Dr M Freedman v United Synagogue and Others: 2210360/2023

EMPLOYMENT TRIBUNALS

Case No 2210360/2023

Between

Dr M FreedmanClaimant

United Synagogue and OthersRespondent

Before

Employment Judge Keogh, Mr D Schofield, Mr F Benson

In person for claimant

Date 2 May 2025

JUDGMENT

[1]The claimant’s claims of unfair dismissal (section 94 Employment Rights Act 1996), wrongful dismissal, discrimination arising from disability (section 15 Equality Act 2010) and failure to make reasonable adjustments (section 20-21 Equality Act 2010) are unsuccessful and are dismissed.

[2]The claimant shall pay the respondents’ costs in the sum of £20,000 by 30 May 2025.

REASONS

[1]This case is about the claimant’s dismissal from his employment as a Community Rabbi with the first respondent following an incident [REDACTED], and a separate matter of the publication of videos on YouTube. The claimant is diagnosed with Autism Spectrum Disorder (‘ASD’) and contends that his condition, together with his mental health after the incident, affected his actions.

[2]The claimant brings complaints of unfair dismissal and wrongful dismissal against the first respondent, and discrimination arising from disability and failure to make reasonable adjustments against all respondents.

The hearing

[3]The hearing in this matter was due to take place from 18 June 2024 for seven days. Due to a listing error the Tribunal had some difficulty convening in person on 19 June 2024 and was unable to sit on 20 June 2024. The timetable agreed by the parties prior to the hearing required four days of evidence to be given and allowed only one day for deliberations. Although the chronology of the claim is fairly limited a number of complex legal issues arise, for which the Tribunal considered two days of deliberation would be required. More than half of the first day was spent dealing with applications and housekeeping matters. In the circumstances the Tribunal agreed to convene on 19 June 2024 in Chambers for a reading day, and to sit additionally on 27 and 28 June 2024 to deliberate. Although it was hoped it might be possible to deliver oral judgment on 28 June 2024 the Tribunal concluded during its deliberations that this was not practicable and that a reserved judgment should be handed down, taking into account the submissions made by the parties.

[4]We received a main bundle of documents, a supplemental bundle, a confidential bundle and additional documents ordered to be added during the course of the hearing. We received witness statements for the claimant from the claimant himself, his brother Mr Richard Freedman and [REDACTED], and from the respondents, from the two individual respondents, and from Mrs Vickie Wiltshire. We heard oral evidence from all witnesses. We received written opening submissions and lengthy closing submissions from both parties. Due to time constraints oral submissions were brief, however the parties were given an opportunity to provide a reply to the exchanged closing submissions and oral submissions by 11am on the first day of deliberations, and both parties did so. We considered all the written and oral evidence and the documentary evidence in the bundles to which we were referred and the submissions made to us. We also reviewed the Equal Treatment Bench Book in relation to autism and Judaism.

[5]If we do not mention a particular fact or dispute in this judgment, it does not mean we have not taken it into account, only that it is not material to our conclusions. All our findings of fact are made on the balance of probabilities. Our decision was unanimous.

[6]At the outset of the hearing a number of applications were dealt with:(i) The claimant sought a reversal of the usual running order so that the respondent would give evidence first, because the claim related to the claimant’s dismissal. This was opposed on the basis that the claimant had the burden of proof in relation to the discrimination claims, including the issue of disability. We concluded that although the claim surrounded a dismissal, the issues to determine were predominantly to do with alleged discrimination, for which the primary burden fell on the claimant. In the circumstances it was the Tribunal’s preference to hear from the claimant first, subject to witness availability as a result of the amended timetable. The parties were able to prepare an agreed timetable following this which allowed for the claimant’s evidence and respondents’ evidence to be given taking into account the availability of the witnesses, including fixing a time for [REDACTED] arrangements to appear in person.

(ii) The claimant sought for three articles in the public domain relating to the second respondent to be added to the bundle. This was opposed on the basis that the articles were irrelevant. The Tribunal was not entirely clear as to the relevance of the articles, and was mindful that there was potential prejudice to the respondent in seeing material which may be out of context. However, if the claimant considered them to be relevant to his case and wished to cross examine the second respondent on the point, there could be prejudice to the claimant if we did not permit that evidence to be adduced. The Tribunal was satisfied any explanation as to the context could be dealt with by the second respondent himself in examination in chief if necessary, and both parties could make submissions on that and as to the weight to attach to the material. In the circumstances we ordered that the articles should be added to the additional material bundle and paginated accordingly. In the event, the articles were never in fact referred to and the Tribunal did not consider them.

(iii) The respondent applied for disclosure by the claimant of the disciplinary and appeal outcome letters following his dismissal by his other employer. It was not in dispute that the claimant was dismissed in relation to the same matters as the respondents considered. This was opposed on the basis that there was an ongoing unfair dismissal claim in respect of that matter. We took into account what the claimant said about the context of these documents and that, importantly, there is an ongoing unfair dismissal claim in respect of the other dismissal. In those circumstances the fact of the dismissal in itself was unlikely to assist us. However it was considered that there may be material in those documents relevant to the factual findings we were being asked to make about what actually occurred, for example there could be references to admissions made by the claimant. This was not known without seeing the documents. To avoid having irrelevant material before us, in the first instance it was ordered that the claimant should disclose the documents to the respondents, then it would be for the respondents to make a further application if it was considered there was anything relevant to the factual findings we needed to make as opposed to the simple fact that the other employer had dismissed the claimant. The claimant was reminded of his disclosure obligations in relation to any other relevant material which might be contained in documents pertaining to that disciplinary process. Further material was in due course requested and voluntarily disclosed and added to the bundle.

(iv) The respondent sought further disclosure of Whatsapp messages between the claimant and [REDACTED] which had been selectively included in the bundle by the claimant. Full disclosure was ordered to be provided to the respondent, and a further selection was added to the bundle.

(v) The respondent sought disclosure of unredacted medical records. The Tribunal was assured by claimant’s Counsel that the redactions made by the claimant had been reviewed by the claimant’s solicitors and she had herself reviewed the medical records. She stated that there was categorically nothing in the redacted parts relating to the relationship between the claimant and [REDACTED], the events in dispute, his mental health, [REDACTED] or anything to do with the respondent. The respondent remained concerned. The claimant eventually agreed that the respondent’s Counsel only could review the records, but not the respondent’s solicitor (for which no good reason was given) or the respondent. Counsel having reviewed the records, a number of items were agreed to be unredacted. Counsel for the respondent took exception to the previous suggestion that there was nothing in the redacted parts [REDACTED], events or mental health, but did not request the Tribunal to consider any further application.

(vi) An application was made by the claimant for a third-party disclosure order in respect of unredacted copies of the minutes of Local Authority Designated Officer (‘LADO’) meetings for 1, 22 and 28 July 2022. Westminster City Council did not object to disclosure of redacted minutes but objected to the disclosure of unredacted minutes, on the basis that they contained sensitive and confidential information pertaining to [REDACTED] who might be put at risk of further and significant emotional harm should unredacted minutes be disclosed to the claimant. The Tribunal determined that there was potential relevance to the documents given the claimant’s argument that pressure was placed on the respondent to dismiss by the LADO. However, that had to be balanced against the potential harm [REDACTED], which outweighed the prejudice to the claimant in not having potentially relevant material. In the circumstances a thirdparty disclosure order was made in respect of redacted minutes only.

[7]Permission had been given to the claimant to obtain an expert report from a suitably qualified psychologist or medical practitioner to consider the effects of the claimant’s disability and to provide an opinion on any link between the matter which were pleaded as ‘arising from’ the claimant’s disability and the claimant’s ASD. The respondent did not wish to obtain its own medical report. The claimant duly obtained a report from Dr Conning. During the course of the hearing the Tribunal enquired about the documents which had been sent to Dr Conning, as it was not clear what she had been provided with. It transpired that the respondent had enquired what the documents were that were listed in her report, but the claimant had failed to provide that information. Moreover, the claimant had failed to disclose to the respondent all the documents which had been sent to Dr Conning. The claimant had also refused to provide a copy of the letter of instruction which the claimant had written himself with ‘guidance’ from his legal representatives. A copy of the letter of instruction and an attachment were provided by the claimant’s representatives, and the claimant was ordered to produce a copy of the document not disclosed.

[8]The Tribunal observes that considerable time was taken up during the course of the hearing dealing with matters which ought to have been addressed cooperatively between the parties well before the hearing date, in particular as a result of a selective approach taken by the claimant to disclosure.

[9]Reasonable adjustments were made for the claimant as requested, namely extra breaks, extra noise being kept to a minimum, and questions being asked slowly in normal tone and non-threatening manner, using clear, concrete communication. Breaks were taken approximately every hour. The claimant became very emotional at times during his cross examination and did require some additional breaks, which were taken as necessary. The claimant did not indicate at any point that he did not understand the questions put to him.

The Issues

[10]The List of Issues was agreed between the parties and a copy provided to the Tribunal at the hearing. The hearing was listed to determine liability only, however the parties agreed that discrete remedy issues namely reductions in respect of Polkey, contributory fault and/or breaches of the ACAS Code should also be considered at the same time if the claims were successful. The issues before the Tribunal to determine were therefore as follows:

The Issues

[1]This is a claim for unfair dismissal, wrongful dismissal and disability discrimination brought by a community rabbi. C was summarily dismissed on 30 January 2023 for gross misconduct by R1 for:(i) transgressing appropriate physical boundaries [REDACTED] (the “Incident”); and

(ii) producing and uploading violent and sadistic videos to YouTube (the “Videos”). Unfair dismissal (R1 only)

[2]What was the reason or principal reason for C’s dismissal within the meaning of s98 Employment Rights Act 1996 (“ERA”) and, in particular, was it misconduct? R’s position is that C was dismissed for misconduct in relation to the Incident and/or the Videos.

[3]Was the dismissal fair or unfair within the meaning of s 98(4) ERA, i.e was it within the range of reasonable responses and did R act reasonably in treating this as a sufficient reason for dismissal in all of the circumstances. In particular, if the reason was conduct, did R1 reach a reasonable belief following a reasonable investigation and having conducted a reasonable procedure that C was guilty of misconduct and was the decision to dismiss within the range of reasonable responses open to the Respondent?

[4]C alleges that the dismissal was unfair alleging that:a. R1’s decision to dismiss was predetermined (ET1, para 22);

b. R1 did not carry out sufficient investigation into the allegations against C, the investigation was flawed and the investigation was not “evenhanded” (ET1, paras 23, 24).

c. R1 failed to take account of the C’s ill health (ET, para 24);

d. R1 did not take into account his service record and/or the seriousness of the allegations (ET1, para 23);

e. Dismissal by R1 was too severe a sanction and C did not commit an act of gross misconduct on the basis that there was no deliberate wrongdoing or gross negligence (ET1, second para 23);

f. C did not have reasonable grounds to assert that C has brought or potentially will bring R1 into disrepute (ET1, para 27).

g. R1 did not follow its own disciplinary policy (ET1, para 29) or the ACAS Code of Practice (ET1, para 28). Wrongful dismissal (R1 only)

[5]Did C’s conduct in relation to the Incident and/or the Videos amount to a breach of his employment contract, as follows:a. breach of clause 8.2 of the written terms of the employment contract of 31 July 2013 (the “Contract”) that he “use [his] best endeavours to promote the best interests and reputation of the United Synagogue and [the] Synagogue and not do anything which is harmful to them”;

b. “serious misconduct” within the meaning of clause 14.1 of the Contract;

c. behaviour inconsistent with his standing as a Rabbi of R1 within the meaning of clause 14.1 of the Contract;

d. behaviour in breach of the obligation for a Rabbi to act within the limits set by the Halacha (Jewish Law) within the meaning of Appendix 1 of the Contract; and/or

e. gross misconduct which constituted repudiation?

[6]Was R entitled to dismiss C summarily:a. pursuant to clause 14.1 of the Contract; and/or

b. by accepting his repudiation as terminating the Contract? Disability Discrimination

[7]Is C a disabled person within the meaning of s 6 of the Equality Act 2010 (“EA 2010”) by virtue of ASD?

[8]If the answer to para 8 above is “yes”, did the relevant R know or could it reasonably have been expected to know that this was the case at the relevant time? Disability arising from discrimination

[9]Did C’s dismissal constitute unfavourable treatment by R1 and/or R2 and/or R3 (by virtue of s 110 EA 2010) because of something arising in consequence of ASD within the meaning of s 15 of EA 2010? It is C’s case that the something arising in consequence of his ASD is that he had difficulties recognising social boundaries such that he did not realise that his interaction [REDACTED] was inappropriate or that the Videos might be viewed by a wider audience than his older children.

[10]If the answer to paragraph 9 is “yes”, was the dismissal a proportionate means of achieving a legitimate aim? Rs’ position is that C’s dismissal was justified as his conduct in relation to the Incident and the Videos was gross misconduct which could not be excused by ASD, his behaviour was incompatible with his role, alternatives were considered and would not suffice, appropriate regard was had to C’s mental health, and/or the DBS’s clarification was expressly considered. Reasonable adjustments

[11]Was there a failure to make reasonable adjustments within the meaning of s 21 of EA 2010 as follows:a. C alleges that R1, R2 and/or R3 had a PCP of failing to get and review medical advice before taking a decision to dismiss, which put C at a substantial disadvantage in comparison with persons who are not disabled because his conduct would have been explained by that further medical advice about his ASD and that it would have been a reasonable adjustment to get and review the medical advice before taking any decision to dismiss. The following issues therefore arise:

(i) could “getting medical advice…and then reviewing this” constitute a reasonable adjustment in law?

(ii) If so, did the alleged PCP put C at the alleged substantial disadvantage in comparison with those who are not disabled?

(iii) If so, would the alleged adjustment have been a step which R1, R2 and/or R3 should reasonably have taken to avoid that alleged disadvantage?

b. C alleges that R1 and R2 had a PCP of conducting disciplinary hearings by addressing C in an adversarial manner, which put C at a substantial disadvantage in comparison with persons who are not disabled as he was less likely to be able to communicate effectively in such circumstances and that it would have been a reasonable adjustment to change that approach. The following issues therefore arise: (i) Did R1 and R2 conduct hearing in this way? (ii) If so, did it constitute a PCP? (iii) If so, did the alleged PCP put C at the alleged substantial disadvantage in comparison with those who are not disabled?

(iv) If so, would the alleged adjustment have been a step which R1 and R2 should reasonably have taken to avoid that alleged disadvantage?

c. C alleges that R1 had the PCP of its management not having weekly contact with C whilst he was suspended which put C at a substantial disadvantage in comparison with persons who are not disabled as he would not have considered self-harm and it would have been a reasonable adjustment to increase contact/supervision for C whilst he was suspended. The following issues therefore arise: (i) Was there such a PCP? (ii) If so, did the alleged PCP put C at the alleged substantial disadvantage in comparison with those who are not disabled? (iii) If so, would the alleged adjustment have been a step which R1 should reasonably have taken to avoid that alleged disadvantage?

d. In relation to paragraph 11c, was it reasonable for R1 to take those steps in addition to the unlimited access to a psychotherapist and if so, when? Did R1 fail to take those steps? Jurisdiction – time

[12]If and to the extent that any of the alleged acts of discrimination are out of time:a. Was there a continuing act within the meaning of s 123(3)(a) of EA 2010?

b. Would it be just and equitable to extend time?

Remedies

[13]If any of the claims succeed, is the Claimant entitled to compensation and/or injury to feelings for discrimination, to a basic and/or compensatory award for unfair dismissal and/or damages for breach of contract having regard to matters including:a. Would the Claimant have been fairly dismissed at the same time or shortly thereafter in any event?

b. Should any compensation be reduced to nil for contributory fault and/or on just and equitable grounds?

c. Was there any failure to apply the ACAS Code of Practice and/or should compensation be increased on that basis? The contractual wrongful dismissal claim is capped at £25,000.” Findings of fact The parties 11. The first respondent is a charitable institution, for which its Trustees have overall responsibility. It oversees a number of synagogues. 12. The claimant commenced employment with the First Respondent on 1 April 2009, and became Rabbi of New West End Synagogue (‘the Synagogue’) on 1 March 2015. 13. The second respondent is a retired Circuit Judge and a former Trustee of the first respondent, and heard the claimant’s disciplinary hearing. The third respondent is a member of the first respondent and has held a number of voluntary roles with the first respondent, including Chair of the Youth Education committee, Warden (which is an elected role) and Trustee. He heard the claimant’s disciplinary appeal. The claimant’s responsibilities as Rabbi

Findings of fact

[14]The terms of the claimant’s employment are set out in a contract dated 31 July 2014 and include the following: “8.2 During your employment under this contract you shall:• …

• carry out your duties with efficiency, loyalty and fidelity and use your best endeavours to promote the best interests and reputation of the United Synagogue and New West End United Synagogue and not do anything which is harmful to them. … 14.1 Your appointment may be terminated by the United Synagogue without notice if in the opinion of the United Synagogue you:

• are guilty of a serious breach of any of the terms of this Agreement; or …

• are guilty of serious misconduct, neglect of duty or breach of duty in connection with your Office or affecting the United Synagogue; or

• behave in a manner which, because of its nature, circumstances or repetition, is inconsistent with your standing as a Rabbi/Minister of the United Synagogue.”

[15]Appendix 1 of the Contract provides under the heading ‘Overview of role’: “As the Rabbi of the Community you will within the limits set by the Halacha, as interpreted by the Chief Rabbi as the Ecclesiastical Authority of the United Synagogue, act as the authority on religious issues for the community abiding by and upholding the constitution, tradition and usages of the United Synagogue. You are expected to actively and enthusiastically promote and encourage membership of the Community and to represent the Community to its members in a pastoral capacity, attending to their and their family’s religious, Jewish educational, spiritual and emotional needs. This includes playing an active role in tending to the welfare needs of the sick, poor and otherwise disadvantaged in the Community. Whilst you will play a prominent and visible role in the Community’s Hebrew classes, it is expected that you will also take an active and leading role in other social, cultural, educational and welfare groups within the Community, formulating and delivering programmes of educational activity for families and for the general adult membership of the Community, designed to broaden and deepen their knowledge and commitment to a wide spectrum of Jewish knowledge, understanding and activity. In addition to preparing and teaching bat and bar mitzvah children of members of the New West End community. Equally, by conspicuous leadership, open dialogue and personal involvement, you will assist, encourage, strengthen and support teenage youth of whatever level of commitment to develop a true understanding of traditional Judaism and to identify with the Anglo-Jewish community. … Your accountability in relation to the above responsibilities will in all religious matters be to the Chief Rabbi, and in respect of all other affairs of the Community directly to your line Manager who will normally be acting in conjunction with local committees depending on the circumstances.”

[16]The claimant also had a safeguarding role. The ‘Best Practice Guidelines for Rabbis & Rebbetzins” dated 1 February 2018 provided: “For any observant Jew, especially those in a clerical function, scrupulous adherence to the laws of ‘Yichud’ is an essential protection. All clergy should ensure they are familiar with the laws of Yichud. These provide a Jewish framework and contribute towards protecting both congregants and clergy themselves, although they do not form the entire basis for protection in either case, for example in respect of meeting with minors and vulnerable adults of the same sex. … Even when halachically permitted, such as between congregant and clergy of the same gender, physical contact of any sort is laden with meaning and may be misconstrued, especially by those in vulnerable situations. As such, extreme caution is advised when instigating or responding to physical contact…”

[17][REDACTED]

[18]In respect of social media, the Guidelines provided: “Clergy should recognise the importance of cautious use of social media, messaging and email, especially when engaging with congregants or about issues of public interest. Particular thought should be given to the nature, medium and timing of any communication and in the event of doubt, peer review is recommended. Clergy should also be careful to avoid any emoji or abbreviation, which might be misunderstood or misconstrued as overly familiar.”

[19][REDACTED]

[20]‘Halacha’ means Jewish law, which comprises detailed laws and boundaries which govern both professional and personal life. Of relevance in this case are:(i) ‘Shomer negiya’ which is the rule that, save for exceptions for particular relationships and situations, those of the opposite sex cannot touch each other at all. [REDACTED]

(ii) ‘Yichud’ which is the Jewish law prohibiting those of the opposite sex from being secluded in a private area.

[21]It is not in dispute that the Rabbinic role is a position of great trust, authority and influence.

[22]It is not dispute that in addition the claimant undertook wider duties for the first respondent and had separate employment with another employer. Historical background

[23][REDACTED]

[24][REDACTED] the claimant sought advice from Dayan Gelley, the Head of the Beth Din (the highest court of Jewish law in the United Kingdom), in relation to the application of shomer negiya. [REDACTED]

[25][REDACTED]

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[28][REDACTED] 16 May 2022 – The Incident

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[56]The incident was not reported to anyone on 16 May 2022. Events after 16 May 2022

[57]The incident was not reported to anyone on 17 May 2022.

[58][REDACTED]

[59][REDACTED]

[60]The claimant was arrested by Police on 18 May 2022.

[61]The claimant was released on bail 19 May 2022, [REDACTED]

[62]On 20 May 2022 the claimant sent an email to Mr Wilson and Mr Frei as follows: “I have to be very careful what I say, but you will be informed shortly that I was arrested on Wednesday evening, taken into custody and am currently on Police bail pending an investigation. I am due to report to Charing Cross Police Station on the 14th of June. My phone has been seized by the police. There are no words to express the regret that I feel for what I have done and the catastrophic consequences this will have for everyone and everything that is dear to me. I can't say more now.”

[63]A call took place between the claimant, Mr Wilson and Mr Frei on the morning of 20 May 2022. Relevant parts of the record of this call in relation to the incident itself are referred to above. We found the following further points to be relevant:

[64]Mr Wilson explained that because of the police investigation the claimant was being suspended and a formal letter would follow.

[65]A suspension letter was sent to the claimant dated 20 May 2022. The claimant was suspended on full pay.

[66]In the covering email to the suspension letter Mrs Wiltshire (under her previous unmarried name) wrote: “You will see from the letter that I reference some sessions with a psychotherapist, however if there is any other support you would find beneficial, please do let me know.”

[67]The suspension letter itself read: “The suspension will be effective immediately and will continue until such time as the police complete their investigations and relevant action is taken, if any. Once the police have concluded their investigation, it may be necessary for the organisation to commence an internal investigation, therefore your suspension may be reviewed at that time. Please be advised that this action is precautionary to ensure safeguarding measures are taken and to allow a fair and impartial investigation to take place. It will not prejudge the outcome of any subsequent action. Disciplinary action will not necessarily be the result. The United Synagogue does not consider suspension a presumption of guilt nor disciplinary action, and during this time your pay and benefits will remain unaltered in accordance with your terms and conditions of employment. If at the conclusion of any investigation it has been determined that an act or acts of misconduct have occurred then you may be required to attend a disciplinary meeting. Notice of the meeting will be sent to you at the appropriate time. If the allegations are not substantiated then you will be reinstated and returned to work as quickly as possible. … I would like to remind you that whilst you have been suspended from work, you remain an employee of the United Synagogue and as a result, you are expected to conduct yourself in a professional manner in accordance with the organisations rules. I appreciate this must be an incredibly difficult time for you. Therefore should you require any 121 sessions with a United Synagogue approved psychotherapist, the organisation is willing to cover the cost of up to 6 sessions. To be reviewed on an ongoing basis.”

[68]We find, as set out in the claimant’s witness statement, that in the initial months following the incident he researched any possible links between his autism and what had happened [REDACTED], reading articles, books and research papers.

[69]The first LADO ‘ASV’ Committee meeting was held on 1 June 2022. The LADO for this purpose was Ms Daniel, Westminster City Council. ASV is short for ‘Allegations against staff or volunteer’. The committee was comprised of the LADO, police officers, social workers and representatives of both employers. The purpose of the meeting was to discuss the allegations, safeguarding plans [REDACTED] and support for the claimant. Mr Frei attended the meeting on behalf of the first respondent along with the first respondent’s Head of Safeguarding, Ms Claudia Kitsberg. Mrs Wiltshire was due to attend but gave her apologies. She attended all subsequent meetings.

[70]Under the heading ‘Details of Referred Incident / Allegation” the following details were included:

[71][REDACTED]

[72]At the conclusion of the record of the meeting it is set out: “The following definitions should be used when determining the outcome of allegation investigations [REDACTED]:a. Substantiated: There is sufficient identifiable evidence to prove the allegation;

b. False: there is sufficient evidence to disprove the allegation;

c. Malicious: there is clear evidence to prove there has been a deliberate act to deceive and the allegation is entirely false;

d. Unsubstantiated: this is not the same as a false allegation. The term, therefore, does not imply guilt or innocence.

e. Unfounded: there is no evidence that supports the allegation; it might indicate the person making the allegation misinterpreted the incident or was mistaken about what they saw. Alternatively, they may not have been aware of all the circumstances.”

[73][REDACTED]

[74]Towards the end of the month the claimant had a significant downturn in his mental health. On 1 July 2022 one of the social workers from Westminster City Council referred him to the Single Point of Access crisis team.

[75]A second LADO meeting was held on 1 July 2022. Attendees are not recorded in the minutes. A third LADO meeting was held on 12 July 2022. Mr Frei and Mrs Wiltshire attended this meeting.

[76]Under the heading ‘Future Employment Action’ it is recorded: “Ms Wiltshire asked Ms Daniel if the Police were to decide to take no further action against Moshe Freedman, based on what we know today, what would the United Synagogue’s position be in terms of Moshe Freedman returning to his role. Ms Daniel said that it would depend on the reason why the Police have taken no further action. [REDACTED] Ms Wiltshire noted that the Jewish Community are now calling for action to be taken on a weekly basis whether that be Moshe Freedman returns to his role or he is replaced. [REDACTED] Once the Police’s Investigation has concluded, she would advise the United Synagogue to complete their own Internal Investigation where they would put the allegations to [the claimant] as he has a right to reply. At that stage, the United Synagogue would then need to decide whether it is appropriate, [REDACTED] for Moshe Freedman to continue in his current role. At this stage, she feels that it would be prudent for the United Synagogue to think about a possible replacement for [the claimant] given that he has made a partial admission. Ms Stewart-Darling noted that [the claimant] is also currently mentally unwell and this would have an impact on his ability to carry out his role. Ms Daniel said that the Reputational Risk will also need to be considered. Ms Harper shared that she has spoken to [the claimant] about his employment and he said that he if was asked to step down, then there is likely to be something else that he can do. Mr Frei said he could not see what he could do within the United Synagogue. Ms Wiltshire noted that he could potentially have a role within the community. Ms Stewart-Darling suggested that he could lecture adults at a theological college.” Publication of ‘Nursery Crimes’ videos

[77]On 19 and 20 July 2022 the claimant posted four videos entitled ‘Nursery Crimes’ on YouTube. The claimant prepared the cartoons himself, using Word to illustrate them and his own voice as a voiceover, although he did not otherwise identify himself. No copies of the videos were made available for the Tribunal to consider.

[78]The videos contained cartoon violence. Each was a take on a classic nursery rhyme with a twist. For example, one video was of ‘Incy Wincy Spider’. The ending of the rhyme was changed so that the spider stabbed a man in the head. Blood was depicted.

[79]The claimant uploaded the videos to a new channel on Youtube, which is a public and searchable forum. He marked them as not suitable for children. The claimant accepted in cross examination that he was aware that they would be available to the general public. He shared the videos with his children (it is not clear how many of his children he shared the videos with, but we accept his evidence that the intended audience was his older boys, one of whom was diagnosed with autism). The children forwarded the videos on to at least one friend, who was the son of a Rabbi. The boy shared the videos with his father, who shared them with other Rabbis, and in this way the matter came to the attention of the first respondent. They were then viewed by Mrs Wilshire and others in the first respondent, including the Chief Rabbi and the Head of Safeguarding.

[80]The first respondent informed the police and LADO of the videos on 20 July 2022.

[81]A fourth LADO meeting was held on 22 July 2022. It is recorded under the heading ‘Future Employment Action’: “[redacted] said that if it will take months once the matter is passed on to the CPS to make a charging decision, it is unlikely that Moshe Freedman will remain employed by the United Synagogue. However, given [the claimant’s] current Mental State, they do not want to take any action that would tip him over the edge. She would therefore urge that a Mental Health Assessment is carried out as a matter of urgency.”

[82]Because of the redaction it is not clear who this comment was made by. Mrs Wiltshire in her evidence could not recall.

[83]It is reported in the Actions section: “Detective Inspector to be consulted on how to progress the Police’s Investigation given that [the claimant] [redacted] and is therefore unwilling to accept a Police Caution for the Sexual Assault Incident at this time.”

[84]We accept Mrs Wiltshire’s evidence that, during this meeting, the police were taking the videos very seriously, and would need to consider whether to take the matter further. Conclusion of police investigation

[85]The second LADO meeting was held on 28 July 2022.

[86]We accept Mrs Wiltshire’s evidence that at this meeting she was told that no further action would be taken by the police as the claimant had taken down the videos immediately when the matter was raised with him. Further, the police said that [REDACTED] had declined to participate in any further interviews and did not want to appear in a video recorded interview. The implications were explained to her (that there would be no further action) and she said this would not alter her decision. This is consistent with the email of 28 July 2022 from the police discussed below. The police also said that the option of a caution in relation to the incident had been considered but it had been decided it was not a viable option at that time as when the police had notified the claimant about the possibility of a caution he said that he would commit suicide if that were to happen, and for that reason the police decided not to proceed with a caution.

[87]It is noted that the minutes record a briefer version in relation to the caution: “As [the claimant] has not fully admitted to the offence, [the police officer] is unable to issue a caution. This means that it is likely that the Police will be taking No Further Action…”

[88]Nevertheless we accept Mrs Wiltshire’s account of what she was told in the meeting.

[89]That afternoon a formal decision was taken by the Police to take no further action, which was confirmed by email [REDACTED]

[90]On 31 July 2022 the claimant sent an email to Mr Frei and Mr Wilson: “I trust you are well. Given the conclusion of the police investigation with the case against me being dropped and no further action being taken, [REDACTED] keen that I get back to fulfilling my rabbinic duties as soon as possible, which will also maximise the benefit to the community who have undoubtedly been placed under enormous pressure and difficulty during my absence. As I intend to complete my move back to the New West End this week, I am available to return to my full-time duties from the week commencing Monday 8th August. To support my return to work and to respond to the many questions that have been posed about my wellbeing from the community, I have taken the liberty of drafting what I believe to be an appropriate letter to the community for your comment, [REDACTED] I would like to agree my return to full rabbinical duties with you at the earliest opportunity, together with any other relevant parties, either in person or in a video conference, and will gladly work around your schedules to make this happen…”

[91]The draft letter referred to was intended to be circulated to the community from himself [REDACTED] and explained his absence as having been due to a period of acute mental illness.

[92]By letter dated 1 August 2022 the claimant was informed that he remained on suspension, [REDACTED] He was offered a meeting to discuss, but declined this.

[93]On 15 August 2022 the final LADO meeting was held. At the meeting the LADO found that the allegation was substantiated: “Ms Daniel shared that her view was that the allegations were Substantiated. This is based on the consistent account [REDACTED] provided to multiple professionals throughout this process and the part confession that Moshe Freedman has made [REDACTED] Hence the Allegation is substantiated.”

[94]Under the heading ‘Employment Information’ there was a discussion about an announcement sent out by the first respondent. It is recorded: “Moshe Freedman did request that the statement was amended to state that the United Synagogue were praying for him [REDACTED]. Given the allegations made against Moshe Freedman and that the United Synagogue may terminate his employment in the future, it did not feel appropriate to make that sort of comment in the announcement.”

[95]On 17 August 2022 the claimant underwent an assessment for autism spectrum disorder (‘ASD’) under clinical psychologist Ms Io Vassiladou.

[96]On 24 August 2022 Mrs Wiltshire emailed the claimant as follows: “…I’m sorry it has been a few weeks since we have been in touch, however as I explained in my last letter, we are awaiting the outcome from the Social Services [REDACTED]. We have been informed that we are likely to receive the written outcome from this group in early September. Once we receive this outcome we will be in touch to communicate the outcome and next steps. I know that this will be disappointing to you, however we will act as rapidly as we can, once in receipt of the written outcome.”

[97]The claimant was invited to a meeting on 12 September 2022 with Mr Wilson, Mr Frei, and a representative from his other employer. The claimant attended with his brother for support. At the meeting the claimant was informed of the outcome of the LADO investigation. The claimant informed Mr Wilson and Mr Frei that he had undergone an assessment for autism (it is noted that a report had not been produced at this point).

[98]A further meeting was held between the claimant, Mr Wilson and Mr Frei on 23 September 2022. During this meeting Mr Frei explained the LADO investigation outcome and confirmed that ‘substantiated’ only meant that the allegations made were reliable but could not rule or determine the motive or intentions of the claimant. The claimant was told that Mr Wilson and Mr Frei did not feel there was a need for a fresh investigation to take place given the disclosures [REDACTED], together with the police investigation and the LADO investigation. However, there would be an investigative element. There was a discussion as to whether the chair of the disciplinary process could be a former trustee of the first respondent who was a retired judge. The claimant agreed this would seem a good choice. He formally agreed this proposal on 4 October 2022.

[99]On 6 October 2022 Mr Frei emailed Mr Wilson with a list of issues to consider in the investigation. This included a section ‘Points for consideration’: “Whether in the light of the finding of the Westminster LADO that the allegations of a sexual assault were substantiated, it is tenable for the Rabbi to remain in our employment? (It should be noted that the LADO’s understanding of ‘substantiated’ is that the Rabbi admitted to touching [REDACTED] in a way which caused her to feel violated regardless of his own motivation) From a reputational point of view, even if the Rabbi is not considered a risk as above, are his employers entitled to consider the reputational damage that would follow should it ever become known to the pubic that the Rabbi had been arrested (albeit not charged), [REDACTED] and that the LADO had concluded that the allegations against him were substantiated? Is there an additional reason to dismiss the Rabbi on the grounds that as a Rabbi he has admitted to breaching Halacha [REDACTED] [REDACTED] [J] report

[100]On 14 October 2022 [REDACTED] [J] concluded a specialist assessment report on the risks and safeguarding issues which might arise as a result of the allegations made. Parts of the report relevant to the incident itself are discussed above. The following paragraphs discussed in evidence contained redactions made by the claimant before presenting the report to the first respondent. The parts redacted are shown here as underlined: “50. [REDACTED] Nevertheless, regardless of his tendency to be tactile and affectionate, my view is that Rabbi Freedman’s physical contact [REDACTED] clearly transgressed appropriate boundaries and was therefore of a different order.51. [REDACTED] at the time he demonstrated a lack of awareness and insight into the appropriateness of his behaviour, and consequently placed himself in a situation he did not know how to manage. He now admits that he "crossed a line". [The claimant] recognises that his behaviour could have been perceived to be sexual for which he now takes full responsibility. [REDACTED] I do not find this a persuasive argument and am of the view that his actions toward [REDACTED] on the occasion concerned extended well beyond the boundaries [REDACTED]

52. It is important to consider what was in [the claimant’s] mind at the time of the incident. At its most innocent this was a display of affection, although in any case, regardless, the level of affection shown was still inappropriate. [REDACTED] This is an incident where he showed poor judgement, contrary to [the claimant’s] assertion earlier in the interview that he is someone who needs to plan given his role within the community, “I have a lot of interactions with people so I am careful. I’m sensitive, and careful in how I manage myself”. [REDACTED]

[101][REDACTED]

[102]Paragraphs 65 and 66 concluded (with the claimant’s redactions underlined): “In terms of the other two domains; social and emotional functioning and self-management difficulties, as noted within the body of this report, [the claimant] reported problems within his previous relationship which included a lack of emotional intimacy and difficulty on occasions with communication, [REDACTED] He does also appear to have age appropriate friendships and support networks. There is no indication that he struggles to maintain adult relationships, or that he lacks the skills to ask for help if he needs it. However, in my assessment [the claimant] has struggled to manage his feelings in the past. Examples include his difficulties with his mental health in his late 20s, his suicidal ideation following the onset of the police investigation, and his tendency to breach his own boundaries in relation to his sexual relationships. For example, I note that he failed to abstain from pre-maritaI sexual activity at university, despite his values in this regard, and that he quickly formed a committed relationship with his wife having previously decided to remain single for a period of time following the end of his first marriage. These examples all suggest that in some situations [the claimant] finds It difficult to keep his feelings - and his behaviour - in check. My view is his behaviour [REDACTED] represents more of the same, hence his transgression of appropriate boundaries. As I have suggested earlier in this report, it might be that [the claimant’s] short-comings in this regard have their origins in his childhood. 66. To summaries (sic), in my assessment, [the claimant’s] difficulties are principally limited to the area of emotional regulation and how this has the potential to Influence his conduct in some specific situations. [REDACTED] Moreover, there are no significant difficulties present across other multiple domains in [the claimant’s] life. [REDACTED]

[103][REDACTED]

[104][REDACTED]

[105]It is noted at paragraph 69 that there was evidence of difficulty in emotional regulation on occasions and the claimant was awaiting an assessment for Autism Spectrum Disorder (ASD). Without sight of the report [REDACTED] could not comment further on this, however suspected that this might provide some insight into some behaviours displayed as a child. The first respondent’s investigation and risk assessment

[106]On 25 October 2022 a letter was sent to the claimant notifying him of the commencement of the first respondent’s internal investigation into the incident of 16 May 2022 and introducing Mr Frei as the investigating officer. We accept Mrs Wiltshire’s evidence that the claimant had previously agreed to Mr Frei undertaking that role, the intention being that the circle of people aware of the allegations would be kept to a minimum.

[107]The claimant emailed the same day to confirm his attendance and that he would be providing a copy of the [REDACTED] [J] report and an ASD assessment report.

[108]Ms Vassiladou produced her report dated 29 October 2022, concluding that the claimant met the diagnostic criteria for ASD.

[109]On 4 November 2022 the claimant prepared a lengthy disciplinary statement for his other employer. This included his summary of the events of 16 May 2022, and a document [REDACTED] This was subsequently given to the first respondent to consider.

[110]An investigation meeting with the claimant took place on 4 November 2022. At this point the claimant had only provided a redacted version of the [REDACTED] [J] report. After the meeting he provided a redacted version of Ms Vassiladou’s report, stating that he had removed the body of the report as it contained private and personal information which was only disclosed for the purposes of the diagnosis. A summary of his interview was included in the investigation report.

[111]Separately to the disciplinary investigation, the first respondent carried out a risk assessment in relation to the incident of 16 May 2022. On 25 November 2022 the claimant was invited to an interview. The purpose and overview of the risk assessment was described as follows: “Purpose: The purpose of the risk assessment is to ascertain whether any risk [the claimant] may pose in the future can be mitigated, beyond reasonable doubt. Overview: The risk assessment is not about who the victim was or those that were harmed by [the claimant’s] behaviour, but rather about the behaviour itself. As the risk assessment includes reputational risk, the behaviour considered includes the fact that there was a breach in the Rabbinic expectations of his behaviour / Halacha. …”

[112]The outcome of the risk assessment was as follows: “[The claimant] is obviously highly intelligent and was extremely well prepared for the Risk Assessment, with his answers and (given his vast experience) repetitive use of limited examples seeming to be a reflection of his preparation. He did not appear to be sorry for what he had done, but did express regret about the impact it has had [REDACTED] [The claimant] explained that people with ASD love to have rules and clear boundaries because that's how they know how to navigate situations. There are now rules in place for him to follow. Going on the this and his other answers, a convincing argument was given as to why the behaviour would not be repeated. It is important to note however that when [the claimant] met with Steven Wilson and David Frei in May, he was absolutely remorseful about his breach of Halacha. The contrasting rationalisation detailed in the narrative below is recent. Furthermore, the notes taken by David Frei of that meeting show that it was clear that [the claimant] was aware on the day of the incident that he had upset [REDACTED] Therefore, taking into account the concerns, in order to get a greater insight overall beyond the answers that [the claimant] gave, in would be necessary for [the first respondent] to arrange for him to see a clinical psychologist.”

[113]On 1 December 2022 the second respondent was formally asked to act as independent chair as the investigation was complete.

[114]On 14 December 2022 Mr Frei produced his finalised investigation report.

[115]The report contains a list of evidence collected. This included the LADO summary paragraph for internal disciplinary processes, the redacted [REDACTED] [J] report, minutes of the call of 20 May 2022 together with claimant’s comments, Ms Vassiladou’s redacted report, the claimant’s contract of employment, and a summary of interviews. In a section entitled ‘Evidence not collected’ it is stated: “The investigation did not consider the veracity of the Allegation at all. The [first respondent] has relied on the position set out in the report of the LADO Committee, concluding that the allegations were Substantiated. This conclusion followed an investigation by the police and consideration of the matter by the multi-agency group chaired by the LADO, members of which, spoke to the relevant people concerned, [REDACTED]

[116]There is a list of persons interviewed. This includes Chief Rabbi Mirvis whose statement was as follows: “The Chief Rabbi said he seriously questioned Rabbi Freedman’s fitness to be a Rabbi in our community in the light of the behaviour [REDACTED] He was also concerned that if allowed to remain in position and there was ever repetition of this behaviour and it became known that we had been aware of the incident and had not acted, we would be asked why we had allowed him to stay? He also thought the cartoon video which was wholly inappropriate. Apparently, Rabbi Freedman’s son had sent the videos to the son of another Rabbi who forwarded them to Rabbi Hackenbroch who heads the rabbinical Council of the United Synaggoue (sic). Rabbi Hackenbroch showed him one of the videos while on a train journey with him. The Chief Rabbi thought that the violence depicted in the cartoon video was dangerous”

[117]Statements were taken from others who had also seen the videos, friends of the claimant who spoke in support of him, and Dayan Gelley who provided his response disagreeing with the claimant’s representations in relation to Halacha.

[118]The report addressed potential reputational risk and stated this was a matter for the Chair to determine what, if any, relevance this has and what bearing those should have on the disciplinary outcome (if any). Similarly, the report refers specifically to the claimant’s ASD diagnosis and states is for the Chair to determine what, if any, relevance, this has to the disciplinary sanction, if any, which should be applied.

[119]The conclusion of the report was as follows: “The LADO Committee determined that [the first respondent] is required to undertake an internal disciplinary process in accordance with its HR processes. In particular, the LADO directed that [the first respondent] needs to determine: (ii) his suitability or not to continue in his role at [the first respondent] as Rabbi of a community. I conclude that the actions of Rabbi Freedman in relation to the Allegation which has been Substantiated amount to a breach of the Halacha and Contract of Employment (as more particularly set out above). I also conclude that the videos which were posted on You Tube, may amount to a breach of the Contract of Employment and are not in the spirit of the Rabbinical Council guidance (see DOC 13) … Both allegations carry reputational risk for the United Synagogue should the matters become more widely known in the community. It will be for the Chair to consider the findings I have made in all the circumstances of the matter. The Chair will need to determine what disciplinary sanction should be applied, which could range from no sanction, an informal warning, a first written warning, a final written warning and/or dismissal (with or without notice). It will be for the Chair to determine the relevance, if any, of the ASD diagnosis and the reputational risk to the sanction, if any, to be applied. It will be for the Chair to determine whether further evidence is required to determine whether Rabbi Freedman could [REDACTED], either within or outside of the United Synagogue or to other vulnerable adults. For these purposes, I note that in his role as Rabbi of the Synagogue, [REDACTED] The disciplinary hearing and decision

[120]On 16 December 2022 the claimant was sent an invitation letter to the disciplinary hearing. The allegations were summarised as follows: “1. On Monday 16th May 2022, [REDACTED] The allegation was substantiated by Westminster LADO and working group (“Allegation One”). 2. During the week commencing Monday 18 July 2022 there were posted to YouTube, 4 videos with cartoon depictions of nursery rhymes (headed ‘Nursery Crimes)’ with a murderous twist and narrative. They feature your voiceover, and they contained violent and morbid content (“Allegation Two).”

[121]The letter went on: “In addition, as a Rabbi, you are bound to comply with Halachic rules. Allegation One and Allegation Two will be considered taking into account the express terms set out in your Contract of Employment, the relevant workplace policies and the Halachic Rules relating to Shomer Negia.”

[122]The letter made reference to paragraphs 8 and 14.2 and Appendix 1 of the claimant’s contract of employment, stating that this was not exhaustive.

[123]In relation to the role of the independent chair, it stated: “The Independent Chair will consider all of the circumstances of the matter, including but not limited to the allegations, the investigation findings, information communicated at the hearing, extenuating circumstances, your length of service and past performance. The Independent Chair will consider the terms set out in the Contract of Employment. The Independent Chair will then decide what outcome is appropriate and fair given all of the circumstances. This could range from the Independent Chair determining that no action should be taken, that you should be issued with an informal warning, a written warning, a final written warning or that you should be dismissed (with or without notice).”

[124]The claimant was given the right to be accompanied by a colleague or trade union representative, and was also told he could request a Senior Rabbi to be part of the process.

[125]By email dated 23 December 2022 a request was passed on from the second respondent to the claimant for an unredacted version of the [REDACTED] [J] report. The claimant agreed to send this together with a full version of Ms Vassiladou’s report.

[126]On 4 January 2023 the claimant provided a full response to the investigation report. This included ‘A brief report on Autism Spectrum Disorder’ The report on ASD is not about the claimant’s own experiences. It is written in the third person and is his summary of academic research he has undertaken on the subject. The claimant also sent full, unredacted versions of the [REDACTED] [J] report and the ASD assessment report of Ms Vassiladou.

[127]The disciplinary hearing was on 11 January 2023.

[128]The claimant asserts that the second respondent was adversarial during this hearing. The claimant put to the second respondent in cross examination that he put the claimant under pressure by asking leading questions in the way that a prosecutor might do. The second respondent denied that. Otherwise there were no questions put to the second respondent in relation to his manner during the hearing, though objections were raised as to particular questions asked. Having heard the evidence of the second respondent and having listened to extracts from the recordings, we reject the claimant’s case. The claimant’s brother said that the issue he had was with the second respondent’s tone. It was explored in cross examination which part of the hearing he was referring to, however when the extract was played the Tribunal noted that the second respondent’s tone was calm and neutral. He was asking reasonable questions in the context of exploring the allegations and the explanations given by the claimant, including questions to test the claimant’s assertion that he had difficulties with boundaries. He ensured that the claimant could take breaks to compose himself when he became upset.

[129]The outcome of the disciplinary hearing was set out in a letter dated 30 January 2023. The letter sets out the way in which the decision was approached. In particular it is recorded at paragraph 14: “Whilst the LADO and [other employer] decisions are pieces of evidence in the case, they have in no way influenced my decision. I have endeavoured to conduct my own analysis of the evidence looking particularly at the explanation you have provided mindful of your concerns about the LADO investigation.”

[130]The conclusions were set out as follows: “48. Whilst I acknowledge that your recent ASD diagnosis has provided you some clarity and understanding on matters that you claim, have troubled you for some years, the diagnosis cannot detract from the fact that you carried out the actions described within the allegations. Whilst you may be better equipped to deal with these challenges moving forward, your actions have had had serious ramifications which cannot be ignored.49. I am satisfied that Allegation 1 is made out [REDACTED] It was a gross breach of trust [REDACTED] Allegation 2 is also made out and aggravated by it occurring whilst the May 2022 incident was being investigated.

50. Your role as a Rabbi in the community, giving spiritual, ethical and moral guidance places you in a special position of trust and confidence with your congregation. [REDACTED] I cannot see how the knowledge of these matters could be successfully managed within your own synagogue or the wider United Synagogue. It would not be appropriate to manage it in a secretive manner.

51. Further your behaviour means that you have breached your contract by not using your best endeavours to promote the best interests and reputation of your employers; the knowledge of your wrongdoing must be harmful to their reputation. I do not find any mitigation in your conduct because of ASD or your alleged difficulties with boundaries; your behaviour was deliberate and unacceptable.

52. I am in no doubt that should the trustees and members of the New West End Synagogue find out about these incidents, they would be appalled and the relationship of trust and confidence in their Rabbi would be irrevocably destroyed.

53. Based on the facts of the case, I have no doubts that your behaviour on 16 May 2022 and the creation and posting of videos in July 2022 was a breach of Clause 8.2 of the employment contract in that this behaviour did not promote the best interests and reputation of the United Synagogue and the New West End United Synagogue and would tend to bring those organisations into disrepute.

54. More importantly the nature of these incidents is totally inconsistent with your standing as a Rabbi of the United Synagogue including your failure to observe Halachic guidance.

55. It is therefore my recommendation to summarily dismiss you without notice.”

[131]The claimant was given a right to appeal.

[132]The claimant had a call with Mr Wilson on 31 January 2023. He was very upset with the decision. Mr Wilson’s summary of the call includes the following: “[The claimant] said that he felt that throughout this experience he had been totally open and transparent and made very personal information available, but that it had all been used against him, and none of the mitigations had been considered. He felt that having taken such an open approach, he was being called a liar. [The claimant] said that I had commented that [the second respondent] would be impartial and fair – but [the claimant] feels that he hasn’t been. [The second respondent] has used everything negative that [the claimant] has provided, but disputed everything positive. He is not happy with that. This will form the basis of his appeal.” The appeal

[133]On 6 February 2023 the claimant sent his appeal letter to Mrs Wiltshire. In summary, he stated: “…I am profoundly disappointed by the outcome but moreover, I consider the grounds for my dismissal to be deeply flawed, unreasonable, and prejudiced for the following reasons. 1. The sanction of dismissal was unduly excessive. 2. The investigation and was prejudiced and unfair. Furthermore, Judge Ansell’s adversarial methods of interrogation and condemnatory approach to the way he conducted the disciplinary process is a clear indication that my dismissal was planned and predetermined by the United Synagogue before this process began. 3. Judge Ansell acted in bad faith and broke confidentiality when he used aspects from the unredacted [J] [REDACTED] risk assessment as part of his justification to dismiss me and included them in his disciplinary outcome letter. 4. Judge Ansell’s failure to consider the impact of my ASD diagnosis or seek a professional opinion was discriminatory under the 2010 Equality Act. 5. Judge Ansell’s running of the disciplinary process was unbalanced and biased. 6. Judge Ansell’s own reasoning was speculative, prejudiced, and flawed.”

[134]Further statements were obtained at this stage. In particular the Tribunal notes a statement signed by a friend of the claimant dated 15 February 2023 who had discussed the incident with Mr Frei on 1 November 2022. He had given a statement previously at the disciplinary stage but at this point added that he said to Mr Frei that he hoped the claimant would be reinstated, then states: “Mr Frei made a comment to the effect of “Well, it’s not looking good for the rabbi” claimant that “the LADO has put us in a difficult position.” I understand this to mean that there was a clear expectation that [the claimant] would inevitably be dismissed from his position.”

[135]The appeal hearing took place on 20 March 2023, chaired by the third respondent. We discuss the content of the appeal hearing where relevant in our conclusions.

[136]On 5 April 2023 the claimant was informed by DBS that he would not be placed on a barring list.

[137]By letter dated 17 April 2023, the claimant’s appeal was dismissed. The letter sets out the third respondent’s conclusions on the claimant’s own account of the facts. At paragraphs 30 and 31 of the letter, he states: “30. I agree with the findings set out in the [REDACTED] [J] Report that these acts and the physical contact which you told me took place over a 15- minute period (approximately in your assessment) on 16 May 2022 “clearly transgressed appropriate boundaries and was therefore of a different order” and that even at its most innocent, the “level of affection shown was still inappropriate”. I find that there was a breach of acceptable boundaries [REDACTED] I also note that the LADO Summary found that Allegation One was Substantiated. I note your acceptance in the Appeal Hearing that you “did something wrong” and that you agreed with the position set out in the [REDACTED] [J] Report. [REDACTED] 31. Indeed, at the Appeal Hearing, you accepted the findings of the [REDACTED] [J] Report in this respect [REDACTED]

[138]The third respondent stated that he placed considerable weight on the professional opinion of the LADO committee. [REDACTED] “…While I have considered whether ASD may have had a role in this, I think that if there was any doubt at all [REDACTED], it was incumbent upon you to stop the contact rather than take any risk. I consider it was reckless and irresponsible of you to continue the physical contact in those circumstances,

[139]The third respondent also noted the advice given to the claimant previously [REDACTED] by Dayan Gelley.

[140]The third respondent considered that the first respondent had already suffered reputational damage as a result of the events, taking into account those aware of the incident, and considered there was considerable risk of reputational damage going forward should the matter become more widely known. He found it surprising that the claimant did not appear to accept or understand the significant reputational concerns: “41. I consider that the United Synagogue has already suffered reputational damage as a result of the events, taking into account those who are aware of the incident. I consider that there is considerable risk of reputational damage going forward should this matter become more widely known, albeit that it is difficult to quantify. I find it particularly concerning and surprising that given your role as a community Rabbi and ambassador of the United Synagogue, that you do not appear to accept or understand the significant reputational concerns and risks that arise based on your account of events.”

[141]He went on to find that there had been a breach of clauses 8.2 and 14 of the contract of employment, and a breach of Halacha/Shomer Negia, and concluded that the claimant’s behaviour amounted to gross misconduct and a breach of the terms of the contract of employment: “42. I also consider the events (again, relying on your account) amount to a breach of the Contract of Employment and in particular a breach of clause 8.2 and the requirement to “use your best endeavours to promote the best interests and reputation of the United Synagogue and New West End United Synagogue and not do anything which is harmful to them.” 43. You have accepted unequivocally that the events amount to a breach of the Halacha, and specifically the rules around Shomer Negia (as you had previously been advised by Dayan Gelley when you asked him). I agree with you and that as well as being a breach of the Halacha, it is in breach of Appendix 1 of the Contract of Employment and the express position that: “As the Rabbi of the Community you will within the limits set by the Halacha, as interpreted by the Chief Rabbi…act as the authority on religious issues for the community, abiding by and upholding the constitution, tradition and usages of the United Synagogue.” 44. I have taken into account Clause 14 of the Contract of Employment and consider that you:a. are guilty of a serious breach of the terms of the Contract of Employment;

b. are guilty of serious misconduct, and breach of duty in connection with your role as the Senior Rabbi at New West End United Synagogue and which affects the United Synagogue; and

c. have behaved in a manner which, because of its nature and the circumstances is inconsistent with your standing as a Rabbi/Minister of the United Synagogue. 45. Overall, I find that your behaviour (even if the facts were as you describe them) demonstrates a severe lapse of judgement on your part, and transgressed acceptable boundaries, inconsistent with your standing as a Rabbi of the United Synagogue and that this amounts to gross misconduct and a breach of the terms of the Contract of Employment.”

[142]In relation to sanction, the third respondent considered that in relation to allegation 1 the claimant should be summarily dismissed. Other sanctions would not be appropriate and in relation to ASD there were no reasonable adjustments which would be appropriate: “46. I have carefully considered the appropriate outcome. In light of my findings that you have been guilty of gross misconduct and the behaviour amounts to a breach of the terms of the Contract of Employment which is inconsistent with your standing as a Rabbi/Minister of the United Synagogue, and taking into account the nature and magnitude of the events, the reputational risk and damage, and the transgression of appropriate boundaries, I have reached the conclusion that summary dismissal is the only appropriate outcome. I do not see how you can continue in your role as a community Rabbi or take on any community facing role or even continue as an employee of the United Synagogue given the seriousness and consequences of your behaviour (and see my position at paragraph 49 below).47. In making this decision, I want to be clear that I have taken into account all the points you have made regarding mitigation, including those set out above.

48. In your Appeal Letter you stated that the sanction of dismissal was “unduly excessive” and at the Appeal Hearing, you stated that you “would have expected after the disciplinary to have received either a written warning or a final written warning”.

49. I have challenged myself to consider whether there are alternatives to summary dismissal, which you raised in the Appeal Letter. Having done so, I do not consider any of them to be viable. The role of a community Rabbi includes many varied and difficult circumstances and I consider that your behaviour, serious lapse of judgement and transgression of boundaries and consequent reputational risk and damage is highly problematic. Maintaining appropriate behaviour and boundaries is key to the role. Mentoring and/or supervision and/or ongoing counselling would not provide round the clock oversight to monitor any lapse of judgement in a response to unforeseen events in the event, for example, that you became overwhelmed emotionally and/or did not think rationally. In the circumstances, I do not think it would be appropriate for the United Synagogue to continue to employ you at all.

50. I have also considered the diagnosis for ASD set out in the ASD Assessment Report. However, given the gravity of the events, a diagnosis cannot excuse that behaviour, and your dismissal would still be justified for the reasons I have explained. I do not consider that there are any reasonable adjustments that could be made. I do not consider that a lesser sanction would be viable and/or reasonable in all the circumstances. For the avoidance of doubt, I do not make any findings about whether or not you would be considered to be disabled within the meaning of the Equality Act 2010, as you assert.”

[143]The third respondent then set out a section of ‘other concerns’ in relation to allegation one, stating: “51. I have reached the decision that you should be dismissed taking your account of events as set out in the Disciplinary Statement and the [REDACTED] [J] Report as true. However, in so doing, I am not accepting your account of events in its entirety. 52. In fact, there are a number of other points which have arisen during these proceedings, which concern me as they would demonstrate an even more serious significant lack of insight into your behaviour and position. These, if true, give yet further support for my decision that dismissal is the only appropriate outcome.”

[144]We accept the third respondent’s position as set out in paragraph 60 of the letter that he reached his decision without relying on the seven points of concern.

[145]In relation to allegation two, the third respondent noted that he had not seen the videos himself, and relied on the descriptions given to him by others. He noted that the first respondent was concerned about both the content of the videos and the claimant’s mental health at that time. He stated that he had taken into account the claimant’s document in relation to his poor mental health and the link between depression, anxiety and ASD diagnosis. He took into account that the position of the police was that they were concerned about the content of the videos and decided not to press charges only because they were removed promptly from YouTube. He found that uploading the videos was not an acceptable father/son activity. Considering the claimant’s comparison with existing cartoons such as the Simpsons, he noted that what a television company produces is not a guideline for what is appropriate behaviour for a community Rabbi. While it was not intended the videos would be shared, in fact some of the claimant’s senior colleagues and at least one other child saw them. He concluded: “79. For these reasons, I consider that the production of and posting of those videos on YouTube amounts to serious misconduct and a breach of clause 8.2 of your Contract of Employment to “use your best endeavours to promote the best interests and reputation of the United Synagogue and New West End United Synagogue and not do anything which is harmful to them.”80. I also consider that there has been significant reputational damage caused by the posting of the videos. They were watched by four senior professional staff of the United Synagogue, the Chief Rabbi, two other Rabbinic colleagues and one of their children, of which we are aware. They were also viewed by social services and the police. I am mindful of the reputational risk and damage which could have been much greater given that the four videos were on YouTube and could have been viewed by members of the United Synagogue, including from your own community, as well as by the general public. You have sought to explain your position by sending links to other dark, morbid and/or violent cartoons, nursery rhymes and otherwise, to demonstrate that there is other similar content available for older teenagers to watch. Given your role as a community Rabbi, I find it worrying and surprising that you do not appear to accept or understand the gravity of this issue. It is not in keeping with how the United Synagogue would want or expect a community Rabbi to represent the organisation.

81. I make no finding about whether it amounts to a breach of the Halacha. However, I find it relevant that you are appointed in your role to “act as the authority on religious issues for the community, abiding by and upholding the constitution, tradition and usages of the United Synagogue” and I take into account that the Chief Rabbi said that he believed the cartoon videos were wholly inappropriate and that the violence depicted was dangerous. (Summary of meeting with the Chief Rabbi)

82. I consider that creating and posting the four videos on YouTube demonstrates a serious lapse of judgement on your part and I consider it is behaviour unbecoming of a community Rabbi. I make this finding even though this took place in the private life to which I consider a Rabbi entitled. This event, together with your response to it since the event and during the disciplinary process, demonstrates a serious lapse of judgement.

83. It follows that I find it was reasonable and appropriate for the United Synagogue to consider this a matter for disciplinary action, having taken into account all of your arguments.”

[146]In relation to sanction, the third respondent concluded: “84. Had this been an isolated incident of serious misconduct, and given your long standing tenure and success as a community Rabbi, and given that you removed the videos from YouTube promptly as requested by Westminster Children’s Services, I consider an appropriate sanction would be a final written warning. It has caused reputational damage and the risk could have been much greater had it not be managed quickly. 85. However, I have also considered Allegation Two in the context of Allegation One and, against that backdrop, find that it shows a further significant lapse of judgement about appropriate behaviour from a community Rabbi. It adds yet further weight to my conclusion that you are prone to serious lapses of judgement and behaviour which is inconsistent with your standing as a community Rabbi, which is incompatible with your continuing employment as a community Rabbi and as an employee of the United Synagogue.” The Law Unfair dismissal

The Law

[147]Section 94(1) of the Employment Rights Act 1996 provides that an employee has the right not to be unfairly dismissed by his employer. It is not in dispute that there was a dismissal within the meaning of section 95(1)(a) by the respondent terminating the claimant’s contract of employment without notice.

[148]Section 98 provides: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee, … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[149]It is for the employer to show a potentially fair reason for dismissal. The burden of proof in respect of the consideration of reasonableness is neutral.

[150]In a misconduct case, the conduct must be capable of justifying the dismissal (Abernethy v Mott Hay and Anderson

[1974] ICR 323

[151]The test under section 98(4) involves a consideration of all the circumstances, one of which might include the fact that the conduct relied upon involves a breach of contract amounting to gross misconduct. However, the question for the Tribunal is whether the employer acted reasonably in treating the reason for dismissal, namely the claimant’s conduct as described, as being a sufficient reason to dismiss in all the circumstances. It is not the case that whenever the label ‘gross misconduct’ is used a contractual analysis as to whether the conduct amounted to wilful contradiction of the contract or gross negligence is required. The contractual context is merely one of the circumstances to be taken into account in determining whether the employer had acted reasonably or unreasonably in treating that reason as sufficient to dismiss (Hope v British Medical Association

[2022] IRLR 206

, which explains the decision in Sandhill and West Birmingham Hospitals NHS Trust v Westwood

UKEAT/0032/09

). This is distinct from the potential requirement to consider that analysis in a wrongful dismissal complaint, discussed below.

[152]In British Home Stores v Burchell

[1980] ICR 303

it was held that where there is a dismissal for misconduct, the Tribunal will have to consider:(i) Whether the employer belief in the guilt of the employee of that misconduct at the time of dismissal;

(ii) If so, whether the employer had reasonable grounds on which to sustain that belief;

(iii) Whether at the stage at which he formed the belief on those grounds, or at any rate the final stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

[153]The Tribunal must consider whether the employer’s decision and the process in reaching that decision fell within a range of reasonable responses open to a reasonable employer on the facts of the particular case (Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

). A Tribunal must not substitute its decision for that of the employer. It is necessary to apply objective standards to all aspects of the question whether the employee has been fairly and reasonably dismissed, and this applies equally to the investigation. (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

[154]When considering the reasonableness of an investigation, the relevant standards include consideration of the gravity of the charges and their potential effect upon the employee. Serious allegations of criminal behaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen not lawyers. It is unrealistic and inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. Employees found to have committed a serious offence of a criminal nature may lose their reputation, their job and even the prospect of securing future employment in their chosen field. In such circumstances anything less than an even-handed approach to the process of investigation would not be reasonable in all the circumstances (A v B

[2003] IRLR 405

at paragraphs 59-60, and see also Crawford v Suffolk Mental Health Partnership NHS Trust

[2012] IRLR 402

[155]Where complaints are made about a disciplinary procedure, the Tribunal should focus on the statutory test. It is inappropriate to attempt to categorise an internal appeal as either a ‘rehearing’ or a ‘review’, as there is no rule of law that only a rehearing is capable of curing earlier defects and what matters is whether the overall process is fair, notwithstanding any deficiencies at an early stage. The fairness of the procedural issues should be considered together with the reason for the dismissal to decide whether, in all the circumstances, the employer has acted reasonably in treating it as a sufficient reason to dismiss (Taylor v OCS Group Ltd

[2006] ICR 1602

[156]This was reiterated in Scott v Northumbria Probation Board

UKEAT/0451/11/RN

. In that case an initial disciplinary decision was taken on a number of bases, one of which related to evidence which, on appeal, was found to be neutral rather than probative of misconduct. The Employment Appeal Tribunal considered that the appeal panel was, by necessity, putting itself in the position of being the principle decision-maker on the issue whether the misconduct was proven and what the sanction should be. Its decision thereupon became the focus of the Burchell approach. In such circumstances a Tribunal must consider the extent and nature of the care the appellate body took in considering the remaining evidence and coming to their conclusion.

[157]We were referred to the case of Governing Body of Hastingsbury School v Clarke

UKEAT/0373/07

. In that case, a teacher was dismissed following a finding of misconduct of a sexual nature and intimidatory behaviour towards pupils. The claimant, who at the time had strongly denied there was anything wrong with his health, produced to the Tribunal a psychiatric report expressing the view that he was suffering from a psychotic illness, and argued that the employer should not have dismissed him without obtaining a medical report. The Tribunal concluded that the dismissal was unfair, as the respondent’s procedure required it to obtain medical advice and it had been advised by human resources to do so (among other reasons). The Employment Appeal Tribunal concluded that the Tribunal had erred in this regard, and that the employers were entitled to consider whether the allegations made against the claimant had been established by invoking the misconduct procedures. Serious allegations of misconduct had been made, and it was appropriate to determine whether or not misconduct had occurred as alleged. This was particularly so as the claimant was himself at all times contending he was not ill and had seen a doctor who had confirmed that. However, the Tribunal was entitled to conclude that the disciplinary procedures should have been suspended pending the referral to occupational health (which had been prepared prior to the dismissal) as that might have given the employer further information which would have been highly material at the stage of determining whether, in the circumstances, dismissal was an appropriate sanction to impose. It might also have caused them to take the view that the case really ought to be seen as an ill health issue rather than one relating to conduct, and to investigate further whether there may have been a medical or psychological cause which could have been adequately treated. The finding of unfair dismissal was upheld on that basis, however the compensatory award was limited to an award of ten weeks’ pay on the basis that dismissal would have occurred around that time in any event had medical information been obtained. The Employment Appeal Tribunal declined to make any reduction in respect of contributory fault, as once it was accepted that the problem had its roots in the underlying mental illness, it was difficult to say that the conduct was culpable, which was necessary to constitute contributory fault (applying Nelson v British Broadcasting Corporation (no. 2)

[1980] ICR 110

[158]The Tribunal also had regard to the ACAS guide to Discipline and Grievances at Work which provides that the nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important [for the employer] to keep an open mind and look for evidence which supports the employee’s case as well as evidence against. Remedy issues

[159]Where a Tribunal finds that a dismissal is unfair, it should consider whether a particular deficiency would have made a difference to the likelihood of dismissal, and an assessment should be made as to the percentage likelihood of dismissal and/or the likely difference in the effective date of termination (Polkey v AE Dayton Services Ltd

[1998] ICR 142

[160]Section 122(2) of the Employment Rights Act 1996 provides: “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”

[161]Section 123(6) provides: “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

[162]Nelson provided a three-stage test for applying reductions for contributory fault:(i) The claimant’s conduct must be culpable or blameworthy;

(ii) The conduct must have caused or contributed to the dismissal;

(iii) It must be just and equitable to reduce the award. Wrongful dismissal

[163]A claim for wrongful dismissal is one of breach of contract relating to the notice period which would normally be given and paid on termination of the contract of employment. An employer has a defence to such a claim if it can show that it was entitled to dismiss without notice by reason of the employee’s repudiatory breach of contract. This may be an express term of the contract, or under common law gross misconduct amounting to a repudiation of the contract by the employee.

[164]In order to amount to gross misconduct for this purpose, the conduct must either be a deliberate and wilful contradiction of the contractual terms, or it must amount to gross negligence.

[165]It is for the Tribunal to undertake a fact-finding exercise to determine whether there has been a repudiatory breach of an express term of the contract, alternatively gross misconduct repudiating the contract.

[166]The claimant submitted that the Tribunal must consider whether the claimant was guilty of the gross misconduct found [by the employer], not some other misconduct. The respondent on the other hand suggests that this is misconceived, and the gross misconduct for which the employer actually dismissed is legally irrelevant. In a wrongful dismissal claim, the questions are(i) what did the claimant do and

(ii) did the employer have a contractual right to dismiss in those circumstances either on the basis of an express contractual right or at common law (which in this case would be gross misconduct). No authority was cited by either side in support of its stance. The Tribunal prefers the respondent’s position. It is well established, for example, that an employer may rely on conduct it was not even aware of at the time of the dismissal to found a defence to a wrongful dismissal claim. This would not be the case if the Tribunal was constrained to consider only whether the conduct found by the employer at the time of the dismissal was in fact made out and amounted to gross misconduct (as the case may be). Disability

[167]Section 6 of the Equality Act 2010 provides: “(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.”

[168]The question whether any particular condition satisfies the statutory definition of disability at the relevant time is a matter for the court (Griffiths v TUI UK Ltd

[2023] UKSC 48

). Medical evidence

[169]Helpful guidance on the use of expert evidence is given in Kennedy v Cordia (Services) LLP

[2016] ICR 325

. In relation to admissibility of such evidence, four considerations are set out (paragraph 44): “(i) whether the proposed skilled evidence will assist the court in its task; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and (iv) whether there is a reliable body of knowledge or experience to underpin the expert's evidence.”

[170]An expert must explain the basis for their evidence (paragraph 48): “An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371: “an expert's opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert's bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.” As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.”

[171]If a party proffers an expert report which on its face does not comply with the recognised duties of a skilled witness to be independent and impartial, the court may exclude the evidence as inadmissible. The requirement of independence and impartiality is one of admissibility rather than merely the weight of the evidence. (paragraph 51)

[172]On ensuring the excerpt performs their role (paragraph 57): “It falls in the first instance to counsel and solicitors who propose to adduce the evidence of a skilled witness to assess whether the proposed witness has the necessary expertise and whether his or her evidence is otherwise admissible. It is also their role to make sure that the proposed witness is aware of the duties imposed on an expert witness. The legal team also should disclose to the expert all of the relevant factual material which they intend should contribute to the expert's evidence in addition to his or her own pre-existing knowledge. That should include not only material which supports their client's case but also material, of which they are aware, that points in the other direction.”

[173]A court is entitled to reject expert evidence entirely, provided it gives reasons for doing so (see for example Armstrong v First York

[2005] 1 WLR 2751

, where a judge’s finding that a party had not been dishonest was sufficient reason for finding that the expert had been wrong and rejecting his evidence, even where it was not possible to identify the flaw in that evidence).

[174]The provisions of the Civil Procedure Rules Part 35 and the Associated Practice Direction may provide a useful source of guidance, at least by way of analogy (Morgan v Abertawe Bro Morgannwg University Local Health Board

[2020] ICR 1043

). Discrimination arising from disability

[175]Section 15 of the Equality Act 2010 provides: “(1) A person(a) (A) discriminates against a disabled person

(b) (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

[176]“Unfavourable treatment” suggests the placing of a hurdle in front of, or creating a particular difficulty or disadvantage for, a person because of something arising in consequence of their disability. “Because of” is to be approached in the same way as elsewhere in the Equality Act 2010. There remains a need to distinguish between mere context and actual cause or consequence. The claimant’s disability need not be the main or sole cause of the unfavourable treatment. It may be enough if the disability was a significant influence on the treatment or a cause that was not the main or sole cause but that was an effective cause (Private Medicine Intermediaries Limited v Hodkinson [2016] 1 WLUK 179).

[177]It is for the claimant to establish that the unfavourable treatment was because of the alleged ‘something arising’. It was noted by the Employment Appeal Tribunal in Sheikholeslami v University of Edinburgh

[2018] IRLR 1090

(at paragraph 62): On causation, the approach to s. 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? And

(ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.

[178]If unfavourable treatment because of something arising in consequence of a disability is made out, there is a potential defence of justification, namely that the unfavourable treatment was a reasonably necessary and proportionate means of achieving a legitimate aim.

[179]We have been referred to City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey

UKEAT/0171/18

, which was a claim of indirect religious belief discrimination and involved justification of a provision, criterion or practice applied to employees in that case. Some of the guidance is applicable to claims for discrimination arising from disability however:(i) The employer must show that the means chosen for achieving the objective correspond to a real need on the part of the undertaking, are appropriate with the view to achieving the objective in question, and are reasonably necessary to that end;

(ii) The burden of proof is on the employer;

(iii) What is required by the Tribunal is a critical evaluation of whether the employer’s reasons demonstrated a real need to take the action in question;

(iv) The Tribunal needs to balance the importance of the respondent’s aims against the discriminatory impact of the PCP [in this case unfavourable treatment];

(v) An employer is not required to prove there was no other way of achieving its objectives (se also Burdett, below). On the other hand, the test is something more than the range of reasonable responses.

[180]Objective justification will not be undermined because the employer’s consideration of the issue was inadequate or procedurally flawed, though that might as a matter of fact have meant that the employer failed to appreciate there were other, less discriminatory alternatives available (Burdett v Aviva Employment Services Ltd

UKEAT/0439/13/JOJ

). Failure to make reasonable adjustments

[181]Section 20 of the Equality Act 2010 provides: “(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

[182]Section 21 provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.”

[183]In Spence v Intype Libra Ltd UKEAT/0617/JOJ a claimant argued that the employer had failed to make a reasonable adjustment by not obtaining and consulting him about a further medical report before dismissing him on grounds of capability. The Employment Appeal Tribunal found that a tribunal will be fully entitled in the light of all the evidence before it to conclude that an employer has failed to make a reasonable adjustment, and his ignorance of the employee's requirements, whether the result of indifference or ignorance, will not avail the employer one iota. The employer may carry out an assessment and fail to make reasonable adjustments; equally, he may fail to carry out the assessment but make all necessary reasonable adjustments. To find an employer liable for not making an assessment even if he took such steps as were reasonable to mitigate the harm was not compatible with the language of the legislation. In short, the failure to obtain medical evidence in itself will not be a failure to make a reasonable adjustment, merely a matter which may mean that the employer is less well equipped to determine what adjustments might be required.

Conclusions

[184]We determined that it would be most convenient to consider the question of disability and discrimination before moving on to unfair dismissal and wrongful dismissal, given the potential impact of any disability (or other medical condition) in relation to the latter claims. Disability

[185]It is a fact that the claimant has been diagnosed as having ASD. That does not necessarily mean that he was disabled at the relevant time. This is a matter for the Tribunal to consider and determine.

[186]The claimant’s submissions first invite us to follow the judgment of Employment Judge Jones in the East London Employment Tribunal dated 14 November 2023, in which the question of disability was considered in relation to the claimant’s claim against his other employer and the claimant was found to be a disabled person for that purpose. We are not bound to follow this decision as a matter of law. Nor do we find it at all persuasive in this case, as we have no idea what the basis was of that decision, whether there was different medical evidence adduced to what we have before us, and whether that Tribunal had full disclosure before it in relation to the preparation of Dr Conning’s report. We do not know what the position might be in relation to any appeal of that decision by the respondent in that case, or what arguments were put forward by the respondent in that case and whether they were the same as those deployed by the respondents in this matter.

[187]We have considered what medical evidence there is before us in relation to disability:

[188]The claimant’s medical records make no mention of ASD in the medical history until after the incident. [REDACTED] In the circumstances the past medical records are not of assistance.

[189]A diagnosis of ASD first comes in the report of Dr Vassiladou, discussed above. This states in the body of the report, “[The claimant] has understood that this report and outcome cannot be used towards procedures such as police Investigations, social care referrals or as an expert court report.” The report does not contain any declaration by the expert as to independence etc (CPR 35). Other than stating that she is a clinical psychologist there is no information as to her qualifications. The claimant has not sought to rely upon it as an expert report in these proceedings, and has not sought permission for Ms Vassiladou to attend as a witness to be cross examined by the respondent.

[190]The claimant contends that the report can nevertheless be considered as part of the medical records. However, the claimant’s submissions invites the Tribunal to adopt what is set out in it as going to the issue of disability. The respondent objects to this.

[191]We have concluded that the report is of some assistance as part of the medical records in our determination whether the claimant is disabled or not. However there remains a question as to the weight to be attached to its conclusions.

[192]The report states that it used a standardised diagnostic observation in clinic following the claimant’s self-referral to explore whether he had autistic traits or was on the spectrum to understand why he struggles to read social cues. The conclusion of the report states that based on the evidence gathered in the assessment, it was concluded that there was sufficient evidence to indicate that the claimant did meet the diagnostic criteria for ASD in accordance with the DSM-5. No detailed reasoning is set out as to why that conclusion is reached. The respondent also points out that the report does not state whether other matters have been considered for exclusion, such as personality disorders. However we are concerned with the impact of any condition on the claimant’s day to day activities, not necessarily with the clinical diagnosis of what the condition is.

[193]The respondents’ position put in cross examination of the claimant was that what was said to Ms Vassiladou was guided by the claimant’s understanding of what it would take to get a diagnosis. By the time the report was prepared we have found that the claimant had conducted considerable research into ASD, on his own account in order to try to explain why he had behaved in the way he did. This is likely to have influenced the examples given to Ms Vassiladou. We do note however that in addition to what is said by the claimant and reported by others close to him, there are observations made by Ms Vassiladou herself which would have contributed to the diagnosis. We find therefore that we are able to give Ms Vassiladou’s conclusions some weight in relation to the specific question of disability.

[194]Ms Vassiladou notes the following: “Dr Freedman enjoys areas of specialist interest, has a high threshold for rules, 'sameness' and routine, and specific sensory preferences. These processing styles are likely to influence the following:• The manner in which he uses language to communicate with others; for example, preferring to converse on topics of interest and meaning with little motivation for informal chit-chat, making unstructured reciprocal conversation with unfamiliar people difficult.

• His tendency to favour a detailed style of conversation which can make it harder for Dr Freedman to consistently sustain reciprocal social interaction with those familiar to his. Differences in use of tone of voice, facial expression and gesture may exacerbate this.

• The ease in which he understands others' intentions and motivation and the expectations they have for him.

• The ease in which he approaches, tolerates and functions in highly changeable and unpredictable environments.

• The ease in which he adapts to change and independently navigates problems outside of routine.

• The ease in which he approaches, tolerates and functions In highly demanding sensory environments. These differences appear to be perpetuated by several factors associated with Autism Spectrum Disorder (ASD), these include difficulties:

• Anticipating other people's thoughts, feelings and intentions (theory of mind).

• Noticing, understanding and managing emotion (interoceptive differences/alexithymia).

• Engaging flexibility of thought and imagination (difficulties with executive functioning).

• Understanding context (central coherence).

• Sensory hypo/hypersensitivity. The factors occur in addition to the wide-ranging systemic factors he has navigated both past and present. These factors are likely to compound, exacerbate and Interact with the differences above. Finally, whilst the differences outlined may predispose him to difficulties In certain contexts, in others, they will afford him many strengths for example his in depth knowledge about his topics of interest…”

[195]We also take into account the claimant’s Impact Statement. It was not put squarely to the claimant that the Impact Statement prepared by him was based on his research rather than his own experiences. We note the following as matters which impact on day to day activities, and are broadly supported by Ms Vassiladou’s report:(i) The claimant struggles with social interaction;

(ii) The claimant experiences isolation and difficulties in maintaining relationships and difficulty keeping friends;

(iii) The claimant finds new social environments threatening;

(iv) The claimant uses social masking but still makes social blunders and gets frustrated when makes mistakes;

(v) The claimant struggles with social communication;

(vi) The claimant takes things literally.

[196]From the evidence given in the Impact Statement combined with the conclusions in Ms Vassiladou’s report, we conclude that the claimant was disabled by reason of his ASD. The matters outlined above did, on balance, have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities, predominantly in relation to communication and social interaction. ASD is a lifelong condition, and is therefore long term.

[197]Given this conclusion we did not need to consider the content of the report of Dr Conning (discussed below) at this stage.

[198]The claimant’s submissions invite to find also disabled in relation to his mental health. This is not in the List of Issues, not pleaded, and was raised for the first time raised in written submissions, thus would take the respondent by surprise. It is not clear from those submissions how it is said to be relevant to the pleaded discrimination. In the circumstances we decline to consider this point. Disability arising from discrimination

[199]The unfavourable treatment relied upon in relation to the claim brought under section 15 Equality Act 2010 is the claimant’s dismissal.

[200]The first point in dispute is the matters relied upon as ‘something arising’ in consequence of the claimant’s disability, namely that ‘he had difficulties recognising social boundaries such that he did not realise that his interaction [REDACTED] was inappropriate or that the videos might be viewed by a wider audience than his children.’

[201]In relation to the videos, the claimant accepted in cross examination that he did know that the videos might be viewed by a wider audience. This is also supported by the parental warning he himself placed on the videos, which indicates he was aware when he posted them that they might be viewed by others. In the circumstances the claimant’s own evidence does not suggest that he did not realise this. We do not need to go on to examine whether this is a potential consequence of the claimant’s disability.

[202]In relation to the claimant’s interaction [REDACTED], the questions for the Tribunal were whether the medical and other evidence put forward by the claimant demonstrated that as a consequence of the claimant’s disability firstly he had difficulties recognising social boundaries and that secondly he did not realise that his interaction [REDACTED] was inappropriate.

[203]Permission was given to the claimant to obtain an expert medical report by Employment Judge Spencer in a case management hearing on 18 September 2023 as follows: “Permission is granted to the Claimant to seek a report from a suitably qualified psychologist or medical practitioner to consider the effects of the Claimant’s disability and to provide an opinion on any link between the matters which have been pleaded as “arising from” the Claimant’s disability and the Claimant’s ASD.”

[204]The respondent did not seek its own report.

[205]The claimant duly instructed Dr Alison Conning, a clinical psychologist. The respondent objects to the content of Dr Conning’s report. We have therefore considered the guidance given in Kennedy as to the weight to attach to the report’s conclusions.

[206]In terms of knowledge and experience, it was not clear from the report whether Dr Conning had any specialist experience in ASD. Our main concerns however related to the impartiality of Dr Conning, and whether she had sufficient information properly to assist with the questions the Tribunal need to determine, given the manner in which instructions were provided to her.

[207]The report in the bundle contains a summary of the instructions provided. In response to the Tribunal’s own questions as to how the report came to be prepared in the way that it was, it was indicated that the claimant prepared instructions himself with guidance from his legal representatives. On review of the instructions as cited in section 2.0 of the report, there are a number of significantly leading questions. Those most relevant to pleaded case are as follows (it being observed that there are some questions which are put more neutrally, and other questions posed which have no relevance at all): “(vi) Does the fact that [the claimant] gave what he considered to be appropriate affection [REDACTED] an example of someone with ASD inappropriately applying one set of learned [REDACTED] rules to a new situation? … (xi) The Respondents claim that the fact that [the claimant] was checking [REDACTED] about the appropriateness of his actions reveals his knowledge that he was transgressing boundaries and revealing the true intentions of his actions which were to take advantage [REDACTED] and derive sexual gratification. Could you comment on whether the fact that [the claimant] was checking [REDACTED] about the appropriateness of his actions, such as telling her to tell him to ‘fuck off’ if she was unhappy with anything – both with his affection at that time and his previous or future interactions with her – is inconsistent with someone who was trying to ensure that he is not crossing any inappropriate boundaries? … (xx) Could [the claimant’s] ASD also explain how he erred in applying the same [REDACTED] rules and boundaries he had [REDACTED] and then mistakenly applied them [REDACTED] (xxi) Could you comment on the claim made by [the claimant] that [REDACTED] people with ASD relish the rules and procedures available, especially relating to safeguarding, as these provide clear boundaries … (xxviii) [REDACTED] and the appropriateness of uploading the cartoons to YouTube given that he had not considered whether his children were going to share them with their friends?”

[208]Any legal representative with oversight should have ensured that the questions posed to the expert were relevant to the pleaded issues, addressed the questions which the Tribunal had to determine as ordered by Employment Judge Spencer, and were posed in a sufficiently neutral way so as not to prompt any particular view. It is not clear what impact there may have been on the evidence given from the manner in which questions were posed.

[209]Further, Dr Conning was asked to comment on the claimant’s impact statement: “(xxvi) Do you consider the impairments in [the claimant’s] Disability Impact Statement to be a true and accurate reflection of someone with ASD? If so, would you be able to state in your report that you have read my DIS and comment on it?”

[210]Although it is not apparent from the report, the claimant confirmed in cross examination that this referred to a previous impact statement, which contained various academic sources, rather than a discussion of the claimant’s own experiences. He wanted to check whether he was doing the right thing. It is noted that he must have also given her his updated Impact Statement served in these proceedings, as there are two statements referred to in section 3.0 of the report. We find the claimant was effectively asking Dr Conning to step outside of her role as an independent expert as ordered by the Tribunal and to give advice or comment on the evidence the claimant himself should be giving to the Tribunal. The claimant was unclear in cross examination whether Dr Conning had provided comments or not, and Dr Conning does not state which impact statement she is referring to.

[211]It is also noted that there were non-neutral explanatory footnotes in the instruction letter (which had not been disclosed to the respondents before the hearing) which were not referred to or duplicated in Dr Conning’s report.

[212]It was not clear until the hearing itself what material had been provided to Dr Conning. This is summarised in section 3.0 of the report, which includes, ‘United Synagogue Bundle’ without any indication of what might have been in that bundle. There were at least two documents which had not been disclosed at all, including the previous disability impact statement and a document entitled [REDACTED]

[213]These matters are compounded by the fact that Dr Conning was not presented for cross examination, and no permission was sought for her to attend. We have considered the correspondence between the parties on this point. The respondents clearly indicated they the evidence of Dr Conning and would want to cross examine her.

[214]Looking at content of the report, there are various issues with the evidence given potentially relevant to the question the Tribunal has to determine, namely whether the claimant had difficulties recognising social boundaries such that he did not realise that his interaction [REDACTED] was inappropriate.

[215]For example, in response to question (xi) Dr Conning states: “…It is my view that his attempts to check that [REDACTED] was comfortable were clumsy and inappropriate, due to his ASD, and were likely to have contributed to her perception that something inappropriate was taking place.”

[216]It does not appear from the instructions that the claimant gave a full account of the incident, and in particular did not mention comments [REDACTED] which he now admits to. The Tribunal does not know what Dr Conning’s answer would be to the use of such stark language.

[217]In relation to question (xx) Dr Conning states (her answer being at response 21): “As stated above, it is my opinion that Dr Freedman’s diagnosis with ASD is relevant here. As someone with ASD, I think it is highly likely that previously he would have been guided by and acted in accordance with Jewish law [REDACTED]. This would have provided him with a clear framework for his behaviour which he could use if and when he was uncertain about how to act. It is my view that his perception that he had permission [REDACTED], led [the claimant] to believe that it was appropriate [REDACTED] Concrete adherence to rules is consistent with ASD [REDACTED] It is my opinion that, as is consistent with ASD, [the claimant] misjudged the social cues [REDACTED] and did not notice or appropriately interpret any discomfort she displayed.”

[218]This answer is in response to a leading question. It assumes that the claimant did consider that there was a change in rules as he suggests, then explores whether his subsequent behaviour might be explained by ASD. There is no examination here of whether the alleged perception that the boundaries had changed might be as a result of ASD. To the contrary, it is suggested that ‘Concrete adherence to rules is consistent with ASD’ and there is no explanation why the claimant would depart from the very clear rules that he was aware of. The question whether ASD led the claimant not to recognise that the boundary had not in fact changed and that the same rules applied is not explored or answered. Dr Conning’s evidence simply discusses the failure to recognise the impact on [REDACTED] having got that wrong, for whatever reason.

[219]The same issue arises in respect to Dr Conning response to question (xxi). We accept the respondent’s position that the way in which questions were put to Dr Conning may mean that she has misunderstood the boundaries which the claimant acknowledges were in place. Dr Conning was not given a full picture.

[220]In relation to question (xxviii), Dr Conning states (her answer being at response 29): “[REDACTED] the level of affection shown was inappropriate, that he was not sensitive to [REDACTED] feelings and the context, and that he showed poor judgment. I am in agreement with this conclusion, and it is my opinion that [the claimant’s] inability to make an appropriate judgment in this situation was as a result of his ASD…”

[221]There is no explanation why Dr Conning asserts that there was an inability to make an appropriate judgment in this situation that that this was a result of ASD. Nor is this consistent with her previous conclusions in relation to the concrete adherence to rules. [REDACTED] there is no answer to why he would then go well beyond even those boundaries.

[222]In the circumstances, given the numerous difficulties with the way in which Dr Conning was instructed and the evidence she gives as a result, and in the absence of hearing from Dr Conning to address these concerns, the Tribunal is satisfied that it should not give any weight to her report.

[223]On the claimant’s own submissions (in relation to reasonable adjustments) neither the ASD assessment report of Dr Vassiladou nor the [REDACTED] [J] report expressly considered the claimant’s explanation as to the allegations in light of his ASD. In short, they do not deal with the question the Tribunal needs to answer in relation to ‘something arising’. We are therefore left with the claimant’s own evidence on the point.

[224][REDACTED]. He describes his actions as ‘the result of an innocent misunderstanding’. In his cross examination, the claimant said, “Everybody, and I explained in the appeal, knows there are boundaries they can’t cross, then justify it to themselves at times of strong emotion. … You asked me a lot of questions about Jewish law yesterday. … We are fallible and might do things that are wrong, and justify to ourselves[REDACTED]. It’s not that I can’t understand boundaries, this was a moment of intense emotion, misunderstanding and stupidity and all sorts of things…”

[225]We have considered the boundaries that were in place for the claimant. [REDACTED].

[226]We also take into account that a central part of the claimant’s role as a Rabbi, which included giving guidance to others as to how to apply Jewish law to their every day lives, involved understanding boundaries.

[227]In the circumstances we do not accept the claimant’s suggestion that he had difficulties recognising social boundaries.

[228]Even if we are wrong about that, and if there had been any confusion [REDACTED], the claimant’s behaviour went well beyond what was appropriate [REDACTED] This was compounded by the fact that there had been no physical contact at all between them previously [REDACTED]

[229][REDACTED]

[230]We therefore conclude that even if there was any failure to recognise what boundaries were appropriate in this situation, the claimant cannot demonstrate that he did not realise that his interaction [REDACTED] was inappropriate.

[231]As to any link with ASD, the credibility of the claimant’s own evidence in this regard is significantly weakened by the fact that he spent a considerable period after the event researching how ASD might have some sort of effect in this situation. This makes it very difficult to establish whether his assertions as to how ASD affected him are the product of academic research or lived experience.

[232]We also take into account that typically (and on the claimant’s own account) individuals with ASD tend to adhere strictly to rules and boundaries. In this case the claimant is asserting the opposite, that it was ASD that caused him to ignore the boundaries he knew were in place.

[233]We conclude, on balance, that there is insufficient reliable evidence for the claimant to demonstrate that any difficulty with social boundaries in this situation or any difficulties in recognising that his actions were inappropriate were the result of ASD.

[234]In the circumstances the complaint under section 15 fails because the claimant is not able to demonstrate the ‘something arising’ element. It is not necessary for the Tribunal to go on to consider the respondent’s justification defence. Reasonable adjustments Failure to get and review medical evidence before dismissal

[235]The claimant has provided no evidence at all to demonstrate that the respondents had a practice of not obtaining medical evidence prior to dismissal. This point was not put to either the second respondent or the third respondent in cross examination. Moreover, they did have medical evidence before them, as the claimant himself had produced his autism report for consideration.

[236]What is now submitted is that the respondents ought to have obtained a further medical report. There is no proven disadvantage to the respondents not obtaining a further medical report. The claimant asserts that the claimant’s conduct would have been explained and mitigated by this, however that is a hypothetical assertion. An independent report may have provided mitigation or it may have concluded that the claimant’s conduct could not be explained by his ASD.

[237]We find that Spence v Intype Libra Ltd is not distinguishable from the present case, even though the present context is a disciplinary process to assess the claimant’s conduct Spence was concerned with a capability process. Obtaining a medical report would not in itself alleviate any disadvantage. Rather it would provide further information to an employer to enable it, potentially, to avoid any discrimination arising from disability.

[238]It is also submitted by the claimant that he did not know his own explanations as to the link between autism and ASD would be ignored. We find having heard the evidence of the second and third respondents that this evidence was not ignored, it was considered and rejected.

[239]In the circumstances this complaint fails. Conducting disciplinary proceedings in an adversarial manner

[240]It is suggested that the first respondent and second respondent had a PCP of conducting disciplinary hearings in an adversarial manner. This allegation is not levelled at the third respondent, and in light of the distinction drawn between the second and third respondents it is not clear what the basis is for the claimant to say the first respondent had this practice generally. We find that there is no evidence of such a practice in relation to the first respondent.

[241]As to the second respondent, it is asserted that he conducted disciplinary hearings for the first respondent previously, and it was likely his manner was similar in those hearings, for which no evidence at all has been provided. The claimant alleges that the second respondent conducted the claimant’s disciplinary hearing in an aggressive manner. As found at paragraph 129 above, the Tribunal rejects the claimant’s assertion that the second respondent was adversarial during the disciplinary hearing.

[242]This complaint therefore fails. Not having weekly contact

[243]The claimant asserts that the respondent had a PCP of its management not having weekly contact with the claimant while he was suspended. While it is noted that the alleged PCP is peculiar to the claimant, Ms Wiltshire accepted in evidence that there was sporadic contact not weekly contact. It is potentially a PCP. However the alleged disadvantage is to do with the claimant’s mental health. For the reasons set out above we have not considered whether the claimant’s mental health amounted to a disability as this is not pleaded. There is no apparent connection to ASD and no evidence has been given or submissions made as to any connection between ASD and self-harm. There is also no evidence to suggest that having weekly contact as opposed to sporadic contact would have improved the situation. In any event the claimant was given unlimited access to a psychotherapist.

[244]In the circumstances this complaint also fails. Unfair dismissal

[245]We remind ourselves that we must not substitute our decision for that of the employer. The question is whether, looking at all the circumstances in the round, dismissal was within a range of reasonable responses. The circumstances include the various limbs of the test set out in Burchell. The claimant’s submissions do not clearly follow the points set out in the List of Issues for the Tribunal to consider. The various points made in submissions have therefore been considered where the Tribunal felt most relevant to the issues to be determined, but all matters have been taken in the round in deciding whether the dismissal was fair or unfair.

[246]We start with the reason for dismissal. The respondent contends that the claimant was dismissed by reason of misconduct in relation to the incident on 16 May 2022 and/or the videos. We are satisfied that the reason for dismissal related to the claimant’s conduct, which was a potentially fair reason to dismiss. We have not found a discriminatory reason for dismissal. We reject the claimant’s assertion that the dismissal was predetermined. Taking each point raised in the claimant’s submissions in turn:(i) The claimant submits that in the meeting of 12 July 2022 [REDACTED] Ms Wiltshire sought direction from the LADO as to what the first respondent’s position should be in terms of the claimant returning to his role. The quote from this meeting in the claimant’s submissions is misleading, and missed the crucial context that Ms Wiltshire had first asked the LADO what the position would be, based on what was known at that time, in terms of the claimant returning to his role if the police took no further action. [REDACTED] Ms Wiltshire then states, perfectly neutrally, that the Jewish Community were calling for action to be taken on a weekly basis whether that be that the claimant is returned to his role or replaced. The response was that once the police investigation was concluded, the LADO would advise the first respondent to conduct its own investigation where allegations would be put to the claimant and he had a right to reply (this is missed from the claimant’s submissions). The LADO continued that at that stage the first respondent would need to decide whether it was appropriate for the claimant to continue in his current role. It is in that context that the LADO suggested that the first respondent might think about a possible replacement given that the claimant had made a partial admission. There is no evidence before us that the first respondent did in fact seek possible replacements. The exchange does not suggest that there was any predetermination by the first respondent.

(ii) The claimant refers to the reference in a redacted minute of 22 July 2022: “it is unlikely that [the claimant] will remain employed by [the first respondent]” which is again not a full quote and misconstrues the context of what was being said. It is not at all clear that the quote was by Ms Wilshire or Mr Frei as alleged, and the context is clearly someone opining what might happen “if it will take months once the matter is passed on to the CPS to make a charging decision”. It is hypothetical and that situation never arose. The comment was not made nor heard by either of the decision makers the second and third respondents, because they were not there. Again this is not evidence of pre-determination.

(iii) The claimant then suggests that in the meeting on 15 August 2022, Ms Wiltshire commented regarding the claimant’s request that the first respondent expressed prayers for the claimant and his family: “Given the allegations made against [the claimant] and that [the first respondent] may terminate his employment in the future, it did not feel appropriate to make that sort of comment...”. This is not any statement that the first respondent intended to terminate the claimant’s employment. It was a neutral statement that this might happen.

[247]The Tribunal finds that the first respondent had a reasonable belief that the claimant was guilty of gross misconduct. Both the second and third respondent were unequivocal in what was set out in their outcome letters and in their evidence before the Tribunal, that they believed the claimant was guilty of gross misconduct, and the Tribunal accepts their evidence in this regard.

[248]Before coming to the reasonableness of that belief, the Tribunal has examined the claimant’s criticism of the way in which the investigation was carried out. The claimant says the investigation fell outside the band of reasonable responses and was tainted from the outset. We have taken the points raised in the claimant’s submissions in turn.

[249]First, the claimant says Mr Frei was exposed to loaded and prejudicial terminology, including the words ‘confession’, ‘admission’ and ‘offence’ throughout the LADO meetings, which assumed guilt [REDACTED] This is another area where the claimant’s submissions ignores the surrounding context. The purpose of the LADO was to explore the referral made by the police, share information, consider the allegation and determine a way forward. The initial LADO meeting identified three strands to considering the allegation: a police investigation of a possible criminal offence; [REDACTED] and consideration by an employer of disciplinary action. It would have been clear and obvious to Mr Frei and all others present what the context was in relation to the use of these types of words. We accept Ms Wiltshire’s evidence that these words were neutral in context. The claimant’s submissions do not identify any point in the investigation process or report where these words are said to have had an unfair impact or to have been relied on inappropriately.

[250]Second, the claimant asserts that the email from the LADO to Mr Frei on 1 August 2022 contains a distorted reflection of what the police said, as the police simply agreed they would have submitted the case to the CPS for a charging decision. This once again misses the full context of the email, which provides much fuller detail as to the position taken by the Police, and provides the LADO’s view that the allegation was substantiated. In context, what is said by the LADO is not a distortion, and in any event Mr Frei was in the LADO meetings so would have known as well as the LADO what the police position was.

[251]The claimant then asserts that the entire process that followed thereafter was destined to be unfair, that nothing could be viewed neutrally going forward and the entire process was funnelled through a viewpoint that the claimant was guilty of a terrible thing and could no longer remain employed. In this regard, the claimant refers to the following:(i) The ‘points for consideration’ in the email of 6 October 2022. The Tribunal finds that this was simply Mr Frei exploring questions which might be explored during the investigation and appear in the terms of reference. In the context of the allegations against the claimant these were reasonable questions for an employer to consider, and the email does not suggest an answer to those questions or any prejudgment;

(ii) The claimant refers to Mr Frei’s use of the term ‘sexual assault’ in this email, suggesting this is indicative of Mr Frei’s viewpoint. The context of this comment, again missing from submissions, is that this is suggested to be the finding of the LADO, and the next paragraph clearly sets out what the LADO meant by that, including that this did not denote any particular motivation. The phrase ‘sexual assault’ was used in the LADO’s description of the allegation against the claimant. Mr Frei was not referring to the legal definition of sexual assault under section 3 of the Sexual Offences Act 2003, nor did it indicate any prejudgment about the claimant’s motivations;

(iii) The claimant refers to the statement made by the claimant’s friend on 15 February 2023 and Mr Frei’s alleged comment that he had said “Well it’s not looking good for the rabbi” claimant that “the LADO has put us in a difficult position”. That individual was not called to give evidence. This allegation was not before the second respondent at the disciplinary stage. Nor is it clear what might have been meant by the comment, if it was said. It could simply have been referring to the LADO’s requirement for the first respondent to carry out an investigation. Mr Frei was not the decision maker and it does not demonstrate any prejudgment by any of the respondents.

(iv) The claimant refers to the conversation Mr Frei had with the Chief Rabbi and the statement provided by him that he “seriously questioned [the claimant’s] fitness to be a Rabbi in our community in the light of the behaviour [REDACTED].” This was included in the investigation report and was therefore before both the second and third respondent. The claimant speculates in submissions as to what might have been said to the Chief Rabbi about the allegations, however there is no evidence before the Tribunal as to what was discussed and in particular no evidence on which we could conclude that the Chief Rabbi had been told the claimant had committed sexual assault. This does not in any event match the way in which Mr Frei took pains to set out what the LADO had found substantiated in his correspondence. While it is unfortunate that the investigation report included the Chief Rabbi’s bare opinion about the matter, with nothing more to explain how he had reached that view, the Tribunal is satisfied that this statement did not in fact influence the decision to dismiss. We accept what the second respondent and third respondents have said in their evidence and held to through robust cross examination, that effectively they each wanted to come at this matter afresh and reach a decision by themselves. Further we accept what the second respondent said that he did not discuss the matter with Mr Frei before hand as he wanted to approach the matter with an independent mind. He did not go into details in his conversations with others as he wanted to keep a good state of impartiality. We also accept what was said by the third respondent in re-examination, that he would have had to explain any decision he reached to the Chief Rabbi, but that the Chief Rabbi would have had to respect his views on the outcome reached by him.

[252]In the circumstances we reject the claimant’s assertion that Mr Frei did not approach the investigation neutrally, or that anything in the investigation report or surrounding discussions inappropriately influenced the decision making of the second and third respondents. We find that Mr Frei was sufficiently independent to conduct the investigation and it was not unreasonable for him to do so. This was all the more reasonable given the respondent’s position that the number of people aware of the incident should be kept as small as possible.

[253]The claimant has not pointed to anything in particular about the investigation report which was not fair or was unbalanced, save in relation to not obtaining further medical evidence. The claimant did not, and stated that he did not, want a further report. He was content to rely on his own academic research and his own explanations. It is notable that prior to the disciplinary hearing stage the claimant was restrictive in what he was prepared to give to the respondent, and the report he obtained was heavily redacted. Given that the claimant would have needed to cooperate with any further report it is not unreasonable that the respondent did not seek to go beyond what the claimant had already provided.

[254]The next stage in the disciplinary process was the appointment of the second respondent, whom the claimant contends was an inappropriate choice to hear the disciplinary because he had a specialism in sexual offences, and that this was a clear attempt to validate the claimant’s dismissal.

[255]The claimant was told that the second respondent was a retired judge, and approved his appointment. The Tribunal finds it was reasonable for the first respondent to consider that a retired judge would address the matter in an impartial and neutral way, and could be trusted to be discreet. While he had no specific training on disciplinary matters it was reasonable to conclude that he would have sufficient knowledge of how to conduct fair disciplinary proceedings given his background as an Employment Appeal Tribunal judge. He also had equality and diversity training and engaged in his own reading in that area in his judicial capacity, including training and experience in dealing with autism and neurodiversity. [REDACTED] His experience did not mean he would either lean towards finding gross misconduct or exculpating the claimant. The Tribunal accepts his evidence that he approached the matter with an open mind. This is further supported by the second respondent’s assurance that this was the case given in the outcome letter, where he confirms that the LADO decisions (and that of the other employer) were pieces of evidence and had in no way influenced his decision, and he had endeavoured to conduct his own analysis of the evidence looking particularly at the explanation the claimant had provided, mindful of his concerns about the LADO investigation.

[256]The claimant next criticises the way in which the disciplinary hearing was conducted. We have already concluded that the second respondent did not approach the hearing in an adversarial manner. While it was necessary for him to ask difficult questions of the claimant, and to press the claimant on certain issues, we find having heard extracts from the recordings that he did so in a calm and non-aggressive manner.

[257]The claimant suggests that the second respondent ‘used his cross examination skills to try and have the claimant accept he as a sexual predator’. Related to this is the claimant’s submission that considering the claimant’s motive was a change in the nature of the allegations drafted in the terms of reference. It is noted that is not pleaded and was not included in the List of Issues.

[258]We accept the second respondent’s evidence, supported by the hearing transcripts, that while the question of the claimant’s motive was a live issue for him to consider, there were relatively few questions on this topic among the broader questioning as to what physically happened. The second respondent understood that while the investigation had not considered the claimant’s motivations, this would have to be considered by him to determine how the claimant’s actions impacted on his contract of employment. Further, it was central to the claimant’s own defence of the allegations that his motives were innocent and that was a wholly exculpating factor. Motivation was therefore something the claimant himself put forward to be explored, and it was clear from the documents the claimant prepared that he knew that this was going to be explored.

[259]As to the style of questions, the second respondent candidly accepted that he was put in a difficult position conducting an enquiry. There were no lawyers there to present the case, no statements from the [REDACTED] and he was effectively ‘judge and jury’. It was a difficult and more investigatory process. However, when it was put to him that he had formed the view that the claimant was a sexual predator and was asking him questions on that basis and wanted him to accept that, the second respondent denied this. He said the explanation (given by the claimant) had to be explored. He was considering this independently, and trying to look at things afresh. He started from the basis that the claimant had admitted some form of physical contact, and he wanted to see how that extended in terms of behaviour, and if necessary inappropriate sexual behaviour in light of the complaint made [REDACTED]. He also denied that he failed to consider the claimant’s explanation that his behaviour was the result of his autism. Questions about the claimant’s history in relationships, which the claimant now objects to, were designed to see whether there had been issues with social boundaries previously as alleged. He further made it clear that while the nature of the hearing was to concentrate on the negatives, the claimant had a good record and was well thought of in the community, i.e. the second respondent had already taken the positives, potentially mitigating factors, into account. Having read the transcript of the hearing and the disciplinary outcome we accept the second respondent’s evidence as to how he approached the matter. Although some leading questions were asked, the claimant was given a full opportunity to respond to the points which were of concern to the second respondent.

[260]We also accept the second respondent’s evidence that he did fully consider the evidence put forward by the claimant by way of explanation and mitigation. The second respondent took care to provide a detailed summary of the claimant’s position in his outcome letter which indicated he had both digested it and understood it. The letter addressed in some detail why that explanation had been rejected, namely that the second respondent had concluded that the claimant’s behaviour was knowing and deliberate. We find that this conclusion was reasonably open to the second respondent given the information before him.

[261]The claimant’s submissions also refer to the input of Dayan Gelley who had put forward his view as to the Halachic position, suggesting that ‘a finding that the claimant had a sexual motive was a useful tool with which to shut down any challenge to the dismissal’. That opinion was not produced however until the appeal stage, where Professor Eder took a different view and did not find that there was a sexual motive.

[262]The claimant criticises the second respondent for referring to matters which he found ‘strange’ and ‘concerning’, which had been explained by the claimant to be due to his autism. When this was explored in re-examination of the second respondent claimant’s Counsel indicated that she had not put that the ‘strange’ matters related to autism, so the inclusion of this point in submissions is not fully understood. In any event, we accept the second respondent’s evidence that he simply meant that there were matters which were different from the normal situation. There was a change and an incident like this had never happened previously.

[263]In the circumstances, we conclude that the second respondent had a reasonable belief that the claimant was guilty of gross misconduct, and that the procedure adopted by him during the disciplinary hearing stage of the process was within a band of reasonable responses.

[264]In any event, any potential unfairness at the disciplinary hearing stage must be viewed in the round following the conclusion of the disciplinary process, which includes the appeal, applying Taylor.

[265]We accept Professor Eder’s evidence, as supported by the appeal hearing transcripts, that he, too, considered the matter afresh and conducted his own analysis of the evidence available to determine whether the allegations had been made out and what sanction ought to be applied.

[266]There does not appear to be any significant criticism levelled at the third respondent as to the way in which he conducted the hearing, other than a suggestion that he spoke to Mr Frei beforehand. What was discussed during this encounter is clearly set out in the letter from Ms Wiltshire dated 13 March 2023, namely that the third respondent met with Mr Frei to consider the parts of the appeal which were relevant to his capacity as investigating officer, and to consider other salient matters associated with the decision that the claimant had or could bring the first respondent into disrepute. The detail of that discussion is then provided. This was not Ms Wiltshire pressing the importance of reputational damage as a reason for dismissal, as the claimant suggests, but simply setting out in a transparent manner what was discussed that the third respondent considered pertinent to his own investigations.

[267]We accept the evidence of the third respondent that while he referred to a number of additional matters outside the terms of reference in his outcome letter, these did not influence his decision to dismiss. He did not say in the outcome letter that these matters supported his decision to dismiss, as the claimant’s submissions assert, rather that they would support such a decision ‘if true’, in the context that his decision to dismiss was based on the claimant’s own account of events, but he could not accept that account in its entirety.

[268]The outcome letter sets out in considerable detail why the third respondent reached the conclusions he did, based on the claimant’s own account of events. The Tribunal finds that he did consider the claimant’s explanations and the claimant’s autism, but rejected them and gave clear reasons for doing so. We accept the evidence given by the third respondent in cross examination in this regard, that he did consider the claimant’s explanation that he had difficult with understanding social boundaries, and rejected it because the claimant said he relied on clear boundaries, and he had clear boundaries in this case. He had given examples of other situations where he had clear boundaries and had been able to follow them.

[269]We do not place any significant weight on the reference the third respondent made in passing in cross examination, ‘We are here about a sexual misconduct matter.’ The claimant’s submissions once again fail to provide the full quotation of the evidence or its surrounding context. This quote was in the context of questions about the inclusion in the third respondent’s witness statement in relation to unredacted parts of the [REDACTED] [J] report which concerned him, it being put that this had been done to embarrass the claimant and cast him in a negative light. We do not find that in saying this the third respondent was making any concession that he had concluded the claimant had or may have had a sexual motive. The third respondent was clear and persuasive in his evidence that it was what had transpired that concerned him and he only referred to what he believed happened, rather than the intent. The claimant appears to be suggesting that removing references to intention in the appeal outcome was a deliberate ploy by the first respondent to ‘row back’ from overt conclusions made by the second respondent about sexual motive. There is no evidence whatsoever to support such a conclusion. Rather, the Tribunal finds that the third respondent’s conclusions are indicative that he approached the matter with an independent mind and was not simply swayed by the conclusions reached by the second respondent.

[270]In conclusion, we find that the third respondent also held a reasonable belief that the claimant was guilt of gross misconduct in relation to the incident [REDACTED].

[271]Three other points arise from the list of issues which are not expressly dealt with in the claimant’s submissions:(i) It is suggested that the first respondent did not take into account the claimant’s service record and/or the seriousness of the allegations. It cannot realistically be suggested by the claimant that the allegations against him were not of a serious nature. In any event, the second respondent referred explicitly to the claimant’s good standing in the disciplinary hearing and we find he took this into account. We accept the third respondent’s evidence that he took into account the gravity and impact the conclusions he reached on the claimant’s career but concluded that the only option was to dismiss. It was not put to him that he did not consider or ought to have treated differently the claimant’s service record;

(ii) The claimant contends that the claimant did not commit an act of gross misconduct on the basis that there was no deliberate wrongdoing or gross negligence. This is a misunderstanding of the legal position. The correct test in relation to unfair dismissal, as opposed to wrongful dismissal, is that set out in Hope.

(iii) The claimant contends that the respondent did not have reasonable grounds to assert that the claimant has brought or potentially would bring the first respondent into disrepute. The Tribunal concludes that the reputational risks involved in this matter were clear and obvious and the claimant has not been able to point to anything unreasonable in the conclusions reached by the second and third respondents in this regard.

[272]In relation to the allegation regarding the videos, the Tribunal has considered the submissions made by the claimant however finds that this was very much a lesser matter in the overall decision to dismiss. It does not even feature in the ‘Key issues and determination’ section of the second respondent’s outcome letter and merited only a passing reference in the conclusion section.

[273]The third respondent goes into more detail in relation to his findings, noting that he had taken into account the claimant’s mental health at the time and autism diagnosis, but notes that this incident would not have led to a decision to dismiss, in itself, but was supportive of the conclusion already reached in relation to the incident [REDACTED] that dismissal was the appropriate outcome.

[274]In the circumstances the Tribunal finds that the second allegation was very much in the background and was not the real reason for dismissal, which was squarely based on the conclusions reached in relation to the incident [REDACTED].

[275]Taking all these matters into the round, the Tribunal finds that the respondent’s decision to dismiss was well within the band of reasonable responses open to it.

[276]The Tribunal therefore concludes that the dismissal was fair, and the complaint of unfair dismissal fails. Wrongful dismissal

[277]The first task in determining a claim for wrongful dismissal is to consider what actually occurred. Our findings as to what occurred on 16 May 2022 are set out at paragraphs 29 to 55 above. We find that the claimant’s actions transgressed [REDACTED] boundaries. We are supported in this finding by the conclusions reached in the [REDACTED] [J] report.

[278]We reject the claimant’s assertion that his behaviour at this point in time was because he [REDACTED] had difficulty recognising the social boundaries because of his ASD. As discussed above in relation to the section 15 claim, there is insufficient evidence to show any such link between the claimant’s ASD and his actions on this occasion. There were well established boundaries in place, which he was aware of not only from his own knowledge of Shomer Negiya as a Rabbi, but also because he had received guidance about Shomer Negiya [REDACTED] previously from Dayan Gelley. The claimant’s case at its highest was that he was confused as to the boundaries which he ought to have applied [REDACTED]

[279][REDACTED]

[280]Having established what we find occurred, we go on to determine whether this amounted to a breach of the express contractual terms relied on by the first respondent.

[281]Clause 8.2 of the contract required the claimant not to do anything which was harmful to the interests and reputation of the first respondent. We find that the reputational risk to the first respondent [REDACTED] was obvious and considerable, given the claimant’s position of trust in the community and the nature of his role, [REDACTED] The claimant’s insistence that nobody was going to tell anybody about it and that he shouldn’t be dismissed because of what others might disclose displays a considerable lack of insight. [REDACTED] Had the first respondent allowed the claimant to remain in employment there was the potential for enormous damage to its reputation. We find that the claimant did act in a way which was harmful to the interests and reputation of the first respondent, such that clause 8.2 was breached.

[282]Given what we have found happened on 16 May 2022, and having rejected the claimant’s explanation that this was as a result of his ASD, it is clear there was a breach of clause 14.1 of the contract, the claimant having committed serious misconduct in that his behaviour [REDACTED] was manifestly inappropriate and transgressed [REDACTED] boundaries. We find that what was done [REDACTED] was not appropriate behaviour [REDACTED], and amounted to a gross breach of [REDACTED] trust, [REDACTED] Given the nature of the claimant’s work as a Rabbi we also conclude that there was a breach of the requirement to behave in a manner which was inconsistent with his standing as a Rabbi of the first respondent, particularly bearing in mind that it was part of his role to instruct others in the correct modes of behaviour [REDACTED]

[283]In the circumstances the first respondent was entitled to summarily dismiss the claimant based on seriousness of the conduct, the obvious reputational risk, and the incompatibility of what he had done with his standing as a Rabbi.

[284]In the circumstances the complaint of wrongful dismissal fails.

[285]Given this finding the Tribunal has not considered it necessary to go on to reach further conclusions in relation to the posting of videos. Judge’s Note

[286]Employment Judge Keogh apologises for the length of time it has taken to produce this judgment, which was as a result of her absence due to personal circumstances. Further time was then taken to deal with the parties’ applications under Rule 49. Costs

[287]The respondent applies for costs limited to £20,000 under Rule 76, and contends that the claimant’s claims had no reasonable of success, that the claimant acted unreasonably in bringing and pursuing the claim, and that he also acted unreasonably in his conduct of proceedings.

[288]The claimant provided a witness statement on the issue of costs. We heard sworn evidence from the claimant and oral submissions from both parties.

[289]Rule 74 of the Employment Tribunal Procedure Rules 2024 provides: “(2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,

(b) any claim, response or reply had no reasonable prospect of success …”

[290]Rule 76 provides: “(1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party”

[291]Rule 82 provides: “In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.”

[292]We have first considered whether the claims had no reasonable prospects of success and whether it was unreasonable to bring the proceedings. At the very start of this matter is the undisputed fact that there was an incident between the claimant and [REDACTED], and the claimant knew that same day both that he had breached Jewish law, and that [REDACTED] considered his actions to be inappropriate. He ought to have known the seriousness of the matter because of the involvement of police, social services and the Council’s LADO meetings taking place. By the start of the proceedings, the claimant had the [REDACTED] [J] report which set out clearly that he had transgressed appropriate boundaries. We consider however the claimant genuinely believed that he had legitimate concerns with the way in which the disciplinary process was conducted and questions as to whether his autism had contributed to his actions. We have more difficulty with whether this was a reasonably held belief. We have not dissected the precise course of the legal proceedings, nor have the parties invited us to, however we consider by the time the parties reached the final hearing, with disclosure having been given and exchange of witness statements and medical evidence having been obtained (which we will come back to), he and/or his legal advisers ought to have appreciated on the totality of the evidence to be put before the Tribunal at that point there were no reasonable prospects of success. This is supported by our strong findings against the claimant throughout our judgment which the respondent relies on in its application. We take into account the without prejudice letter from the respondent dated 17 June 2024 which, while short, puts the claimant clearly on notice that the respondents took the view there were no reasonable prospects and warned him that costs would be pursued should he proceed to the final hearing. We consider it was not reasonable for him to pursue the matter further at that point. The threshold at which we must consider whether to make an order for costs under Rule 74(2)(a) and (b) have therefore been met, as at the point of the final hearing.

[293]We also consider however that the claimant has acted unreasonably in the conduct of proceedings, further meeting the threshold under Rule 74(2)(a).

[294]We accept the points made in in the respondent’s application at paragraphs 8.1 and 8.2. In respect of the medical evidence, we have made findings that the claimant posed leading questions to Dr Conning, posed irrelevant questions, and did not give Dr Conning a full and frank account of the incident or the Jewish laws and therefore the boundaries he knew were in place. Moreover he transgressed the role of Dr Conning as an independent expert by asking her advice as to the content of his impact statement. His legal advisers at least ought to have known that the report was prepared in an improper manner. Further, and relevant to the matters discussed earlier and the prospects of success, that the medical evidence before the Tribunal in this form would not assist the claimant’s case because it was so unreliable.

[295]We are satisfied that the claimant’s conduct in pursuing proceedings to the final hearing that he ought reasonably to have known were unmeritorious and in the way in which the proceedings were conducted is sufficiently serious that it is in the interests of justice we exercise our discretion to award costs.

[296]We consider we ought to take into account the claimant’s ability to pay under Rule 82, not least because he is the main bread winner in respect of his wife and all his children.

[297]We have considered the calculations presented by the claimant. He has disposable income of £364 per month on his own account, given his pay rise. The claimant is currently paying child support in respect of four children from his previous marriage. One of those children is now 19 which reduces that figure, and one is 17 so within the year the figure will reduce again, halving it and providing an additional £197 of disposable income per month.

[298]The claimant is setting aside £1,500 per month for legal fees, both past and potentially future. He has some debt in respect of past legal fees but was not able to give us a clear sum. It is significantly less than the figure given in his statement. We consider the claimant is prioritising his own legal debts over those of the respondent, who have incurred very significant costs in defending unmeritorious proceedings and are now unrepresented as a result.

[299]Within a year therefore the claimant should have at his disposal, including the sums he is now setting aside for legal fees, in the region of £2,000 per month.

[300]The respondent is only seeking £20,000, which is a small proportion of the total costs incurred, even if costs were only considered from the start of the hearing.

[301]We consider that the claimant ought to be able to pay such costs within a reasonable period, and that in this case the full sum sought of £20,000 ought to be awarded. We make a judgment for payment within 28 days. If the claimant is unable to pay those sums straight away, this is a question for the respondent and for enforcement.

Conclusions

[1]The claimant was given a full and fair opportunity to make representations to the Tribunal in relation to the respondents’ costs application. It is noted that while the claimant was not represented on the day, his witness statement on costs, which contained a mix of evidence and submissions, was prepared at a time when he was legally represented. His witness statement and oral submissions were considered in full by the Tribunal.

[2]The cases of Madu v Loughborough College and Iyieke v Bearing Point Ltd were not brought to the attention of the Tribunal. Nevertheless the Tribunal did give special consideration to the claimant’s position, and in particular acknowledged that at the outset of the proceedings the claimant subjectively genuinely believed that he had legitimate concerns with the way in which the disciplinary process was conducted and questions as to whether his autism had contributed to his actions (Judgment paragraph 292). However, the position of the claimant is distinguishable from that of Mr Madu, who was a litigant in person for a substantial period including at the outset of the claim, whereas the claimant was legally represented for the majority of the proceedings. The Tribunal was entitled to take into account the change in the claimant’s position in the present case and what he and/or his legal advisers ought to have recognised by the time preparation for the hearing, including disclosure, witness statement exchange and medical evidence having been obtained (Judgment paragraph 292). As to the guidance of HHJ Auerbach in Iyieke, the Tribunal did consider this was a case where before the final hearing the claimant should have been abundantly aware what the position was, both from the obvious seriousness of the matter which he knew from the outset, the evidence which had been exchanged, and the costs warning letter from the respondents.

[3]The claimant submitted in his witness statement that there had been no strike out or deposit application, and that submission was taken into account.

[4]The application for reconsideration misrepresents the Tribunal’s conclusions as to unreasonable conduct in the proceedings, which was separate to and not predicated upon the finding that there were no reasonable prospects of success, and was not to do with the claimant’s initial belief as to the merits of the matter. The Tribunal agreed with the respondents in relation to the matters set out in paragraphs8.1 and

8.2 of their application for costs as constituting unreasonable conduct (Judgment 294), which included that:

4.1 The claimant had taken up time applying for irrelevant material to be added to the bundle on the basis that it would be relevant to cross examination, which was not then referred to;

4.2 The claimant took a selective approach to disclosure and failed to cooperate with the respondent, which resulted in considerable time being unnecessarily taken up at the hearing.

[5]Further it was found that there were serious failings in relation to Dr Conning’s evidence (Judgment paragraph 294).

[6]The Tribunal did consider the nature and effect of the unreasonable conduct (Judgment paragraph 294) and its gravity, finding the matters cumulatively to be sufficiently serious to justify the Tribunal exercising its discretion to award costs (Judgment paragraph 295).

[7]The remainder of the costs judgment in respect of the amount of costs appears to be unchallenged.

[8]In the circumstances there is no prospect of the original decision being varied or revoked.

[9]The Tribunal apologises for the delay in this decision being sent to the parties, which was as a result of administrative delay in the application being put before Employment Judge Keogh.