it continued only until March 2017.

[32]There is then a further entry in the summary sheet for “left inguinal hernia” for the period 1 May 2018 to 25 July 2018. It appears that the Claimant saw Case No: 2207401/2023 his GP on 1 May 2018 because he was required to have a medical examination to become a taxi cab driver. At that appointment, he appears to have been referred for surgery on the hernia, but according to a later entry, the Claimant did not go for the referral. There is an entry that says, “never has pain”, which I infer is related to the hernia. The Claimant himself in his disability impact statement does not suggest that it was having any impact on his day-to-day activities until 2022. He also says in his response to the Respondents’ letter of October 2023 that it became enlarged and painful in 2022 so that he knew he was going to have to have surgery.

[33]The Claimant claims in the same response that he did not go to the gym because when he tried to exercise, he could feel his hernia “popping in and out”, and that he told the Third Respondent about this. I do not know when the Claimant suggests this was occurring, but it is not supported by the evidence in the bundle. On the contrary, there is an exchange between them where the Claimant has sent the Third Respondent a screenshot of what I gather were his statistics at the end of a treadmill session. The Third Respondent encouraged the Claimant not just to “give it 50%” but to make the most out of each visit because of the money the Claimant was paying. The Claimant responded “Feel good again. So feel the difference just need to keep [it] up”.

[34]I consider that until the late summer of 2022, the evidence shows that the Claimant’s hernia was not causing him anything more than minor discomfort or inconvenience.

[35]On 25 October 2022 however, the Claimant spoke to the non-emergency 111 NHS line. An entry in his GP medical records the following day states that the hernia has been “causing more pain and discomfort recently and it’s grown in”.

[36]The Claimant was referred once more for surgery. An email to the Claimant from the Second Respondent on 2 November 2022 shows that the Claimant had advised the Respondents of his situation and that it was expected he would have an operation “which may be sometime in December 2022”. A further email two days later repeated that there was a possibility of surgery in December 2022 with an anticipated recovery period of one to two weeks.

[37]According to the medical notes, the surgery did not in fact take place until the end of June 2023. The Claimant says that it was not entirely successful and indeed the surgery may have put pressure on a second hernia that was concealed by the first, so that the second hernia has now become enlarged. All of this however took place after the termination of the Claimant’s employment.

[38]The side effects from which the Claimant claims to suffer as a result of his hernia, according to the disability impact statement are: stomach cramps and pain and cramps in abdomen, swelling of the left groin area, constipation, pain when bending down, crouching and standing up straight, not being able to eat properly (he does not detail further what is meant by this) and pain in the abdomen area when lifting heavy items. Case No: 2207401/2023

[39]During the PH the Claimant added that he had seen his GP at the end of August 2022 because the hernia was rubbing against his leg and causing sores. This appears to be what is meant by the words in the particulars of claim: “Given the location of hernia, when he walks it rubs against his let causing saws [sic]”. His GP records do not support this assertion. There are only two visits to the GP during August 2022 recorded in the notes and they are both related to podiatry referrals.

[40]It is not at all clear whether the Claimant was aware that in his disability impact statement he should have been describing the effects of the impairment at the point when he was employed by the Respondent rather than thereafter or even at the date of this hearing. I consider that the Hernia Referral Form in the bundle is likely to be more reliable than his disability impact statement in this regard, because this records what the Claimant told his treating clinicians contemporaneously.

[41]Unfortunately that form is not specifically dated. It does, as Mr England observed in cross-examination, have a handwritten date and time at the top, which is 26 April 2023 at 09.15, but I infer that is likely to be the time and date of a future appointment which has been scribbled on a document otherwise completed on a screen and printed out.

[42]I further infer that the form was the one which was completed by the Claimant’s GP and sent to the hospital in or around October 2022. I have done so because the narrative under the heading “Consultations” says that the Claimant’s hernia has been “present for approx. 6 years but recently it has started enlarging and causing pain and discomfort symptoms. Increasingly more difficult to reduce and lying on it causes pain”. The space on the following page of the form for “chronic pain history” is blank. There is nothing about any of the other symptoms or pain in any of the situations that the Claimant describes in his disability impact statement.

[43]I find, based on the medical evidence, that the Claimant’s hernia did not cause him any particular difficulty until between August and October 2022 at the earliest, over which period its enlargement went from causing him no problem or only “discomfort” to causing him “pain”, and that only when lying on it. As of the end of October/beginning of November 2022, it was anticipated that he would have surgery to repair it which could be completed in December 2022 with a short recovery period thereafter.

[44]Therefore, the period during which the hernia had a substantial (in the sense of more than minor or trivial) impact on the Claimant’s day-to-day activities was the last three to five months of his employment. It cannot be said that it was “likely” at that stage that it would last for twelve months. On the contrary, it was anticipated that it would have been resolved before his dismissal. Even though it was a further five months before his surgery took place, it could not have been foreseen that a previously undiagnosed second hernia would then cause problems that apparently persist to date.

[45]I find that the Claimant has not shown that his hernia was a disability at the relevant time. Case No: 2207401/2023 Flat feet/pes planus

[46]The Claimant was diagnosed with flat feet in 2011 and was referred to a specialist podiatry clinic. He has been under their care ever since, sometimes being discharged but returning. While the Respondent notes with some justification that having flat feet is a condition that affects a significant minority of the population, the question is whether the impact it has on the Claimant’s day-to-day activities is significant in the “more than minor or trivial” sense.

[47]The Claimant says that the following are the effects in his case:a. Pain in ankles, feet and legs including medium to severe hip and lower back pain;

b. Paraesthesia (numbness or tingling) in his big toe;

c. Walking with a limp, balance problems due to overpronation (the rolling inwards of feet when walking) and pain when walking due to calluses;

d. Posterior tibial tendon dysfunction;

e. Tarsal tunnel syndrome (sharp shooting pains in foot and leg).

[48]Consequently the Claimant has been fitted with orthotic insoles through the orthopaedic clinic. These insoles are replaced on the NHS when they wear out. Sometimes, the Claimant says, the insoles can cause pain in other parts of his body (e.g. his back) as they adapt to his walking pattern.

[49]The Claimant says that the following day-to-day activities are impacted by the above effects:a. He experiences a range of discomfort, and particularly in the evenings, when it becomes pain;

b. He cannot stand for long periods; thus he struggles to cook and clean;

c. He struggles to pick up and carry heavy objects;

d. His backache causes him difficulty in picking up and/or dressing his children;

e. The “aches and pains” cause him to become restless and tired;

f. He travels by car where possible and when there is parking available.

g. He finds it difficult to commute by public transport because of the walking and standing required;

h. He is less stable when carrying out physical activities such as walking. He fell on 18 November 2021 and broke his big toe. That Case No: 2207401/2023 has become deformed. At the time he could not wear shoes, was in pain and walked with a limp. The fracture caused pain and stiffness.

[50]The medical evidence in the bundle tends to support some or all of the above to a greater or lesser extent. For example:a. The Claimant was diagnosed in October 2011 with “bilateral foot and ankle pain” and “severe collapsed arches”. In December 2011, he was referred by his GP to a podiatry clinic for assessment of “chronic leg and foot pain”. He had bought insoles over the counter and found they “helped significantly” over the preceding two months. He had previously been unable to stand for prolonged periods and recalled heel pain as a child. He was prescribed bespoke orthotics which were posted to him a month later. He reported in February 2012 that they helped with pain while he was at work but that his feet still ached when he got home and put them up. He was advised to continue wearing his insoles.

b. By May 2012, the Claimant reported that the previous pain had reduced but he had developed pain on his left side when not weight-bearing and driving for long periods. This was attributed to “strain from dorsiflexion for long period of time”. By July of that year he was experiencing no pain or discomfort in ankle or feet. His insoles were working, though they were worn and breaking apart in places. New orthotics were prescribed with a view to discharging the Claimant if the improvement was maintained in a further twelve weeks and indeed, that occurred in October 2012.

c. In July 2014, the Claimant was referred by his GP back to the clinic to seek a replacement pair of insoles because the existing ones had worn out. He reported that the orthotics had made a difference and he was in no pain. Nonetheless, the same “deformities” remained, according to the podiatrist. In September 2014, while the Claimant reported being happy with his insoles overall, he had developed bilateral pain. A new replacement pair of insoles was approved.

d. The Claimant did not return to the clinic for several years and he was discharged in July 2015 after failing to make contact but in April 2019, he returned and underwent an assessment. His feet were said to be “grossly pronated” in stance and the impression/diagnosis was one of posterior tibial tendon dysfunction with suspected tarsal tunnel syndrome and plantar fasciitis. He reported paraesthesia in his feet and daily pain bilaterally but mostly in his left foot, ankle and lower leg. Walking and standing for long periods, wearing unsupportive footwear and not wearing orthotics were noted as aggravating factors to his pain.

e. In September 2019, the Claimant was fitted for bespoke orthotics. He again reported paraesthesia in both feet and daily pain bilaterally but mostly in his left foot, ankle and lower leg, on getting out of bed and with standing and walking. He was asking for a medical report for a claim against his previous employer. Case No: 2207401/2023

f. In November 2019, the Senior Podiatrist recorded that the Claimant had said he continued to have paraesthesia and pain when standing or walking, making weight-bearing activities increasingly difficult and causing problems at work if wearing shoes that were insufficiently supportive and/or that did not accommodate his insoles.

g. On 19 March 2020, the Claimant had a consultation with a podiatrist. This was by telephone because of COVID. The Claimant informed the clinician that he had been having back problems since getting his bespoke orthotics. He had however not arranged a six-week check-up or completed a referral form for physiotherapy. The clinician recorded having made it clear that he should have done so and that a follow-up appointment was booked for six weeks later. I accept that at or around that time the Claimant found it difficult to arrange face to face appointments and/or that appointments were cancelled because of pressures on the NHS due to the pandemic.

h. In June 2020 the Claimant’s GP recorded that the Claimant had low back pain which appears to have been linked to his podiatry issues and for which he was referred for physiotherapy.

i. In August 2021, the Claimant saw a podiatry specialist. The Claimant said that he had spent a lot of 2020 in pain and that he felt poor orthotic support had contributed to that. His new bespoke orthotics had caused too much pain with use, so he had reverted to using his old, heavily worn insoles, though these did not support him as required. The clinician noted that the old orthotics lacked rearfoot support, had a low heel seat and insufficient valgus correction. The Claimant was measured for new aids and instructed on their gradual wearing in once received.

j. In August 2022, the Claimant went to the podiatry clinic again. The Claimant told the clinician that he was in a lot of pain from a toe fracture. The clinician records that the area was inflamed and swollen. This provides both objective and subjective support for the Claimant’s condition at that time. This does not purport to be a complete analysis of the Claimant’s medical records, which are detailed, and some of which are handwritten and illegible or have been written in medical terms or using abbreviations which have not been explained. I did not consider it appropriate for me to carry out my own searches in this regard, but in fact nor was it necessary.

[51]The Claimant was reluctant to accept in cross-examination that he had exaggerated any of the symptoms of his condition or the reliance that he places on the orthotics. For example, there was evidence - in the unchallenged witness statements and in the bundle - of the Claimant:a. cooking for himself and others, including posting pictures of meals he has made or barbecues he has prepared; Case No: 2207401/2023

b. holding up without apparent difficulty heavy items of office furniture/bicycles, changing the tyres on the Third Respondent’s bike and moving apparently freely around the office including bending, reaching up and stretching following an office move and lifting and carrying a heavy box upstairs with the Third Respondent;

c. standing at the printer for long periods to scan or print files and reaching up or down to retrieve them from or return them to shelving;

d. playing snooker with the Third Respondent; walking and hiking recreationally. The Claimant denied hiking but I prefer the unchallenged evidence of Ms Aslam on this point;

e. walking with his child in a rucksack on his back and taking his child to at least one appointment according to the medical notes. The Claimant also denied that he had been the carer for this child while his partner worked, even though the Respondents had agreed to adjust his working hours in the office so that he could perform child care (including in one email saying he was unable to attend the offices three days a week due to “child care arrangements”). The Claimant claimed that he would just have “been there to look after him” while his partner was at work. I accept the Respondent’s submission that the limitations on what the Claimant was able to do for his son have been significantly exaggerated. I do not accept the Claimant’s evidence for example that he was unable to bend down to or pick up his child because of his flat feet or at all. I note that, for example, on 15 August 2022, there is an email from the Claimant to the Second and Third Respondents where he says he is using a half day’s annual leave to attend an appointment and collect his son, and a week earlier he had again asked to leave early so that he could pick his son up from nursery;

f. metal detecting, foraging and going fishing on the beach, including spending the day at the beach with the Third Respondent and their families when they went into the sea. The Claimant claims to have worn his trainers at all times while on wet sand and even while in shallow water. I do not accept his evidence on the latter point though I accept there is a photograph of him wearing trainers on the sand. I also accept the Third Respondent’s unchallenged evidence that the Claimant erected a pop-up tent with shelter (requiring him to bend and move around) and the evidence that their walk to the spot where they spent the day was around ten to fifteen minutes;

g. pre-pandemic, using public transport to get to work;

h. using the treadmill and other gym equipment and cycling, including trying out non-electric bikes and (when his battery failed) actively pedalling on his electric bike. The Claimant says that so far as cycling to work is concerned, he uses an electric bike that requires little or no pedalling and wears trainers with orthotics while doing so. I accept this evidence with the caveat that he told his GP in June 2020 that he was “active, cycling etc” in order to minimise discomfort Case No: 2207401/2023 or pain in his abdomen; and elsewhere (on an undated report) the Claimant complained of “crepitus” in his knee when cycling. I find that the Claimant has been able to cycle recreationally but that for the long commutes to work during and after the pandemic, it is likely on balance of probabilities that he was mainly using what he referred to as the “twist and go” facility on his Lime/electric bike;

i. going up and down stairs rather than using the lifts in the workplace when going out for a cigarette break. I accept the Respondents’ evidence that this occurred around four times a day, rather than the Claimant’s evidence that it was “maybe once or twice”;

j. walking for up to 20 minutes each way to and from cafes and restaurants to get coffee or lunch and attending workplace “social” events, including walking barefoot around the Third Respondent’s apartment and walking or using public transport when socialising at the weekends. The Claimant also said he would get the bus back if he walked to a particular Chinese restaurant in Liverpool Street which he eventually accepted was a 15-20-minute walk away. The Respondent has made much of a reference in the notes to the Claimant being able to “walk 600 yards and climb two flights of stairs”. While these may not be the Claimant’s own words and may well instead be a level of achievement that the clinician has used generically rather than specifically, I accept that when the Claimant wears his insoles, this accurately reflects what he can do;

k. sometimes wearing “formal” shoes to work rather than trainers. I note that orthotics are not fixed in any particular pair of shoes so I do not consider this to contradict the Claimant’s assertions either that his trainers were more supportive or that his insoles greatly reduced the pain and discomfort during and after the working day.

[52]In an email dated 8 February 2021, the Claimant has described his mother as his “adult dependent relative”. There is also reference to him possibly having “anxiety or depression related to caring for [his] mother”, in a letter from his then solicitor in an earlier claim against his previous employer that I gather was settled without a hearing. The Claimant was reluctant before me to accept that he is his mother’s carer and indeed suggested that it is she who cares for him. I do not accept the Claimant’s evidence before me on this point. I find he is capable of doing more than his statement suggests.

[53]I am cautious about the fact that there have been periods when the Claimant has seen clinicians when he was bringing Employment Tribunal claims against his previous employer or against these Respondents and accordingly, he may tend to exaggerate, whether or not consciously, at times when he wants the clinicians to support such claims. I am also mindful that the Claimant has occasionally not helped himself as might reasonably have been expected by:a. Failing to arrange or attend appointments so that he has been discharged from the podiatry service; Case No: 2207401/2023

b. Wearing old and worn-out orthotics;

c. Not following up on clinical referrals.

[54]It is also right to note that the Claimant was not automatically entitled to a “blue badge” to be able to use disabled parking and again did not attend a follow-up assessment to enable that to be reconsidered.

[55]Nonetheless, there is also ample evidence of the relief from the pain in his feet that the Claimant receives through wearing his insoles. I accept that during the period after he fractured his toe, he was unable to wear them because his foot was swollen and he could not get his shoe on (or could not get it on if he wore the orthotics). I do not consider that the Claimant is to be criticised for declining a course of pain relief via injection or surgery to attempt to correct his flat feet, as he describes the surgery as being both invasive and with long post-operative recovery time, with risks outweighing potential benefits.

[56]Overall then the things that the Claimant cannot do at all or can only do with difficulty (i.e. pain free) without his orthotics include walking, cycling, going up and downstairs, standing to cook or perform work functions such as scanning and printing. These are all day-to-day activities because people do them on a regular or daily basis. The fact that the Claimant can walk around without his orthotics on (e.g. while in the sea or in someone else’s flat) does not affect the conclusion that for the most part, he needs to wear them on a daily basis in order to be able to carry out very basic functions in mobility, to a greater extent than the majority of the population.

[57]The Claimant has had flat feet for well over ten years and although the impact is inconsistent, there is a very high likelihood of recurrence every time his orthotics wear out and have to be replaced. At times, it may cause different impacts at different times of the day, but there is always the underlying deformity (as one clinician described it). It is long-term.

[58]It may well be that the Claimant’s broken toe exacerbated the impact of his flat feet, or vice versa. However, even removing from consideration the difficulties that the Claimant experienced following that fracture, I conclude that the impact of his condition at the relevant time was more than minor or trivial. In the circumstances, it did amount to a disability. _____________________________ Employment Judge Norris Date: 1 April 2024

The Evidence

[59]Upon hearing the evidence, the Tribunal made the following findings of fact. The claimant’s role

[60]R1 is a small law firm specialising in immigration work. The claimant was employed by R1 as an office manager from 16 April 2019 until his dismissal on 12 January 2023.

[61]The claimant’s main responsibilities were handling incoming and outgoing post, scanning and filing documents, keeping the office tidy, and managing and handling all other ad hoc admin tasks such as meeting and greeting clients, offering tea and coffee. Additional tasks included paying suppliers’ invoices and salaries to R1’s staff, recording annual leave, checking system entries for payments had been accurately logged by the team, adding payments received to a spreadsheet and searching for things within the office.

[62]R1 aimed to become a paperless office, which required scanning a substantial volume of paper documents and returning the originals to clients (“the legacy files”). One of the key reasons JD and AA decided to hire the claimant was for him to perform that work. The claimant’s disability

[63]The relevant facts and conclusions related to the claimant's disability and other medical conditions are set out in the EJ Norris’ Reserved Judgment dated 1 April 2024. The Covid-19 lockdown Case Number: 2207401/2023 17

[64]In March 2020, following the government’s announcement of national lockdown, most of the R1’s staff started working from home, however, the claimant continued to attend the office until he was placed on furlough in April 2020.

[65]The claimant returned from furlough on 1 July 2020 and worked with JD and AA to enable other employees to return to office-working and to implement working from home policies for R1. The claimant attended the office until the end December 2020, approximately two days a week during the day.

[66]In late December 2020, the claimant’s mother (with whom the claimant lives) received a shielding letter from NHS. The claimant became concerned that he could contract Covid-19, when travelling to the office, or being in the office when others might come in, or if he met other tenants in the building, and pass it to his clinically vulnerable mother. He started to come to the office only at night to deal with post. The claimant decided to come at night, rather than after office hours, to avoid paying the London congestion charge when travelling to the office by car. JD’s signature incident

[67]On 3 February 2021, AA and JD asked the claimant to assist in certifying JD’s British passport and a bank statement by adding JD’s electronic signature. That was required by a law firm in Jersey (with which R1 worked on an immigration case) as part of its anti-money laundering procedure.

[68]JD worked from home and was not able to come to the office due to his sister having Covid-19. JD and Ben Inigo-Jones, having reviewed the Law Society’s guidance on electronic signatures decided that JD could certify AA’s passport and the bank statement by adding JD’s e-signature on photocopies of those documents.

[69]AA called the claimant and asked him to add JD’s e-signature on the documents. AA told the claimant to use the certification stamp in the office and that JD would send the claimant his signature to be added to the documents. Case Number: 2207401/2023 18 AA told the claimant that after he added JD’s signature, he should post the document to the firm in Jersey.

[70]JD then sent to the claimant a WhatsApp message with a picture of his first name “Joe” in JD’s handwriting, with the follow up message “That’s my signature bro”. “Joe” is not JD’s usual handwritten signature.

[71]The claimant understood that he was asked by AA and JD to forge JD’s signature using JD’s sample handwriting. When the claimant arrived in the office, he felt uneasy about that. He decided not to do what he understood AA and JD had asked him to do. He tried to call AA, but AA did not answer the phone, and later texted the claimant saying that he was tired and was going to bed. The claimant replied saying that he had left the documents on the AA’s desk for AA and JD to complete and send off. AA replied with a “thumbs up” sign.

[72]We make no factual findings whether AA and JD indeed asked the claimant to forge JD’s signature, that is because we do not make a factual finding on this issue to resolve the dispute before us. We, however, accept the claimant’s evidence that he genuinely thought that AA and JD had asked him to forge JD’s signature on the documents by using JD’s sample handwriting in the “Joe” WhatsApp message.

[73]AA and JD denied that in their evidence. JD said that what he had asked the claimant to do was in accordance with the Law Society’s guidance on e-signatures, which he had reviewed together with Ben Inigo-Jones before asking the claimant to add his e-signature to the documents. JD’s evidence was that he had asked the claimant to add his signature because the claimant “was proficient in using Adobe” and “Adobe was to be used to copy and paste the image [he] had provided of [his] name onto the document”.

[74]However, JD also gave the evidence that “Joe” is not his signature, and that he did feel comfortable with providing the claimant with his actual signature as the claimant was “assisting [JD] simply to add [JD’s] name to the document as an admin task using Adobe”. This, however, suggests that JD and AA wanted the Case Number: 2207401/2023 19 claimant to assist in certifying the AA’s passport and the bank statement by adding JD’s first name to the documents, rather than the JD’s actual signature, which is very unlikely to be in accordance with the Law Society’s guidance on electronic signatures.

[75]If, however, JD and AA wanted the claimant to assist in certifying documents with the JD’s actual signature, in accordance with the Law Society guidance, it is difficult to understand who the claimant was meant to do that using Adobe if JD had not provided the claimant with a sample of his actual signature. All that makes little sense. However, as I said earlier, we do not to make a definitive factual finding on this issue to resolve the dispute before us.

[76]The following morning AA called the claimant and asked him why he did not do what he had been asked to do with the certification of the documents. The claimant said that he did not want to do that because he did not feel it was right. The claimant also said that he was tired attending the office late, and that he should be paid overtime for that. AA said that the claimant did not need to attend the office late and that he was expected to come to the office during normal working hours. The claimant said that he was too busy with work and did not have enough time to complete all the tasks assigned to him. AA asked the claimant to fill in and submit timesheets, showing what tasks he was working, so that AA could see what “bogging” the claimant down. Alleged Protected Disclosure

[77]On 8 February 2021, the claimant sent an email to AA in which he said he did not want to come to the office during working hours, because he felt it was too risky and he could catch Covid-19 and pass it to his clinically vulnerable mother.

[78]In the same email, with reference to the JD’s signature incident on 3 February, the claimant wrote: “On Wednesday night we had a conversation whereby you asked me to do something that I did not feel comfortable in doing. I did not end up doing what you wanted me to do that night and subsequently the following day you called to speak to me about this and accused me of playing games. You then proceeded to hang up on me because I told you I did not appreciate the way you were speaking to me.” (my underlining) Case Number: 2207401/2023 20

[79]He relies on the underlined passage as protected disclosure for the purposes of his s.47B and 103A ERA complaints.

[80]The claimant went on to complain that since that incident he felt that AA had been “extremely awkward” towards him, by asking the claimant to attend the office during normal working hours and asking the claimant to account for tasks he had been working on. The claimant said that he felt he was being micromanaged, which was adding unnecessary stress to his working day. He ended the email by saying that he wanted to get on with his work “as if last week [had] not happen[ed]”, and that he “would be happy to have a chat to clear the air.”

[81]In reply, AA messaged the claimant saying: “Give me a call, I think you are overthinking what has happened And what I'm asking for. It's not that deep dude And to be honest, that email is really sadden me to read as I thought our friendship and working relationship had more strength to it then that What you have now done with that email Is making it hard for us to be as close as we have become which is a shame.”

[82]The claimant replied saying that his email was to simply clarify [his position] in response to the AA’s request for the claimant to attend the office, that he wished that “last week never happened” and that he wanted to resolve the matter.

[83]There were further WhatsApp exchanges between the claimant and AA on that day, in which they agreed to draw a line under that incident and move on.

[84]AA and the claimant were not only work colleagues but good friends, who frequently socialised together, visited each other homes, went cycling and camping together. They remained on good terms as both friends and colleagues after the JD’s signature incident. Timesheets and office attendance

[85]At the material times all R1’s employees were required to record their time by completing timesheets. That applied to the claimant too. He was specifically asked by AA to compete timesheets first on 21 December 2020. AA made the Case Number: 2207401/2023 21 same request orally to the claimant several times, which the claimant ignored. AA repeated the request in writing on 8 and 17 February 2021. The claimant continued to ignore the AA’s request.

[86]On 21 June 2021, the claimant received a pay rise of £1,500, increasing his annual salary to £26,500.

[87]In August 2021, it was agreed that the claimant would be attending the office once or twice a week to process and oversee all incoming post. The claimant’s non-attendance of the office caused problems with handling of post, which meant that the R1’s casework team were struggling to deal with their caseload. That was discussed at a call between AA, JD, the claimant and the caseload team leader on 15 July 2021 and 23 July 2021.

[88]On 7 October 2021, the claimant’s direct management line moved from AA to JD. JD asked the claimant to return to the office to handle post because the casework team was still struggling to deal with post whilst not compromising their primary tasks of attending on clients’ matters. The claimant refused to do so by claiming that handing post was part of the caseworker’s role. JD insisted that the claimant must come to the office at least 3 days a week. The claimant drafted an email to AA and JD to say that he was unable to come to the office 3 days a week due to his childcare arrangements and wanted to work from home. It appears that he, however, never sent that email.

[89]On 18 November 2021, the claimant injured his toe.

[90]On 30 November 2021, the claimant asked JD if he could work from home because he was “limping” and could not put a lot of pressure on his left foot and was still in pain. JD agreed.

[91]On 16 December 2021, the claimant obtained a fit note from his GP. The note said that due to the foot injury the claimant was unable to fully weight-bear but was able to work from home. The fit note stated that this would be the case until 16 January 2022. However, the claimant did not return to the office upon the expiry of the fit note. Case Number: 2207401/2023 22

[92]The claimant evidence was that he had been signed off by his GP from 16 January until 21 February 2022. In support of that he produced a duplicate fit note issued on 9 February 2022. AA and JD gave the evidence that the claimant had not provided that fit note to them. On balance, although we accept that the claimant had attended his GP on 19 January 2022 and GP extended the fit note on the same basis (“unable to fully weight-bear but is able to work from home”) until 21 February 2022, we find that the claimant never sent that fit note to the respondents. We accept JD’s and AA’s evidence on this. Furthermore, it was the claimant’s responsibility to file fit notes in HR electronic files, and as the contemporaneous documents show that fit note was not filed in the claimant’s HR file, unlike all his previous fit notes. Finally, it is a duplicate note, issued on 9 February 2022, not 19 January, when the claimant attended his GP. Therefore, contrary to the claimant’s evidence that he provided that note to AA and JD on 19 January 2022, he could not have provided that note before it was issued on 9 February 2022.

[93]On 27 January 2022, JD asked the claimant again to submit his timesheets. JD sent the claimant a blank copy of the timesheet to use. The claimant replied saying that it would “be really hard for [him] to start doing a time sheet”, “plus we management”, that “it would not be accurate”, that he had “never even done one before in [his] previous roles”, that he had “a lot on”, and did not know if he could “even think about this [at this moment].” He then contacted AA to complain. AA said that the claimant must submit his timesheets, as requested by JD. The claimant said: “fuck this” and hung up. AA messaged the claimant, admonishing him for his conduct, and reiterating that the claimant must do timesheets: “Everyone in our firm does time sheets so let's have yours from today.”

[94]The same morning, the claimant had a further exchange of messages with JD, in which the claimant resisted submitting his timesheets. JD insisted that the claimant must start completing and submitting timesheets “from tomorrow”. The claimant ignored that. He did not start providing his timesheets, as instructed. Case Number: 2207401/2023 23

[95]On 31 January 2022, R1 was notified by its building manager (Regus) that the office was closing operation and R1 must vacate the premises by 10 February 2022, and they (Regus) would assist with the relocation to an alternative office. Incident on 3 February 2022

[96]On 3 February 2022, during the preparation of the office move, the claimant sat in a meeting room in the office, talking to his GP about the results of the MRI scan on his injured toe. When the claimant was having his call with the GP, AA walked into the meeting room to collect some files. At first, AA did not notice the claimant in the room. When AA saw the claimant, he asked what the claimant was doing there. The claimant said that he was on an important call. AA asked the claimant to use the second meeting room to finish the call because AA needed to collect some files from that room.

[97]The claimant became upset by that interaction. He said that AA was accusing him of being lazy when he was talking to his doctor. AA said that he did not call the claimant lazy, that he did not know that the claimant was talking to his doctor, that they had limited time to organise everything for the move, and that the claimant could have used the second meeting room for a private call, which did not have files.

[98]On that call, the claimant’s GP told the claimant that the MRI results showed that the claimant had fractured his toe. The claimant became upset. He left the office to recompose himself.

[99]On 6 February 2022, AA emailed the claimant asking him to come to the office that week (from 7 February) every day to help with the move. AA said that the claimant was free to instruct the team on how the claimant wanted them to help him with managing the move. The primary tasks the claimant had to attend to was to manage the logistics of moving the office and to scan and shred scanned documents, which did not need to be moved to the new office. The claimant was not required to physically move any furniture, cabinets, equipment, boxes, or other heavy items. These tasks were performed by Regus’ contractors. Case Number: 2207401/2023 24

[100]The claimant did not object to that instruction and came to the office to assist with the move.

[101]On 10 February 2022, the office move was completed. The claimant returned to working from home.

[102]On 21 February 2022, JD again messaged the claimant to say that he must start doing timesheets. The claimant said that he would do that. However, the claimant did not submit his timesheets.

[103]On the same day, the claimant informed AA and JD that his toe injury had recovered and that his doctor had advised him to do some toe exercises and stretches and that there was nothing more they [doctors] could do. JD asked the claimant to return to working from the office, starting on 22 February 2022. The claimant resisted, saying that he was swamped with work, and that post handling work should be given to caseworkers. In response, JD reiterated that post was the claimant’s responsibility, and the claimant, as R1’s office manager, was expected to fulfil these duties. JD asked what elements of the claimant’s role kept him “swamped”. The claimant argued back that post was not his responsibility. He said that he would provide a substantive response later that day. He did not provide a substantive response.

[104]On 24 February 2022, the claimant sent in another fit note stating that due to fracture of his toe he could work from home “as still unable to weight bear- difficulty commuting and walking”. GP clicked on all four “you may benefit from” boxes”: “a phased return to work”, “altered hours”, “amended duties” and “workplace adaptations”. The note stated that it would be the case until 31 March 2022.

[105]On 28 February 2022, JD sent an email to the claimant giving him a written warning for failing to submit his timesheets.

[106]On 1 March 2022, JD emailed the claimant telling him that “moving forward”, the claimant should email his timesheets to JD or send them via Teams at the end of each day. The claimant did not respond. Later that morning, JD emailed the claimant to say that the claimant had not logged into work via Teams and Case Number: 2207401/2023 25 that as he was not on annual leave or off sick, JD wanted the claimant to clarify the situation. The claimant did not respond.

[107]The same morning, the claimant sent to AA a lengthy email complaining about DJ and objecting to the warning and requesting it to be withdrawn. The claimant continued to argue that post was not part of his role.

[108]On 2 March 2022, AA agreed to downgrade the warning to a final reminder, not because AA decided it was wrongly issues, but because AA felt that it would be too demotivating for the claimant. However, AA insisted that the claimant must submit his timesheets daily, and if he failed to do so, that would be “recorded as formal”. AA gave the claimant further instructions on how to prepare and submit timesheets. In the same email AA wrote: “If you disagree with what is being asked of you or how someone has expressed themselves to you, we need to bank on you being able to work the next day as business goes on. On this occasion we will not dwell on yesterdays unauthorised absence (please ensure this is recorded as unauthorised sick leave and you are not paid for this day off), but I ask that you try and not take leave without prior approval moving forwards.”

[109]The claimant continued to ignore JD’s and AA’s instructions to submit timesheets. Moving cabinets

[110]In or around April 2022, the claimant had decided that filing cabinets needed to be moved between the rooms in the office. He asked the building management company to help move the cabinets. The building management company instructed a contractor, Mr Joao Gomes de Asencao (“JGA”), to move the cabinets. JGA came with the “skates” to move the cabinets. However, the claimant had not gone through the contents of the cabinets and was not ready for JGA to move the cabinets. JGA left the skates in the office, expecting the claimant to contact him when he was ready.

[111]Because of the delay on the part of the claimant in going through the contents of the cabinets, JGA came back to collect the skates as he needed them for another office move. Case Number: 2207401/2023 26

[112]On 21 April 2022, AA emailed the claimant about various matters, including about the progress made with moving the cabinets. In that email AA wrote: “You also mentioned you would be moving the cabinets to the meeting room. As this was your idea to do, it's a shame that 3/4 weeks later there is no updates with it.”

[113]In late April, the claimant contacted JGA and said that he was ready for JGA to come and move the cabinets. JGA came and moved the cabinets. Proposal to make Office Manager role redundant

[114]R1 used external accountants (Lanop Accountant) and external HR consultants for accountancy and HR work, respectively. During the pandemic the claimant assisted with various HR and accountancy tasks, such as running payroll and liaising with the HR consultants on some staff matters (e.g. redundancy).

[115]In early March 2022, AA and JD decided that the external HR and accountants should undertake more work for R1, thus freeing up the claimant’s time to focus on his core duties, in particular scanning the legacy files to achieve the aim of R1 becoming paperless office.

[116]Around the same time, AA and JD discussed the future remit of the claimant’s role after the legacy files scanning had been done. They concluded that with all HR and accountancy work being outsourced, the new paperless way of working and less clients attending the office in person, the claimant’s role would be substantially different, involving dealing with post and stationery, and some other minor administrative tasks. They decided to engage their HR advisors to carry out a job assessment of the claimant’s role. They also decided that they needed to monitor whether clients would be coming back to the office to the same degree as before the pandemic, in which case the claimant’s role would still be needed, however, in any event, the claimant’s role was office-based and he needed to be in the office full-time. Case Number: 2207401/2023 27

[117]On 27 June 2022, AA and JD discussed that no progress was made by the claimant on scanning the legacy files. It was agreed that AA to formally instruct the claimant to complete that work urgently. They note that if the claimant refused then AA would have to do that himself, but that would bring into question the need for the office manager role.

[118]On 28 June 2022, AA emailed the claimant asking for an update on scanning the legacy files and instructing him to prioritise that work. The claimant did not reply.

[119]On 4 August 2022, JD and AA met to review the situation with the legacy files scanning project. They noted that the claimant had made no real attempt to scan the legacy files. They noted that it was no longer acceptable for the claimant to continue to ignore their instructions. They agreed that if the claimant refused to undertake the scanning, they would speak with external HR to see what can be done.

[120]On 5 August 2022, JD emailed the claimant instructing him to attend to the legacy files scanning on a full-time basis.

[121]On 20 October 2022, the legacy files scanning was completed. AA and JD decided that although the need for an office manager role in its full remit was no longer present, there was still the need to return the original documents to clients and the claimant could undertake that work.

[122]On 21 October 2022, AA emailed the claimant asking him to work on the next stage of going paperless – the return of original documents to clients, and to assist with the recovery of outstanding payments. AA gave the claimant detailed instructions on what the claimant needed to do.

[123]On 24 October 2022, the claimant said that he was uncomfortable with either task, as he had had bad prior experience dealing with R1’s clients. JD and AA decided rather than instructing the claimant to undertake those tasks and potentially creating problems with the clients, they should consider whether, with the scanning work done, the claimant’s role became redundant. They agreed to Case Number: 2207401/2023 28 further discuss and finalise the position upon AA’s return from holiday on 3 November 2022. The claimant’s hernia

[124]On 2 November 2022, the claimant informed JD that had hernia and was unable to work from the office. The claimant said that he was due to have a surgery in December 2022 and should recover from it within a month. He asked JD if he could work from home during that period. JD said that the claimant could work from home “for now”. The claimant asked if JD meant “from now on”. JD said no, he meant “for now”.

[125]Later that evening, JD emailed the claimant. In his email JD wrote: “I write further to our meeting today at the end of today. In that meeting you confirmed that you had a hernia and that further with meeting a doctor, you were given a doctors note as well as a referral for an operation, which may be sometime in December 2022. I have no reason to doubt you. However, given your role as one which requires attendance at the office such as, scanning and addressing post in and out, meeting clients and taking them to the meeting room as well as general office management, it is my thought that there is not much for you to do whilst working from home. Therefore, given the primary reason you cannot attend the office is exclusively due to sickness, I would be minded to record those days as sick leave. […]”

[126]On 3 November 2022, the claimant replied to JD. He said that he could not afford not to work and that he felt that he could work from home. The claimant asked for a meeting to discuss what adjustments could be made to his role to allow him to work from home. The claimant enclosed a fit note, which stated that the claimant was fit to work with amended duties (working from home) due to his hernia and toe fracture. JD agreed to have a call to discuss, which they had later that day.

[127]On 3 November 2022, by a separate email the claimant sent to JD Ms Vu’s MAT B1 form, saying that the baby would be due most probably at the end of December, beginning of January. The claimant said that he would update JD on his paternity leave plans in due course. Case Number: 2207401/2023 29

[128]On 4 November 2022, JD emailed the claimant, summarising their telephone conversation on 3 November 2022, explaining why the claimant’s role required him to be in the office, why his duties cannot be reassigned to others, and reiterating that the claimant’s primary duties were and had always been of an office manager. JD concluded his email with: “Finally, you discussed the fact that you could not currently afford not to work in light of the fact that you had a child and you and your partner are expecting a second child. Whilst we acknowledge that as your employer, we may consider making reasonable adjustments, unfortunately, due to your role being Office Manager and the duties associated with that (as above). we do not consider an indefinite period of working from home to be a reasonable adjustment that we can support. We therefore do require you to return to the office with effect from Monday 7th November 2022. If you feel that you are unable to do this, then we ask that you seek urgent medical advice to help support your return to the office so that you can fulfil your role of Office Manager.”

[129]The claimant replied objecting to be asked to come to the office on Monday, because that would be going against his doctor’s advice. He asked the matter to be escalated to HR. JD replied, saying that the claimant could work from home on Monday “for now until a decision can be made.” By a separate email JD provided the claimant with contact details of the HR person, Nicola, and invited the claimant to speak to her, which he did. The claimant was allowed to work from home. Redundancy consultation and dismissal

[130]On 22 November 2022, JD had a video meeting with the claimant, at which he informed the claimant that his role was at risk of redundancy. Wendy Frazer, at external HR consultant, was also in attendance, as a note taker.

[131]Following that meeting, JD sent a letter to the claimant explaining the proposal to make the claimant’s role redundant and the consultation process to follow. By that letter the claimant was invited to the first consultation meeting on 24 November 2024. The letter was accompanied by a detailed business case for the proposed redundancy. Part of the proposal included replacing the office manager role with a new administrative assistant role on a part-time basis and a lower salary, which role was offered to the claimant. Case Number: 2207401/2023 30

[132]On 23 November 2022, the claimant replied, questioning the genuineness of the redundancy situation and asking to postpone the consultation meeting. The meeting was re-arranged for 29 November 2022.

[133]On 28 November 2022, due to a technical fault the claimant was temporarily unable to access R1’s IT systems. The fault affected some other employees of R1 and was fixed within a few hours. A similar fault had occurred in the past, affecting access of some employees, including AA, to the R1’s IT systems.

[134]The first redundancy consultation meeting took place on 29 November 2022. The same parties were present. The claimant was offered to be accompanied by a trade union representative or a colleague, which he declined. The claimant was provided with the minute of that meeting. The claimant provided his comments on the minute.

[135]The second consultation meeting took place on 6 December 2022. The same parties were present. The claimant again chose not to be accompanied at the meeting. The minute of the meeting was provided to the claimant, and he commented on it.

[136]On 7 December 2022, the claimant emailed JD stating his intention to take paternity leave. That was the first time the claimant indicated his intention to take paternity leave.

[137]On 13 December 2022, JD sent a letter to the claimant with the outcome of the second consultation meeting. In that letter, JD responded to all issues raised by the claimant at the consultation meetings and invited the claimant to a further (third) consultation meeting on 15 December 2022.

[138]On 15 December 2022, at the third and final consultation meeting (attended by the same parties), JD informed the claimant of the decision to dismiss the claimant for redundancy. The claimant was provided with the minute of the meeting, to which the claimant responded. The claimant asked to be allowed to take off the rest of the day. JD agreed. Case Number: 2207401/2023 31

[139]On 19 December 2022, JD confirmed the decision to terminate the claimant’s employment for redundancy, with the last day of employment being 12 January 2023.

[140]On 20 December 2022, JD by an email asked the claimant to confirm whether he wanted to take one or two weeks of paternity leave. In that email JD said that : “[i]n the event that your baby is late and as a result falls outside your notice period, we will ensure you will get paid for this statutory paternity entitlement in your final salary in the form of an ex-gratia payment.”

[141]On 28 December 2022, the claimant appealed his dismissal. The appeal meeting was fixed for 5 January 2023, and later postponed at the claimant’s request.

[142]On 4 January 2023, the claimant emailed JD and AA asking that neither of them, nor Wendy Frazer were involved in his appeal. In the same correspondence, the claimant requested to be provided with a blanket (open) reference letter, which was against the R1’s policy. The policy was to provide basic reference, and only upon request from a prospective employer.

[143]On 6 January 2023, the claimant’s child was born. The claimant emailed AA and JD to say that the baby was born and that he would be starting his paternity leave on 9 January 2023. AA replied to the claimant confirming that he would be on paternity leave until the end of his notice period (12 January 2023), and that he would be paid the remainer of his two-week statutory paternity leave period with his final pay.

[144]On 23 January 2023, AA emailed the claimant to confirm that his appeal would be heard by an independent external HR consultant, Olivia Flattery, on 26 January 2023.

[145]On 26 January 2023, the claimant emailed AA asking for the appeal to be decided in his absence on the papers.

[146]On 31 January 2023, the claimant was asked to return the company’s laptop. Case Number: 2207401/2023 32

[147]On 3 February 2023, the claimant was provided with the outcome of his appeal. Olivia Flattery decided not to uphold the claimant’s appeal.

The Law

[148]The relevant legal principles will be explained when dealing with specific complaints in the claim. Analysis and Conclusions

[149]There is a substantial overlap in the allegations advanced under different heads of claim. Considering how the claimant chose to advance his claim, with little (if any) thought given to properly allocating his allegations to appropriate heads of claim, but instead throwing them all together under each and every head of claim he could think of, unravelling his claim requires an iterative process by first “stripping off” the allegations that we found must fail on the facts, then “stripping off” the allegations that we found must fail on causation, and finally dealing with the remainder by reference to the specific heads of claim. I will also deal with our conclusions on the time/jurisdiction issues, to the extent remains relevant, when I come to deal with the relevant allegations and complaints.

[150]Almost all the allegations in the claim are being advanced in the alternative, as:a. less favourable treatment for the purposes of direct disability discrimination (s.13 EqA),

b. unfavourable treatment for the purposes of discrimination arising from disability (s.15 EqA),

c. acts of harassment (s.26 EqA),

d. acts of victimisation (s.27 EqA), and

e. whistleblowing detriments (s.47B ERA). Case Number: 2207401/2023 33 Some of them are not pleaded under certain heads of claims, or expressed slightly differently, but for the sake of completeness, I shall deal with them together first, and then by reference to the respective individual complaints, if remains relevant. I shall refer to them as “the overlapping allegations”.

[151]I pause here to observe that the alleged detriments for the purposes of s.47C(bb) (shared parental leave detriment) are less expansive. These are pleaded at paragraph 74 of the Grounds of Claim, though not in the Stirrat’s LoI. There are only three such alleged detriments:(i) subjecting the claimant to the redundancy process,

(ii) the dismissal, and

(iii) the claimant being disconnected from the R1’s working system on 28 November 2022. I shall deal with them separately.

[152]All factual findings are made on the balance of probabilities standard, meaning more likely than not. It should be noted, as was explained at the start of the hearing, that the evidential burden is on the claimant, both in terms of establishing, on the balance of probabilities, facts upon which he relies in advancing his complaints and establishing a prima facie case on causation with respect to his complaints of discrimination, whistleblowing, share parental leave detriments, and automatically unfair dismissal. The burden of establishing a potentially fair reason for dismissal is, of course, on R1. I will return to the burden of proof principles later in the judgment when dealing with individual allegations and complaints. Overlapping allegations

[153]There are 20 such overlapping allegations: 1) On the 3 February 2022, Mr Ali told the Claimant ‘you are lazy’ and ‘you are not helping’ when the Claimant took a call from his GP; 2) On the 6 February 2022, Mr Ali required the Claimant to attend the office every day when the Claimant was signed off to work from home only (flat feet and subsequent toe fracture); Case Number: 2207401/2023 34 3) In February 2022, Mr Ali and Mr Dinh instructed the Claimant to report daily on the activities carried out when Claimant worked from home; 4) On the 21 April 2022, Mr Ali and Mr Dinh chastised the Claimant for not moving the heavy storage cabinets when the Claimant was not able to do so; 5) On the 5 August 2022, Mr Ali and Mr Dinh instructed the Claimant to return to work full time at the office when the Claimant was not able to come into the office every day; 6) On the 2 November 2022, Mr Dinh telling the Claimant that unless he comes into work he will be signed off as sick when the Claimant was signed off to work from home; 7) On the 4 November 2022, Mr Ali and Mr Dinh refusing Claimant’s request to work from home temporarily in accordance with his sickness certificate; 8) On the 4 November 2022, Mr Dinh stating that the Claimant needs to urgently seek medical advice; 9) On the 4 November 2022, Mr Dinh stated that there are no reasonable adjustments that the Respondent can make; 10) Between February 2022, and the date of his dismissal, Respondents failed to consider and/or make reasonable adjustments in respect of his disabilities; 11) At all material times Respondents requirement that the Claimant does physical jobs (such as lifting boxes); 12) At all material times, the Respondents failure to carry out occupation health investigation; 13) The Respondents actions in advance of the redundancy process to effectively outsource the Claimant’s role; 14) The Respondents refusal to allow the Claimant to work from home due temporarily [this allegation, as written, makes little grammatical sense, but I take it as referring to all previous allegations of not allowing the claimant to work from home]; 15) The Respondents decision to instruct an outsourced HR function to action his dismissal through a redundancy process; 16) Commencing redundancy process in November 2022; 17) The Claimant’s dismissal; Case Number: 2207401/2023 35 18) Failure to uphold the claimant’s appeal; 19) The Respondent banning the Claimant from all systems on the 28 November 2022 in respect of both his disabilities. 20) Failure to issue a reference.

[154]It should be noted that there is a mismatch between the allegations of whistleblowing detriments, as pleaded in the Grounds of Claim and the claimant’s F&BP, and the Mr Stirrat’s LoI. Although, as was decided on the second day of the hearing, any allegations on the Stirrat’s LoI expanding the claim would not be considered, given that we needed to consider such “out of scope” allegations of whistleblowing detriments under other heads of claim, we have also considered them as alleged whistleblowing detriments. 1) On the 3 February 2022, Mr Ali told the Claimant ‘you are lazy’ and ‘you are not helping’ when the Claimant took a call from his GP

[155]We find that AA did not tell the claimant “you are lazy” and “you are not helping”. We prefer AA’s evidence on this point. We find him and JD were more credible witnesses than the claimant. Considering the claimant’s evidence how upset he was by that interaction, and the fact that he was not shy of putting his complaints in writing, it is more likely than not that if these words had been spoken, the claimant would have complained about that in writing. He did not.

[156]The claimant has the burden of proving that it was more likely than not that AA said those words and he has failed to do so. Therefore, this allegation fails on the facts with respect to all the complaints in the claim.

[157]Generally, we found the respondents’ witnesses more credible and helpful than the claimant. We reject the claimant’s criticism of their evidence. In particular, we reject his assertions that the respondents’ witnesses provided untruthful or inconsistent and contradictory evidence or sought to make multiple changes to their witness statements.

[158]We also reject the claimant’s baseless allegations that: “the Respondents and their legal team have used underhanded tactics to sabotage my claim by Case Number: 2207401/2023 36 lying to and misleading the Tribunal, tampering with evidence, failing to comply with directions and showing complete disregard to the Tribunal’s orders.” There is no truth in any of that. 4) On the 21 April 2022 Mr Ali and Mr Dinh chastised the Claimant for not moving the heavy storage cabinets when the Claimant was not able to do so.

[159]We find that AA and JD did not chastise the claimant for not moving the heavy storage cabinets. It is clear from the content of the email from AA that he was asking the claimant for an update on the project, initiated by the claimant to move the cabinets. There is no mention of the claimant having to move the cabinets himself. There is nothing in that email which could sensible be read as AA chastising the claimant for not moving the cabinets himself. The claimant accepted in cross-examination that JGA was going to move the cabinets. JGA provided a witness statement to that affect, which we accept. The claimant accepted his witness statement without any challenge. Therefore, this allegation too fails on the facts. 12) The Respondents actions in advance of the redundancy process to effectively outsource the Claimant’s role;

[160]We do not accept that the respondents “outsourced” the claimant’s role. The claimant role was and remained one of an office manager. He was not an HR manager, nor was he an accountant. We accept AA’s and JD’s evidence on that. Just because the claimant was asked on occasions to do some manual data entry work, which related to accounting and book-keeping, did not make him an accountant. Similarly, liaising with the external HR consultancy and doing some low-level admin work related to staff, did not make the claimant an HR manager.

[161]The claimant might have thought more of his position in the firm than it actually was. It appears he thought of himself as “management” on par with AA and DJ (see paragraph 93 above), free to decide which tasks he should do, and which tasks he could simply ignore. This, however, was a mistaken and Case Number: 2207401/2023 37 somewhat arrogant view for him to take. It was R1’s, as his employer, (via AA and JD) prerogative (and not the claimant’s) to define what his role involved and what the claimant should and should not be doing, and what tasks should take priority. That was explained to the claimant by AA and JD several times, but it appears that the claimant was not interested to listen.

[162]In short, we are satisfied that the claimant’s role was not “outsourced”. This, however, does not mean that the R1’s requirement for employees to carry out work of a particular kind (that is of an office manager) had not ceased or diminished. That is a different question, to which I will return later in the judgment. For the present purposes, we find that the allegation of the claimant’s role being outsourced fails on the facts. 14) The Respondents decision to instruct an outsourced HR function to action his dismissal through a redundancy process

[163]We find that respondents did not instruct “an outsourced HR function” to action the claimant’s dismissal. We accept AA’s and JD’s evidence on this. All the relevant decisions were taken by them. The fact that they consulted an external HR specialist to make sure they followed the correct redundancy process is not the same as “outsourcing” the decision-making. Therefore, this allegation too fails on the facts. 17) The Respondent banning the Claimant from all systems on the 28 November 2022.

[164]We find as a fact that the claimant was not banned from all systems on 28 November 2022. We accept AA’s evidence that it was simply an IT glitch that affected the claimant and three other employees, and that similar problem had occurred in the past, including affecting the AA’s access to the R1’s IT systems. Therefore, this allegation fails on the facts.

[165]This first iteration of considering the 20 overlapping allegations resulted in the above five allegations falling away on the facts. The remaining 15 overlapping allegations survive on the facts. However, before moving to consider them by Case Number: 2207401/2023 38 reference to the specific complaints in the claim, we have considered whether the evidence presented by the claimant were sufficient for him to meet the initial burden of proof with respect to those 15 overlapping allegations across all the heads of the claim under which they are advanced.

[166]That exercise resulted in the following 4 allegations failing on the first step of causation across all heads of claim, meaning that the claimant has presented no cogent evidence to show that those acts or failures to act had anything to do with his alleged protected disclosure, or disability, or anything arising from his disability, or protected acts, or him planning to take shared parental leave (I will refer to those as “the proscribed reasons”). In fact, in relation to some of them the claimant has accepted the respondents’ evidence to the contrary without challenge.

[167]I pause here to briefly explain the burden of proof provisions applicable to discrimination and whistleblowing claims.

[168]When it comes to the discrimination complaints (and for the purposes of this claim, this applies to the complaints of direct, indirect disability discrimination, discrimination arising from disability, victimisation, failure to make reasonable adjustments, and harassment related to disability) the so-called shifting burden of proof applies.

[169]Section 136 EqA states: (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[170]This means that there are two stages to the burden of proof. First step is for the claimant to establish primary facts from which the tribunal could (as opposed to - definitely would) decide, in the absence any other explanation, that discrimination took place. If the claimant discharges that burden, the evidential burden shifts to the respondents to prove that they did not discriminate against the claimant, meaning that the respondents must prove that the treatment Case Number: 2207401/2023 39 complained of was “in no sense whatsoever” because of the protected characteristic (or, in the case of victimisation complaint - the alleged protected acts).

[171]When considering whether the claimant has met the initial burden of proof, the Tribunal must disregard explanations for the treatment complained of provided by the respondents.

[172]In discrimination complaints the putative discriminator who carried out the act complained of must have been motivated by the protected characteristic (or, for the purposes of the complaint of victimisation – by the protected act). If he or she is innocent of any discriminatory motivation but has been influenced by information supplied or views expressed by another employee whose motivation is discriminatory, the correct approach is to treat the supply of information or view expressed by the other employee as the discriminatory action. (CLFIS (UK) Ltd v Reynolds

[2015] EWCA Civ 439

;

[2015] IRLR 562

, CA.)

[173]When considering what motivated the putative discriminator to treat the claimant in a way complained of, the Tribunal must consider the primary established facts and what permissible inferences can be drawn from such facts, being alive to the fact that it is rare to find direct evidence of discrimination and people might be unconsciously motivated to act in a discriminatory way by their biases, preconceptions, beliefs, attitudes, prejudices and perceptions.

[174]Similar burden of proof principles apply in whistleblowing detriment complaints (s.48(2) ERA), as further explained by the EAT in the case of International Petroleum Limited v Osipov and ors EAT 0058/17.

[175]The burden of proof lies with the claimant to show the ground or reason (that is more than trivial) for the detrimental treatment to which he was subjected is a protected disclosure he made. Under section 48(2) the employer must show why the detrimental treatment was done, if they do not do so, inferences may be drawn against them. Case Number: 2207401/2023 40

[176]Inferences drawn by the Tribunal must be justified by the facts found. Elias J in the case of Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

CA held that section 47B will be infringed if the protected disclosure materially (in the sense of more than trivially) influences the employers’ treatment of the whistleblower.

[177]On the question of causation, it must be proven that the wrongdoer knew about the disclosure. When deciding cases of whistleblowing detriment, the Tribunal must focus on the mental process of the decision maker, if the decision maker did not know of the protected disclosure, they cannot be influenced by it.

[178]Now, returning to the four overlapping allegation, in respect to which we find the claimant has failed to surmount the initial burden of proof. These are: 10) At all material times Respondents requirement that the Claimant does physical jobs (such as lifting boxes);

[179]Firstly, we find that the respondents did not require the claimant to do physical jobs over and above his normal day-to-day duties of an office manager. He was not required to lift heavy boxes, or to move storage cabinets, or do other physically demanding work. I have already dealt with the specific allegation about the claimant being chastised for not moving heavy storage cabinets. It has failed on the facts. The claimant was not required to move the cabinets himself and was not chastised for not doing that.

[180]The claimant presented no other cogent evidence as to when he was required to do heavy physical work. In cross-examination he said that he was expected to do heavy lifting, however, provided no examples of that and the basis upon which he says that expectation arose. In fact, he said that he was taking initiative in doing such work on some occasions. He never complained about that. The emails we have been shown record that the respondents were specifically telling the claimant to instruct the team to help, if required. In any event, the claimant presented no cogent evidence from which we could conclude that any such alleged requirement had anything to do with his whistleblowing, or his disability of flat feet, or any other proscribed reasons. Case Number: 2207401/2023 41

[181]Finally, to the extent the claimant complains that the requirement to do any physical work (such as scanning, shredding or franking post) was for the proscribed reasons, we reject that. As I said earlier, the claimant presented no cogent evidence from which we could come to such a conclusion.

[182]However, even if are wrong on this, and the burden of proof has shifted to the respondents, we are satisfied and accept the respondents’ evidence that such physical work was part and parcel of the claimant’s role as the office manager, and indeed they were the core functions of his role and the reason he had been hired in the first place.

[183]This allegation, therefore, fails on causation across all heads of claim. 11) At all material times, the Respondents failure to carry out occupation health investigation

[184]The claimant accepted in cross-examination that he had never asked for an occupational health assessment. There were no apparent reasons for the respondents to refer the claimant to occupational health. His absence was due to his injured toe. Some of the period of absence was covered by GP fit notes, which explained that the absence was temporary, the claimant could work from home, and could gradually return to the office when his toe healed.

[185]The claimant in his evidence said that the respondents simply did not think about referring him to occupational health. As explained above, a proscribed reason must be something that influenced the decision in more than a trivial manner – in this case the decision not to carry out an occupational health assessment. Accordingly, if, as the claimant says, it simply did not occur to the respondents to refer him to occupational health, it necessarily follows that not doing that could not have been for the proscribed reason.

[186]Therefore, this allegation fails on this basis. There is one caveat to this conclusion. That is because this is also alleged to be a PCP (not referring staff to occupational health) for the purposes of indirect discrimination and failure to Case Number: 2207401/2023 42 make reasonable adjustments complaints. Therefore, I will return to it later, when dealing with these two complaints. 16) Failure to uphold the claimant’s appeal

[187]The short answer to this allegation is that the claimant has failed to present any evidence that Ms Flattery, who decided not to uphold his appeal, from which we could conclude that in refusing his appeal she was in any way influenced by any of the proscribed reasons. In fact, judging by the appeal correspondence and the outcome letter, Ms Flattery would not have been ever aware of the claimant’s alleged protected disclosure, or the alleged protected acts, or his flat feet, or anything arising in consequence of his flat feet, or him planning to take shared parental leave. The claimant accepted her evidence without challenge that the decision not to uphold the appeal was her and her alone. Therefore, this allegation fails at this first evidential hurdle across all head of claim. 18)Failure to issue a reference

[188]Again, the claimant has roundly failed to present any cogent evidence from which we could conclude, in the absence of any explanation from the respondents, that the reason for not issuing him with a blanket (open) reference had anything to do with any of the proscribed reasons. The claimant provided no evidence that in similar circumstances blanket (open) references were given to other employees. In fact, the evidence before us showed that the claimant himself (with authorisation of the respondents) had been issuing only basic references and only in response to a request for a reference from a prospective employer. Therefore, this allegation fails at this first evidential hurdle too.

[189]However, even if we are wrong on this, and the burden of proof has shifted to the respondents, we are satisfied with the explanations provided by AA in his evidence as to the existence of the policy to give basic references only and only in response to a request for a reference from a prospective employer, and about the reason for that policy arising from the past bad experience with another former employee. We are satisfied that the proscribed reasons in no Case Number: 2207401/2023 43 sense whatsoever influenced the respondents’ decision not to give the claimant a blanket (open) reference.

[190]The upshot of this second round of the iterative exercise is that the list of the overlapping allegations has been trimmed down to 11. To examine them further, we find that it would be convenient to group them as follows:a. Detriments related to the requirement to come and work in the office,

b. Detriments of having to fill in timesheets,

c. Detriments of redundancy and dismissal.

[191]I pause here to explain that under s.47B(2), s.47B does not apply when the alleged detriment is dismissal. Similarly, Reg 42(3) of the Shared Parental Leave Regulations 2014/3050 says that protection from detriment does not apply when the alleged detriment amounts to dismissal. Instead, a claim for automatically unfair dismissal shall be brought under s.99 of ERA.

[192]Although, on the authority of Timis and anor v Osipov

2019 ICR 655

, CA, a complaint of dismissal as a detriment under s.47B ERA may be brought against individual respondents, in the recent decision in Wicked Vision Ltd v Rice

2024 EAT 29

, the EAT held that such claims cannot be pursued against the employer on the basis of the employer being vicariously liable for the acts of its employees under S.47B(1B), because such claims are barred by S.47B(2).

[193]In the present case, neither the claimant’s F&BP, nor the Stirrat’s LoI disclose a complaint against AA or JD as individual respondents for dismissal being a detriment. The claimant’s F&BP at paragraph 7.3 allege that AA and JD instructed the Respondent to do so [i.e. to dismiss the claimant] or further or in the alternative, played a part in this decision. It is not disputed that it was JD who took the decision to dismiss the claimant, and AA was in agreement with that decision. Therefore, it is not a case of an innocent decision-maker being manipulated by another person of hierarchy to the claimant (the so-called Jhuti exception). Case Number: 2207401/2023 44

[194]In short, in so far as the claimant’s dismissal is concerned, it cannot be pursued as s.47B or s.47C(bb) detriments. Instead, it must be considered as s.103A and s.99 ERA – automatically unfair dismissal. Of course, it should also be considered as the so-called discriminatory dismissal under the EqA.

[195]This means that for the purposes of s.47C(bb) – detriment for seeking to take shared parental leave, the only surviving allegation is subjecting the claimant to the redundancy process, and for the purposes of s.47B (“whistleblowing detriment”) – are the detriments related to time reporting and office attendance, even though it is not pleaded, or pleaded in different terms, (“micromanagement”) in the claimant’s F&BP. Time reporting detriment

[196]This detriment is being advance as direct disability discrimination, discrimination arising from disability, indirect disability discrimination, harassment related to disability, failure to make reasonable adjustments, victimisation, and whistleblowing detriment (with respect to the latter in the Stirrat’s LoI, but not in the claimant’s F&BP).

[197]Our primary finding is that the respondents had legitimate reasons and were well within their rights to require the claimant to report his time by completing timesheets. We also find that the claimant was not singled out in that respect, and other employees were required and reported their time. We accept Mr Inigo-Jones’ evidence that he reported his time on a regular basis. Ms Aslam gives the evidence that she had to report her time too, which evidence the claimant accepted without challenge. The fact that the claimant was not “client facing” is irrelevant. It is not for him to decide who in the R1’s firm should and who should not be reporting their time.

[198]We are also satisfied that the proscribed reason or reasons played no part whatsoever in the respondents asking the claimant to report his time. To put it simply, in the circumstances when:(a) the claimant had been continuously failing to attend to his primary duties, such as dealing with post or scanning the legacy files,

(b) had been telling AA and JD that the reason for that was him Case Number: 2207401/2023 45 being too busy with other tasks, and (c), due to the claimant working predominately from home, AA and JD having limited visibility as to what such other time-consuming tasks kept the claimant to busy to do his job properly, it is hardly surprising that they kept asking the claimant to report what he was doing, so that they could assess the situation and make sensible operational decisions on how to relieve the claimant from such other tasks, so that he could finally get on with the work he was employed to do.

[199]Furthermore, and for completeness, this allegation as a complaint of discrimination is wholly misconceived. That is because the claimant could not show (nor he even attempted to do) any link between the respondents’ asking him to report his time and his disability of flat feet, or between the respondents’ asking him to report his time and the “something arising from his disability”, which he claims was “limited mobility, requirement to work from home, limitation around physical work, and an increased likelihood of disability related absence in respect of symptoms and/or treatment”.

[200]The claimant provided no cogent evidence, and it would be absurd for us to find, that by being asked to record their time “in the manner of a fee earning lawyer” people with flat feet would be put at a particular disadvantage when compared to people who do not have flat feet.

[201]The claimant has also failed to show how that requirement placed him personally at a substantial disadvantage in comparison with non-disabled persons. Therefore, his complaint for failure to make reasonable adjustments with respect to this allegation fails at this evidential hurdle too.

[202]Although it is clear from the claimant’s resistance to submit timesheets that the respondent’s conduct requiring him to do that was “unwanted” (in the sense unwelcomed or uninvited), the claimant still presented no evidence whatsoever to show that it was in any sense related to his disability of flat feet.

[203]Furthermore, as the complaint of victimisation, it also fails on the timing. The claimant’s case is that he had been asked to report his time in February Case Number: 2207401/2023 46 2022, where the first act, which at a stretch could be said to amount to a protected act was not until 3 November 2022. Simply requesting to work from home or providing fit notes are not “protected acts” within the meaning of s.27(2) EqA. The claimant did not provide any cogent evidence or arguments to show that those were protected acts.

[204]Moving to s.47B complaint – first we find that it was not a detriment in law.

[205]In Ministry of Defence v Jeremiah

1980 ICR 13

, CA (a sex discrimination case), Lord Justice Brandon said that it meant simply ‘putting under a disadvantage’, while Lord Justice Brightman stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’. This view was approved by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL (also a sex discrimination case), where their Lordships emphasised that a sense of grievance which is not justified will not be sufficient to constitute a detriment. The same legal principles apply to whistleblowing and other ERA detriment cases.

[206]We find that it was not reasonable for the claimant to consider the legitimate requirement of his employer to report his time as a detriment. The claimant’s contract of employment (clause 1.2) required him “to perform all duties which may be required of him and to comply with all reasonable directions given to him and observe all the policies, procedures and rules of the Employer as may be introduced and/ or amended from time to time”.

[207]By his persistent and unreasonable refusal to submit timesheets, he was putting himself in breach of his employment contract, yet he was not subjected to any formal disciplinary action by the respondents. The formal warning had been withdrawn and substituted for a reminder. In any event, the warning was not being advanced as a detriment or any form of discriminatory treatment. Therefore, we find that it would be wholly unreasonable for the claimant to consider the respondents’ instructions to report time as a detriment. Detriment of redundancy process Case Number: 2207401/2023 47

[208]I have already dealt with the allegations that the respondents “outsourced” the claimant’s role and instructed an outsourced HR function to action the claimant’s dismissal (these are being advanced as allegations of discrimination arising from disability – para 2.12 and 2.14 on the Stirrat’s LoI). Both allegations failed on the facts.

[209]The remaining allegations of “redundancy” as a detriment is in relation to the decision to commence the redundancy process, advanced as an allegation of direct disability discrimination, harassment related to disability, victimisation and failure to make reasonable adjustments (paras 1.7, 1.14, 2.10, and 1.7 on the Stirrat’s LoI). There is also one remaining allegation of “subjecting the claimant to the redundancy process” as a detriment under s.47C(bb) for the claimant seeking to take shared parental leave.

[210]Starting with failure to make reasonable adjustments, it fails on the first hurdle of establishing a valid PCP. It was a one-off redundancy exercise affecting the claimant and the claimant alone.

[211]Section 15(4)(b) of the Equality Act 2006 says that the Tribunals should have regard to the Equality and Human Rights Commission’s Statutory Code of Practice on Employment (“the Code”) when dealing with discrimination cases, if appears relevant.

[212]With respect to PCPs the Code says (at [6.10]) “[It] should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.”

[213]The EAT in Lamb v The Business Academy Bexley EAT 0226/15 confirmed that “PCP” is to be construed broadly “having regard to the statute’s purpose of eliminating discrimination against those who suffer disadvantage from a disability”. Case Number: 2207401/2023 48

[214]Nevertheless, there are some limits to what can constitute a PCP. In particular, there must be an element of repetition, actual or potential. A genuine one-off decision which was not the application of policy is unlikely to be a “practice”: Nottingham City Transport Ltd v Harvey

[2013] All ER(D) 267

(Feb), EAT.

[215]In Ishola v Transport for London

[2020] ICR 1204

the Court of Appeal said that all three words “provision”, “criterion” and “practice” “..carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again.”

[216]This was a one-off redundancy exercise affecting the claimant and the claimant alone. Therefore, on the most generous interpretation, it cannot be sensibly said to be a practice with an element of repetition, actual or potential, or a state of affairs.

[217]Even if we are wrong on that, the claimant has failed to show how the respondents commencing the redundancy procedure in November 2022 put him at a substantial disadvantage when compared with persons without a disability – those that do not have flat feet. This allegation put as a complaint of failure to make reasonable adjustments makes little, if any, sense. It fails and is dismissed.

[218]As far as this allegation being framed as direct disability discrimination and harassment related to disability, our primary conclusion is that the claimant has failed to establish the facts, from which we could reasonably conclude that the claimant’s disability (i.e. his flat feet) had any influence on the respondents’ decision to commence the redundancy process.

[219]The claimant relies on a hypothetical comparator, bet adduces no evidence whatsoever from which we could conclude that in similar circumstances the respondents would not have commenced a redundancy process with respect to a person without his disability. There is no evidence Case Number: 2207401/2023 49 before us, from which we could find that, for example, the respondents had particular animosity towards people with flat feet or, for that matter, people with any other type of disability, nor any other kind of evidence from which we could permissibly draw an inference that the claimant’s flat feet in some way influenced the respondent’s decision to commence the redundancy process. The allegation makes no sense.

[220]In any event, we are satisfied that there was a genuine redundancy situation, which had been contemplated as far back as March 2022, arising from the implementation of technological tools, completion of the project to scan and dispose of the legacy files, and anticipated changes in the way the R1’s clients wished to interact with caseworkers, which meant that the requirements of R1’s business for employees to carry out work of a particular kind (i.e. of the kind the claimant was employed to carry out – that is of an office manager) had diminished and were expected to further diminish and possible cease altogether.

[221]That was the only reason why the respondents commenced the redundancy process. It had nothing to do whatsoever with the claimant’s disability, or his alleged protected acts, or him seeking to take shared parental leave.

[222]This means that the claimant’s complaint under s.47C(bb) – detriment for seeking shared parental leave fails completely and is dismissed.

[223]This also means that this allegation put as complaints of direct disability discrimination, harassment related to disability, and victimisation also fail and are dismissed. The only surviving allegations of detriments for the purposes of the claimant’s discrimination and whistleblowing complaints are those related to the requirement to come and work in the office. The requirement to come and work in the office

[224]These allegations relate to three separate dates/periods:a. On the 6 February 2022 Mr Ali requiring the Claimant to attend the office every day; Case Number: 2207401/2023 50

b. On the 5 August 2022 instructing the Claimant to return to work full time at the office;

c. Between 2 and 7 November 2022: i. telling the Claimant that unless he comes into work, he will be signed off sick; ii. stating that his role requires him to be in the office full time; iii. stating that claimant needs to urgently seek medical advice; iv. Joe Dinh stating that there are no reasonable adjustments that the Respondent can implement; and v. between February 2022 and the date of his dismissal, Respondents failed to consider and/or make reasonable adjustments in respect of his disabilities. For brevity, I shall refer to all of them collectively as “working from the office detriments".

[225]It is to be noted that although these detriments appear as whistleblowing detriments in the Stirrat’s LoI, the claimant’s F&BP do not include them as whistleblowing detriments. There is also nothing in his Grounds of Claim to suggest that these detriments are being pleaded as “whistleblowing detriments” under s.47B ERA. No application to amend was sought or granted. Therefore, as I have said earlier, these allegations fall outside the scope of the claim before this Tribunal. In any event, as will be seen later, in light of our findings and conclusions, these allegations would have failed on causation even if had been found to be within the scope of the claim.

[226]Before moving to consider these allegations by reference to each of the heads of discrimination complaint, I shall set out our factual findings in relation to those allegations applicable to all complaints.

[227]Firstly, they all are out of time. The claimant did not argue or present any cogent evidence to show that these allegations are an act extending over period, which can be linked to other alleged detriments extending into the primary limitation period, i.e. those occurring on or extending beyond 21 November 2022. The burden is on the claimant, and he has failed to discharge it. Case Number: 2207401/2023 51

[228]Furthermore, as was explained by the EAT in South Western Ambulance Service NHS Foundation Trust v King

2020 IRLR 168

, EAT, and again confirmed in Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust and ors EAT 0100/19, if any of the acts/omissions relied upon as forming part of a continuing act are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act. Although it was said in the context of the discrimination claims, we see no principled reason why the same should not apply with respect to whistleblowing detriment complaints too.

[229]As we have found, except for the claimant’s dismissal (with which I will deal later) any alleged acts and omissions occurring after 21 November 2022 were not acts of discrimination or whistleblowing detriments, the only way the claimant can bring these “working from the office detriments” within the primary limitation period would be if he could show that:(a) they formed part of “an on-going situation or a continuing state of affairs” with his dismissal (see Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

); and

(b) that his dismissal was an act of discrimination/victimisation and/or automatically unfair because it was for the reason of his protected disclosure. I will return to this issue when dealing with the dismissal issue. For now, suffices to say that the claimant has failed to present any cogent evidence or arguments to show that link.

[230]Finally, a failure to make a reasonable adjustment is generally discrimination by omission. Section 123(3) and (4) EqA provide that a failure to do something is to be treated as occurring when the person in question decided on it (i.e. not to do that something), or is deemed to have decided not to do that something (either by acting inconsistently with doing that something, or at the end of a period in which the person might reasonably have been expected to do that something – in this case, to make the adjustments). Therefore, with respect to the claimant’s allegation that between February 2022 and the date of his dismissal, Respondents failed to consider and/or make reasonable adjustments in respect of his disabilities, the limitation period had started to run in February 2022 and not when he was dismissed. Case Number: 2207401/2023 52

[231]The complaints in relation to the working from the office allegations, therefore, are all out of time, and the Tribunal does not have jurisdiction to consider them, unless it decides that it is just and equitable to extend time. And to the extent these are to be considered also as complaints of whistleblowing detriments – that it was not reasonably practicable for the claimant to present the claim earlier and he presented it within a reasonable period thereafter.

[232]Under s.48 ERA and s.123 EqA the primary limitation period is 3 months beginning with the date of the act complained of (subject to the appropriate extension for the ACAS early conciliation period). The claimant gave evidence that he was aware of the applicable time limits and retained a solicitor as early as him being notified of the possibility of him being made redundant. He, however, gave no evidence why it was not reasonably practicable for him to present his claim earlier, nor did he give any evidence as to the reason why he did not present his claim earlier. He did not say why it would be just and equitable to extend time with respect to these allegations as his complaints under the EqA, either.

[233]The onus of proving that presentation in time was not reasonably practicable rests with the claimant. “That imposes a duty upon him to show precisely why it was that he did not present his complaint” — Porter v Bandridge Ltd

1978 ICR 943

, CA.

[234]With respect to the just and equitable extension, in Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] EWCA Civ 640

and the EAT’s decision in Bahous v Pizza Express Restaurants Limited

UKEAT/0029/11/DA

it was held that the absence of an explanation for the delay does not prevent the Tribunal from exercising its discretion and extending the time limit, and the Tribunal is not obliged to infer that there was no acceptable reason for the delay (see para 25 in Abertawe). However, the reason or absence of a good reason for the delay is a relevant factor (see para 19 in Abertawe). This was also confirmed by the EAT in the recent case of in Jones v. The Secretary of State for Health and Social Care, 2024 EAT. Case Number: 2207401/2023 53

[235]In Thompson v Ark Schools [2019] I.C.R. 292, EAT, at [13] to [21], summarised the relevant principles on extending time under the just and equitable jurisdiction as follows:a. Time limits are exercised strictly;

b. The onus is on the claimant to persuade the tribunal to extend time;

c. The decision to extend time is case- and fact-sensitive;

d. The tribunal’s discretion is wide;

e. Prejudice to the respondent is always relevant;

f. The factors under s33(3) Limitation Act 1980 (such as the length of and reasons for the delay and the extent to which the Claimant acted promptly once he realised he may have a claim) may be helpful but are not a straitjacket for the tribunal.

[236]Having considered all the factors and the circumstances of this case, we find that with respect to the working from the office detriments it was reasonably practicable for the claimant to present his complaint of whistleblowing detriment earlier. We also find that it will not be just and equitable to extend time with respect to the working from the office detriments as discrimination complaints. We have no explanation from the claimant not only about the reason for the delay, but why he says it will be just and equitable to extend time. Whilst the respondents have dealt with them at this hearing, and therefore it may be argued (but it was not so argued by the claimant) that there is no prejudice to them, that will not the correct approach for us to adopt. Just because the prejudice has already been sustained, does not mean it should be discounted (see Guy Matthews v CGI IT UK Ltd

[2024] EAT 38

at [151]). The allegations are historic and poorly pleaded. Considering that all other allegations have failed, most of which at the very first hurdle, it would be prejudicial to the respondents if they were put to task of defending these multiple discrimination complaints by reference to the historic allegations spread over a period of nine months. In any event, we find there is little merit in any of these allegations.

[237]Therefore, our primary conclusion is that the Tribunal does not have jurisdiction to consider them. Case Number: 2207401/2023 54

[238]However, since we have heard the evidence and closing submissions on these allegations, we also proceeded to consider them on the merits. Direct disability discrimination

[239]For the same reasons as I have explained when dealing with the allegation of commencing the redundancy as a complaint of direct disability discrimination, we find that the claimant has failed to overcome the initial burden of proof to establish facts from which we could conclude that his disability (flat feet) had any influence on the respondents requiring him to come to the office.

[240]In any event, based on the evidence we heard from AA and JD we make the positive finding that the claimant’s disability in no sense whatsoever influenced their decisions to ask the claimant to come and work from the office and on other matters he complains about in that regard. Their instructions to the claimant were solely based on the business needs and the fact that the claimant’s role required him to be in the office to perform it properly. The claimant accepted in cross-examination that to perform such tasks as scanning and shredding he needed to be in the office. These tasks were his core duties as an office manager.

[241]Therefore, this complaint fails and is dismissed. Harassment and victimisation

[242]For the same reasons, this allegation fails as complaints of harassment, and victimisation. Meaning that the claimant has failed to establish a prima facie case.

[243]Furthermore, we do not accept that for the purposes of the harassment complaint it was reasonable for the claimant to perceive the conduct complained of as having the proscribed effect, i.e. as violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. These were reasonable management instructions for the claimant to attend to his primary work duties. The claimant in cross-examination accepted that these Case Number: 2207401/2023 55 tasks could not be done remotely and that he needed to be in the office to perform them.

[244]For the purposes of his victimisation complaint, we do not accept that any of the matters relied upon as protected acts before 3 November 2022 amount in law to protected acts, meaning that anything that happened before that date could not have been done because of a protected act.

[245]Therefore, these two complaints fail and are dismissed. Discrimination arising from disability

[246]Turning to the discrimination arising from disability complaint, we find that the matters the claimant relies on as “something arising in consequences of his disability” were not the reason for the treatment complained of (i.e., for “working from the office detriments”).

[247]Firstly, we observe that on the facts at the relevant time, his limited mobility, the requirement to work from home, and his limitations on physical work were the matters arising from his reluctance to come to the office due his fears of catching Covid and passing it to his vulnerable mother, due to his broken toe, and later due to his hernia, and not from his flat feet. Before Covid and before he broke his toe the claimant had had no problems attending the office and undertaking physical activities, albeit he needed to wear trainers with orthotics insoles. We heard and saw plenty of evidence on this issue, which we accept. The claimant did not seriously challenge any of those evidence given by the respondents’ witnesses.

[248]We, however, must accept, as we do, that EJ Norris found at [56] of her judgment that: “the Claimant cannot do at all or can only do with difficulty (i.e. pain free) without his orthotics include walking, cycling, going up and downstairs, standing to cook or perform work functions such as scanning and printing. These are all day-to-day activities because people do them on a regular or daily basis. The fact that the Claimant can walk around without his orthotics on (e.g. while in the sea or in someone else’s flat) does not affect the conclusion Case Number: 2207401/2023 56 that for the most part, he needs to wear them on a daily basis in order to be able to carry out very basic functions in mobility, to a greater extent than the majority of the population.”

[249]We cannot go behind that decision. Therefore, there is a conclusive finding that the claimant’s flat feet did cause him to have difficulties with moving around and undertaking physical activities. It follows that “limited mobility” and “limitations around physical work” are something arising in consequence of the claimant’s disability.

[250]We, however, do not accept that the same can be said about the other two alleged “something arising”, that is the requirement to work from home and an increased likelihood of disability related absence in respect of symptoms and/or treatment.

[251]With respect to the former, the claimant presented no cogent evidence to show that there was any causal link between his flat feet and what he called the requirement to work from home. As I have already said, before Covid the claimant had been happily attending the office. He continued to attend the office by night during the pandemic. Until he broke his toe, he was attending the office with no issues. It was his broken toe that caused him to require to work from home, and later, in November 2022, – his hernia.

[252]In other words, the requirement to work from home only arose in consequence of the claimant breaking his toe, and later in consequence of his hernia, not in consequence of his flat feet.

[253]The claimant said when cross-examining AA that he broke his toe because of his flat feet. We do not accept that. Firstly, it was not his evidence, but a statement he made when he was conducting AA’s cross-examination. It cannot be accepted as the claimant’s evidence.

[254]We accept that “something arising” could have a range of causal links. It is a question of fact to be assessed robustly in each case whether something can properly be said to arise in consequence of disability (see Pnaiser v NHS England and anor

[2016] IRLR 170

EAT. Case Number: 2207401/2023 57

[255]Therefore, in theory it can be argued that his flat feet caused the claimant to trip and break his toe, which in turned caused him to have to work from home, therefore through such two-step causative link, the requirement to work from home is something arising in consequence of his disability (flat feet).

[256]However, the claimant has not presented sufficient evidence to show that causal link between his flat feet and his broken toe. He did not present any medical evidence to show that he had propensity of tripping, or falling, or otherwise breaking his toes because of his flat feet, or generally that people with flat feet are more likely to trip, fall, or otherwise break their toes than people without flat feet.

[257]In short, we find that it was no more than an unfortunate accident (as the claimant described it himself), which could have befallen on anyone, whether or not they have flat feet.

[258]The claimant in his evidence also said that because of his broken toe he could not fit his foot into his trainers with orthotic insoles. However, it was still his broken toe that caused him the difficulty with moving around, and not his flat feet. The evidence before us was that the claimant was telling the respondents that he could not attend the office because of the broken toe and the resulting problem with putting weight on that foot. His GP notes say: “patient has a foot injury and currently unable to fully weight bear but is able to work from home.” (my underlining).

[259]There is no evidence before us to suggest that the claimant’s inability to come to the office was caused by him not being able to wear his trainers with orthotics insoles, and not his broken toe.

[260]It is not the case that an injury to his toe caused his flat feet condition to flare up or otherwise made it worse, which in turned meant that he could not come to the office. The injury was a separate and distinct cause of the consequent inability for the claimant to come to the office. To illustrate it more clearly, if, for example, the claimant’s foot injury was more severe and meant Case Number: 2207401/2023 58 that his foot had to be put in a cast, or he had to avoid putting any weight on it, or had to keep it in an elevated position, it would be unarguably the injury to his flat foot and not his flat foot as such that would be the operating cause for his inability to come to the office. The same cause – effect conclusion is the only sensible conclusion that can be sustained on the present facts.

[261]We also do not accept that the claimant has shown that “an increased likelihood of disability related absence in respect of symptoms and/or treatment” was something arising from his disability. The claimant had very few podiatrist appointments spread over a long period of time. His other absences were related to his broken toe, not his flat feet. In any event, he has not established the facts from which could reasonably infer that his absences or an increased likelihood of future absences to attend podiatric appointments in any way influenced the respondents’ actions he complains about as “working from office detriments”.

[262]It follows, that the only two “something arising” that we need to analyse further are “limited mobility” and “limitations around physical work”.

[263]In relation to both, we find that these were not the reason for the treatments complained of, in the sense them influencing the respondents “working from office detriments” in a substantial (that it more than trivial or minor) way. We accept JD’s and AA’s evidence why they needed the claimant to come to and work from the office. These actions were simply driven by the normal business requirements and nothing more. These were not unfavourable treatments because of the claimant’s limited mobility and limitations around physical work.

[264]For completeness, we reject the claimant's allegations that JD’s email of 2 November 2022, in which he told the claimant that if he could not come to the office due to his forthcoming hernia operation, he would have to take sick leave was unfavourable treatment because of the claimant’s limited mobility and limitations around physical work. This email must be read in its full context. The claimant does not say that he cannot come to the office because of his flat feet, but because of his forthcoming hernia operation (which EJ Norris found not Case Number: 2207401/2023 59 to be a disability). JD’s response is that because the claimant work required the claimant to be in the office, if he cannot come because of his hernia, his absence would be recorded as sick leave. This has nothing to do with the claimant’s flat feet or his limited mobility or limitations around physical work arising in consequence of his flat feet.

[265]Similarly, JD’s email of 4 November explains to the claimant that his role is office-based, but he would be allowed to work from home temporarily to accommodate his recovery from his hernia operation, which then was due to take place in December 2022, with 1 to 2 weeks recovery time. The email records that the claimant had confirmed that he would be happy to return to the office in a full-time capacity after he had recovered from the surgery. JD explained to the claimant in that email that if the claimant felt unable to return to work, he needed to seek urgent medical advice to help the respondents to support the claimant to return to his full duties. We find nothing untoward in that. It was not unfavourable treatment because of the claimant’s limited mobility or limitations around physical work arising in consequences of his flat feet. In any event, the claimant was allowed to work from home until further notice.

[266]In sum, we find that the respondents did not treat the claimant unfavourably because of something arising from his disability, namely his limited mobility and limitations around physical work.

[267]Accordingly, this complaint fails too and is dismissed. Indirect discrimination

[268]With one caveat, in the interest of proportionality, I will not spend time on analysing whether the alleged PCPs amount in law to valid PCPs, and whether the respondents had and applied them to the claimant. In the interest of time and to enable the Tribunal to deliver its extempore judgment at the end of the hearing, we proceeded to analyse this complaint on the basis that the alleged PCPs do amount in law to PCPs and the respondents had and applied them. Case Number: 2207401/2023 60 This, however, does not mean that the Tribunal is satisfied that the claimant has established these matters on the facts.

[269]The caveat I mentioned above is in relation to the alleged PCP of “Not sending employees for occupational health assessment”. We find that the respondents did not have that PCP. The claimant presented no cogent evidence to show that. He accepted that he never asked to be referred to occupational health for his flat feet. He said he was attending podiatrist for that purpose. His GP notes alerted him to the possibility to ask for an occupational health referral. Whether he read his GP notes or not is neither here nor there. It is for the claimant to prove that the respondents had the policy of not sending employees for occupational health assessment. He has failed to do that.

[270]However, even proceeding to consider his s.19 EqA complaint on the basis of the aforementioned assumptions, in the claimant’s favour (about the validity and existence of the alleged PCPs), this complaint must still fail. That is because the claimant presented no evidence to show that the alleged PCPs put people with whom the claimant shares the protected characteristic (i.e. his disability by reason of flat feet) at a particular disadvantage when compared with persons without flat feet.

[271]We also find that the claimant has failed to show that the alleged PCPs put him at such disadvantage by reason of his flat feet. As I have already said, the claimant’s reluctance, inability, or any difficulties in attending the office or carrying out physical work had nothing to do with his flat feet, but at various times, this was because of his concerns about catching Covid, his broken toe, and his hernia.

[272]Therefore, we find that the claimant has failed to establish a prima facie evidential case with respect to this complaint.

[273]In any event, we accept the respondents’ justification defence. They clearly had a legitimate aim of ensuring that their business was run properly, which required the office manager to be present in the office. In the circumstances, where the claimant had been happily attending the office before Case Number: 2207401/2023 61 the pandemic, and the only adjustment he ever asked for related to his disability (flat feet) was to be allowed to wear trainers in the office, which adjustment had been accommodated by the respondents, we find that it was a proportionate means to achieve the legitimate aim for the respondents to require that the claimant returned to work from the office after the end of the lockdown. The respondents made further accommodations to the claimant to allow him to recover from his broken toe and for his planned hernia operation, even though neither of these two conditions amounted in law to a disability.

[274]Accordingly, this complaint fails and is dismissed too. Failure to make reasonable adjustments

[275]I have already mentioned that in the interest of time we proceeded to analyse the claimant’s complaint assuming that the alleged PCPs amount in law to valid PCPs, and the respondents had and applied them to the claimant, with one caveat with respect to the occupational health referral.

[276]This complaint fails essentially for the same reason, as I have just explained when dealing with the indirect discrimination complaint, namely that the claimant has failed to show that the alleged PCPs have placed him at a substantial disadvantage by reason of his flat feet in comparison with persons who are not disabled.

[277]This complaint must also fail, because although we accept that the respondents had constructive knowledge of the claimant’s disability from May/July 2019, we find that the respondents did not know and could not have been reasonably expected to know that the application of the alleged PCPs was likely to place the claimant at a substantial disadvantage.

[278]We find that because we accept that the claimant disclosing his condition of flat feet to AA, telling AA that he needed to wear trainers in the office as a reasonable adjustment to accommodate his flat feet, and that he was suing his previous employer for discrimination because they did not allow him to wear trainers in the office, was sufficient information to put the respondents on notice that the claimant might have a disability and make further enquiries. Case Number: 2207401/2023 62

[279]The Equality and Human Rights Commission’s Statutory Code of Practice on Employment (“the Code”) at para 5.14 explains that “Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a “disabled person”.

[280]However, considering that:(i) the only adjustment requested by the claimant because of his flat feet was to be allowed to wear trainers in the office, which was accommodated,

(ii) the fact that the claimant never complained about him having difficulties with coming to the office, or engaging in any physical work or undertaking his other work duties, such as scanning, or recording his time, because of his flat feet, and

(iii) him was generally active and not showing any problems with mobility or other physical limitations (as attested by the respondents’ witnesses, whose evidence the claimant accepted without a challenge), the respondents had no proper basis to be on notice that the application of the alleged PCPs could put the claimant at a substantial disadvantage by reason of his disability (flat feet).

[281]Finally, and for the sake of completeness, we also find that even if the claimant had been able to establish a prima facie case of failure to make reasonable adjustments, it would have still failed, because we would have found that these adjustments would not have been reasonable adjustments for the respondents to make, for the same reasons as we have found that the respondents’ defence of justification with respect of s.19 EqA complaint was made out.

[282]This means that this complaint fails and is dismissed too. Whistleblowing detriment complaint Case Number: 2207401/2023 63 Did the claimant make a protected disclosure?

[283]Moving on to deal with the complaints under the ERA, starting with the whistleblowing detriment.

[284]There is a substantial mismatch between the pleaded whistleblowing detriments in the claimant’s F&BP and in the Stirrat’s LoI.

[285]I have already dealt with the allegations in the Stirrat’s LoI, all of which have failed either on facts or causation.

[286]For completeness, I will deal with the three alleged detriments in the F&BP. These are:a. In February 2021 Mr Ali told the Claimant that this makes working together difficult;

b. Between March 2021 until the date of his dismissal, Mr Ali micromanaged the Claimant;

c. The Respondent did not issue a reference in February 2023 and that Mr Ali played a part in this decision.

[287]However, before dealing with them, I shall first analyse whether the claimant’s email of 8 February 2021 contains a protected disclosure. The claimant relies on the following paragraph in that email: “On Wednesday night we had a conversation whereby you asked me to do something that I did not feel comfortable in doing. I did not end up doing what you wanted me to do that night and subsequently the following day you called to speak to me about this and accused me of playing games.”

[288]During his evidence I asked the claimant which part of that paragraph he says contained information, which on his cases tended to show that a criminal offence had been committed, was being committed or was likely to be committed, or that a person had failed, was failing or was likely to fail to comply with any legal obligation to which he is subject. Case Number: 2207401/2023 64

[289]The claimant said the first sentence: “On Wednesday night we had a conversation whereby you asked me to do something that I did not feel comfortable in doing.”

[290]Section 43A of the ERA states: “In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

[291]Section 43B of the ERA states: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) a criminal offence has been committed, is being committed or is likely to be committed (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

[292]In Williams v Brown

UKEAT/0044/19/OO

, EAT, HHJ Auerbach explained at [9] that, “9. It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”

[293]In Kilraine v London Borough of Wandsworth

[2018] IRLR 846

, CA, the Court of Appeal held that: “35 The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in paragraphs (a) to (f)]”. Grammatically, the word “information” has to be read with the qualifying phrase, “which tends to show [etc]” (as, for example, in the present case, information which tends to show “that a person has failed or is likely to fail to comply with any legal obligation to which he is subject”). In order for a statement Case Number: 2207401/2023 65 or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors’ letter in the Cavendish Munro case did not meet that standard. 36 Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

, para 8, this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.” (emphasis added)

[294]In Simpson v Cantor Fitzgerald Europe

[2020] ICR 236

, EAT, Choudhury J in the Employment Appeal Tribunal said at [69], “The Tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.” Tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation

[295]In Fincham v HM Prison Service

UKEAT/0991/01

, the Employment Appeal Tribunal said at [33], “there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employers(sic) is relying.”

[296]In Eiger Securities LLP v Korshunova

2017 ICR 561

, EAT, Slade J held at [46], “The identification of the obligation does not have to be detailed or precise but it must be more than a belief that certain actions are wrong. Actions may be considered wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation.” Case Number: 2207401/2023 66 Reasonable belief that the disclosure was in the public interest

[297]In Chesterton Global Ltd v Nurmohamed

[2017] IRLR 837

, the Court of Appeal provided guidance on the public interest test at [27]-[31]: “27 First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in Babula’s case

[2007] ICR 1026

(see para 8 above). The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(b) whether, if so, that belief was reasonable. 28 Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the “range of reasonable responses” approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to the “Wednesbury approach” (Associated Provincial Picture Houses Ltd v Wednesbury Corpn

[1948] 1 KB 223

) employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking - that is indeed often difficult to avoid - but only that that view is not as such determinative. 29 Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable. 30 Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para 17 above, the new sections 49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation - the phrase “in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it. 31 Finally by way of preliminary, although this appeal gives rise to a particular Case Number: 2207401/2023 67 question which I address below, I do not think there is much value in trying to provide any general gloss on the phrase “in the public interest”. Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression. Although Mr Reade in his skeleton argument referred to authority on the Reynolds defence (Reynolds v Times Newspapers Ltd

[2001] 2 AC 127

) in defamation and to the Charity Commission’s guidance on the meaning of the term “public benefits” in the Charities Act 2011, the contexts there are completely different. The relevant context here is the legislative history explained at paras 10—13 above. That clearly establishes that the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. This seems to have been essentially the approach taken by the tribunal at para 147 of its reasons.” (emphasis added)

[298]Now, with these principles in mind, looking at the sentence the claimant relies upon: “On Wednesday night we had a conversation whereby you asked me to do something that I did not feel comfortable in doing”, we find that it cannot amount to a protected disclosure because it does not disclose any information other than that there was a conversation on Wednesday night about something AA had asked the claimant to do, which the claimant did not feel comfortable doing.

[299]We find that in disclosing such information the claimant could not have reasonably believed that that information tended to show that a criminal offence had been committed, was being committed or was likely to be committed, or that a person had failed, was failing or was likely to fail to comply with any legal obligation to which he is subject. Taking at its highest, it was information that tended to show that the claimant was uncomfortable about doing something, and no more.

[300]Of course, it might be argued that because AA was privy to that telephone conversation on Wednesday, he would have understood what the claimant was referring to, but that, in our view, would still be insufficient because the requirement is that the disclosure itself must have sufficient factual content and some identification of the alleged crime, or the failure to comply with a legal obligation. As stated in Eiger Securities LLP v Korshunova “it must be more than a belief that certain actions are wrong”. Case Number: 2207401/2023 68

[301]We also, consider that the claimant has failed to prove that at the time of the disclosure he reasonably believed he was making it the public interest. His disclosure must be read in the context of his entire email, which was the claimant complaining about being asked to attend the office and about other work-related matters personal to him alone. Secondly, he does not even say in his witness statement that he believed that he was making that disclosure in the public interest.

[302]We accept that the claimant felt uncomfortable doing what he thought he had been asked to do by AA and JD, but that is a different question. He needs to show not that he was justified in not doing what he had been asked to do, but that when he wrote in that email to AA that he was uncomfortable doing that he believed that he was saying that in the public interest. We find that he has not shown that.

[303]However, even if are wrong on all of that, and that sentence does amount in law to a protected disclosure, his whistleblowing detriment claim still fails for the following reasons.

[304]I have already explained why it must fail by reference to the alleged detriments in the Stirrat’s LoI.

[305]With respect to the three alleged detriments, in the F&BP it fails too, because:a. Firstly, the alleged detriments

(a) “In February 2021 Mr Ali told the Claimant that this makes working together difficult”; is out of time. I have already explained our conclusions on the time point. In any event we do not find that AA told the claimant that it would be difficult for them to work together. In fact, they had made up, and their professional and personal relationship did not change (see paragraphs 80-84 above). The claimant received a substantial pay rise. AA and the claimant continued to socialise together. Ms Aslam evidence (at [11] of her witness statement), which the claimant accepted without a challenge, describes that the claimant felt that his relationship with AA (both as friends and colleagues) Case Number: 2207401/2023 69 was so good that he could even put a word to AA for Ms Aslam to get her a pay raise. That hardly shows “difficult working relationship”.

b. Detriment

(b) “Between March 2021 until the date of his dismissal, Mr Ali micromanaged the Claimant” is no more than the repetition of the alleged detriment of having to submit timesheets, which has already been dealt with and dismissed. If by “micromanaged” the claimant alleges something else, other than the requirement to complete timesheets, we find that the claimant has failed to show that AA micromanaged him in some other respect. Therefore, to that additional extent, this complaint fails on the facts;

c. Detriment

(c) “The Respondent did not issue a reference in February 2023 and that Mr Ali played a part in this decision” – I have already explained our conclusion on this detriment. No need to repeat them here. It fails on causation.

[306]It follows, that the claimant’s complaint for whistleblowing detriments under s.47B fails and is dismissed. Automatically Unfair dismissal under s.103A and s.99

[307]I shall deal with this complaint on both grounds together. As I have just explained, our primary finding is that the claimant did not make a protected disclosure. In any event, we are satisfied that the alleged protected disclosure was not the reason for his dismissal.

[308]We are also satisfied that the claimant seeking to take shared protected leave was not the reason for his dismissal. We accept the respondents’ evidence that they only learned about the claimant’s intention to take shared parental leave on 7 December 2022, and that was after they had decided that the claimant’s role was going to be made redundant.

[309]In any event, based on the evidence before us we make the positive finding that the sole reason for the claimant’s dismissal was redundancy. As I have already explained, we find that it was a genuine redundancy situation. We accept JD’s evidence that it was the sole reason why he decided to dismiss the Case Number: 2207401/2023 70 claimant. This is also amply supported by the contemporaneous documentary evidence. We reject the claimant's assertions that the documents were fabricated or otherwise tempered with. These are bare allegations without any evidential foundation.

[310]It follows that the claimant’s complaints for automatically unfair dismissal under s.103A and s.99 ERA fail and are dismissed. Discriminatory Dismissal

[311]Briefly returning to the complaints of disability discrimination, harassment and victimisation, we also say that we are satisfied that the claimant’s disability or something arising from it (restricted mobility and/or any limitations around physical work) in no sense whatsoever influenced the respondents’ decision to dismiss the claimant. It was not a discriminatory dismissal.

[312]As I have mentioned, when dealing with the time/jurisdiction point, the only way the claimant’s remaining allegations of discrimination could be brought in time if these could be shown to be a continuing act with in-time discriminatory treatment. The only such alleged in-time discriminatory treatment was his dismissal. Given our finding that the dismissal was not discriminatory, it follows that the out of time complaints cannot be brought within the limitation period (as was explained earlier in the judgment). I have already explained why we do not find that it is just and equitable to extend time. Ordinary Unfair Dismissal

[313]Finally, dealing the claimant’s ordinary unfair dismissal complaint. As I have just said, we are satisfied that it was a genuine redundancy situation and the sole reason for the claimant’s dismissal was redundancy.

[314]The remaining question is whether in all the circumstances (including the size and administrative resources of the employer's undertaking) R1 acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant. This question must be determined in accordance with equity and the substantial merits of the case (s.98(1) ERA). Case Number: 2207401/2023 71

[315]In Taylor v OCS Group Ltd

2006 ICR 1602

, CA, the Court of Appeal said “… it is trite law that S.98(4) requires the employment tribunal to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the employment tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

[316]Procedural fairness is an integral part of the reasonableness test is section 98(4) of ERA. In redundancy dismissal “the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by deployment within his own organisation” (Polkey v AE Dayton Services Ltd

1988 ICR 142

, HL).

[317]In deciding whether the adopted procedure was fair or unfair the tribunal must not fall into the error of substitution. The question is not whether the tribunal or another employer would have adopted a different and, what the tribunal might consider a fairer procedure, but whether the procedure adopted by the respondent “lay within the range of conduct which a reasonable employer could have adopted” (Williams v Compair Maxam Ltd

[1982] ICR 156

[318]In cross-examination, the claimant conceded most of the procedure points on the Stirrat’s LoI, he was alleging made the procedure unfair: R1 failed to sufficiently warn and consult with the claimant, R1 failed to genuinely consider and/or search for and/or offer suitable alternative employment, R1 did not consider ‘bumping’.

[319]Having duly considered all the evidence before us, we find that the procedure was fair and well within the range of reasonable responses, i.e. a procedure that a reasonable employer could have adopted. Case Number: 2207401/2023 72

[320]In fact, we find that the respondents were very flexible and accommodating and tried their best to assist the claimant through the process by:a. re-arranging the consultation meetings at the claimant’s requests;

b. giving the claimant ample time to prepare for the consultation meetings;

c. duly considering all the issues the claimant had been raising as part of the consultation process;

d. essentially creating another post for the claimant as a suitable alternative role. The fact that the claimant did not consider it to be suitable for him due to the drop in salary, the part-time status, and the requirement to work from the office, does not mean that the respondents were obliged to create some other role for the claimant, which he would have found more suitable;

e. allowing the claimant to appeal his dismissal;

f. accommodating the claimant’s request for AA, JD and Wendy Frazer to be removed from the appeal process;

g. appointing an independent external HR specialist to consider the claimant’s appeal;

h. accommodating the claimant’s request to have his appeal decided on the papers;

i. duly considering the claimant’s appeal and promptly giving him a fully reasoned decision.

[321]In short, we find the procedure adopted by the respondent was fair. Our conclusion on this complaint is that in the circumstances the decision to dismiss the claimant was fair. It follows that his remaining complaint for “ordinary” unfair dismissal fails and is dismissed.

[322]This means that all the complaints in the claimant’s claim fail and are dismissed. Case Number: 2207401/2023 73

[323]However, before concluding our judgment, I would like to express our regret that the claimant, despite repeated encouragements and warnings by the Tribunal to review his claim with a view of narrowing it down, persisted on using, what Ms Lanigan described in her closing submissions as, the “kitchen sink approach”.

[324]Many litigants in person may be excused for thinking that the more allegations and complaints they pile up, the better their chances of winning, without realising that with each such allegation and complaint, they not only create a burden on the other side to respond to those, but at the same time, they create an even higher hurdle for themselves to firstly establish all such allegations on the facts, and secondly to meet the initial burden of proof, as a matter of causation.

[325]However, the claimant has had the benefit of solicitors acting for him at various stages of these proceedings, notably at the time of submitting his claim, and at the time of preparing his list of issues. The claimant would have been the person giving instructions to his solicitors as to what allegations and complaints he wanted to pursue against the respondents and how he wanted them to be framed and advanced. Therefore, the claimant saying that he does not understand his own list of issues, because it is a “technical document” sounds very surprising indeed.

[326]On the second day of the hearing, the Tribunal gave a very clear indication to the claimant that based on our initial review of the claim and the evidence the claimant was advancing in support of his complaints in the claim, many of the complaints and allegations appeared to us as having no reasonable prospect of success. The Tribunal encouraged the claimant to review his claim and the Stirrat’s LoI with “a critical eye”. The Tribunal also spent considerable time explaining to the claimant different elements of each of the complaints in his claim, and what he would need to show as a matter of evidence and as a matter of causation to succeed on them.

[327]On the third day of the hearing, before hearing the claimant’s evidence, I asked the claimant whether having heard the Tribunal’s decision on the Case Number: 2207401/2023 74 respondents’ strike out application and the indications given by the Tribunal as to the apparent evidential and causative issues the claimant would have in proving his case with respect to some of his complaints, and having reflected on all of that, he still wished to pursue all his complaints and allegations in the claim, as pleaded and as formulated in the Stirrat’s LoI. The claimant said yes, he did wish to pursue all his complaints and allegations. Yet, as can be seen from our findings and conclusions, most of his complaints and allegations have failed without getting off the ground.

[328]At the end of the hearing, after all the evidence had been heard, I again invited the claimant to review his case and consider whether he wished to withdraw some of the complaints and allegations, given how the evidence had played out during the hearing.

[329]As became evident from the claimant’s closing submissions, he did not heed to my observations and warnings, but in some respects double downed on some of his largely baseless allegations. Whilst we accept that the claimant felt strongly that he had been wronged by the respondents, it is still surprising and regrettable that he chose to adopt this highly combative and unhelpful stance in seeking justice.

[330]That concludes our judgment.